N.L.R.B. v. Midwestern Personnel, 02-2209.

Citation322 F.3d 969
Decision Date11 March 2003
Docket NumberNo. 02-2566.,No. 02-2209.,02-2209.,02-2566.
PartiesNATIONAL LABOR RELATIONS BOARD, Petitioner/Cross-Respondent, v. MIDWESTERN PERSONNEL SERVICES, INC., Respondent/Cross-Petitioner.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
322 F.3d 969
NATIONAL LABOR RELATIONS BOARD, Petitioner/Cross-Respondent,
v.
MIDWESTERN PERSONNEL SERVICES, INC., Respondent/Cross-Petitioner.
No. 02-2209.
No. 02-2566.
United States Court of Appeals, Seventh Circuit.
Argued December 2, 2002.
Decided March 11, 2003.

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Christopher W. Young (Argued), National Labor Relations Board, Contempt Litigation Branch, Washington, DC, Frederick C. Havard, National Labor Relations Board, Appellate Court, Enforcement Litigation, Washington, DC, Roberto G. Chavarry, National Labor Relations Board, Region 25, Indianapolis, IN, for Petitioner/Cross-Respondent.

James U. Smith, III (Argued), Smith & Smith, Louisville, KY, for Respondent/Cross-Petitioner.

Before BAUER, POSNER, and ROVNER, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.


Midwestern Personnel Services refused to reinstate 26 striking employees after

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the union that a majority of its employees had selected as their bargaining representative made an unconditional offer to return to work. Midwestern refused to reinstate the strikers because, in its view, the strike was staged solely for economic reasons, which if true would permit it to permanently replace the strikers. But the National Labor Relations Board concluded that the strikers were motivated in part by unfair labor practices, and thus were entitled to immediate reinstatement under Sections 8(a)(3) and (a)(1) of the National Labor Relations Act ("NLRA"), 29 U.S.C. §§ 158(a)(3), (a)(1). The Board now petitions for enforcement of its order to reinstate the strikers, and Midwestern petitions for review. Because we conclude that substantial evidence on the record as a whole supports the Board's conclusions, we grant the petition for enforcement and deny the petition for review.

I.

Midwestern provides cement and transport truck drivers to River City Holdings, Inc., which sells concrete mix and related products from facilities located in Boonville and Rockport, Indiana, and Owensboro, Kentucky, as well as other locations. As of early 1997, Midwestern supplied between 40 and 50 drivers to the three River City facilities. In April 1997, River City announced to Samuel Ware, Midwestern's president, that it had agreed to supply cement products to a job site known as the "AK Steel job" from its Rockport plant, and that it would need to increase the number of drivers working out of Rockport from seven to about sixteen. River City also informed Ware that AK Steel was a union job site, and that it understood that Midwestern's drivers would need to hold union authorization cards in order to enter the property.

Midwestern's Indiana and Kentucky drivers were not union-represented. But at the time Midwestern had a collective bargaining agreement with the Chauffeurs, Teamsters, and Helpers ("Teamsters") Local Union 836 in Middletown, Ohio, covering Midwestern's employees based in York, Pennsylvania, although none of these employees worked at River City facilities. Ware placed a call to Local 836's business agent, Tom Kinman, whom he had dealt with in the past, to inquire whether Local 836 would "come into" Indiana. Kinman responded that it would and agreed to meet with the Rockport drivers on June 2, 1997. Ware then told James Teegarden, Midwestern's area manager, that he planned on adding the Rockport drivers within the coverage of the existing collective bargaining agreement with Local 836. To help him prepare for the meeting with the drivers, Teegarden sent Kinman information about Midwestern's Indiana operations and employees. Shortly before the meeting took place, Ware and Kinman negotiated the terms of the addendum. They agreed that the Rockport drivers would receive a 20-cent per hour raise (Kinman insisted on this) but would otherwise maintain their existing benefits and terms of employment. In all other respects, the addendum was identical to the contract covering the York employees, which included a no-strike clause.

Ware typed the addendum himself sometime on June 2, 1997. That same evening, Midwestern's seven Rockport drivers, accompanied by Teegarden, met Kinman at a local restaurant after their shifts. Teegarden opened the meeting by circulating an attendance sheet and directing each driver to sign it, and by introducing Kinman, who distributed unsigned union authorization cards. Teegarden then told the drivers about the AK Steel job and explained that AK Steel was unionized and that they would have to join the union to enter its property. Teegarden further explained that this meant that the drivers would have to join the union if they wanted

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to keep working at Rockport. Teegarden then announced that Midwestern and Teamsters Local 836 were prepared to include them in the existing collective bargaining agreement. Teegarden then left the room to allow Kinman to speak. Between 15 and 45 minutes later (the precise time is disputed) one of the drivers asked Teegarden to come back into the meeting to answer a question. The driver asked Teegarden what would happen if the drivers signed the authorization cards but still did not want to join Local 836. Teegarden responded that if they voted to let the union in, they would have to join the union to continue driving trucks out of Rockport, "or something to that effect," he would later testify. At the end of the meeting, all seven drivers signed the cards, but no formal vote was taken whether to join Local 836. The following day, Kinman faxed copies of the signed cards to Ware.

Discontent soon arose among the drivers about what they perceived as being forced to join an out-of-state union. Word of their unhappiness quickly spread to Teamsters Local 215 in Evansville, Indiana, which then sought to organize Midwestern's Rockport, Boonville, and Owensboro drivers. By July 1997, several drivers from each location had signed union authorization cards with Local 215, and on July 29, Local 215 filed unfair labor practices charges with the NLRB against Midwestern. Local 215 also filed an internal grievance with the International Brotherhood of Teamsters ("IBT") complaining that Local 836—which by then had merged with Teamsters Local 100 in Cincinnati and was known as Local 836/100—violated internal union rules by entering Local 215's territory. On September 11, 1997, Local 836/100 informed Midwestern that it was returning all dues remitted by the Rockport drivers for August 1997, and that all future dues should be sent to Local 215 in Evansville. Local 836/100 also informed the IBT that it did not oppose "transferring" the Rockport drivers to Local 215, although Local 836/100 did not formally disclaim its interest in representing the Rockport drivers until December 5, 1997.

On October 1, 1997, Midwestern received a letter from Local 215 announcing that Local 215 represented a majority of Midwestern's drivers working from River City's Rockport, Boonville, and Owensboro facilities, and requesting recognition as the drivers' bargaining unit. Midwestern did not respond favorably to Local 215's letter, and soon Ware began to hear rumors of a strike. In late November, Ware dispatched Teegarden to meet with the drivers and determine whether the rumors were true. After learning that the rumors were indeed true, Teegarden warned the drivers that they were still subject to the collective bargaining agreement between Midwestern and Local 836/100, including its no-strike clause. The drivers then demanded a meeting with Ware. Ware met with the drivers on December 1 and 2, and he repeated Teegarden's warning, admonishing the drivers that the no-strike clause in the Midwestern-Local 836/100 contract permitted Midwestern to terminate and permanently replace any striking employees. Ware added that Midwestern might also take disciplinary measures or legal action. Some of the drivers responded by demanding representation by a local union rather than one based in Ohio.

Ware followed up the meetings by mailing a letter to each employee confirming Midwestern's position that the collective bargaining agreement with Local 836/100 was enforceable "until proven different by the NLRB" (a hearing before the Board on Local 215's unfair labor practices charges was scheduled for January 20, 1998); that Midwestern would consider any strike to be a violation of the no-strike clause and hence unprotected by federal labor law; and that Midwestern would terminate,

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discipline, or sue strikers. Shortly after this, Ware received a letter from Local 836/100 disclaiming representation of the Rockport drivers. This prompted Ware to contact Local 215, and a short time later Ware met with Lewis Smith, Local 215's secretary-treasurer, and Joe DiMatteo, Local 215's business representative, to discuss the terms of the collective bargaining agreement with Local 836/100 and possible settlement of the unfair labor practices charges then pending before the Board. Ware made known his beliefs that Local 836/100 had transferred its representation of the Rockport drivers to Local 215, and that the contract with Local 836/100 "went with the transfer" and remained effective. By letter a few days later, Ware offered to recognize Local 215 if the union agreed to the terms in the agreement between Midwestern and Local 836/100, and if Local 215 withdrew its pending unfair labor practices charges with the NLRB. Smith later called Ware to follow up, but nothing was resolved.

The drivers met at Local 215 on January 13, 1998, a week before the hearing on the union's unfair labor practices charges. After listening to a progress report from Smith and DiMatteo on their negotiations with Midwestern, several drivers, including Chris Means and Gerald Fickas, complained of harassment and threats by the company for expressing their willingness to strike. They also complained that Midwestern had "shoved a local out of Ohio down their throats," and that the company continued to threaten them with the...

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