Rock-Tenn Co. v. N.L.R.B., ROCK-TENN
| Citation | 69 F.3d 803 |
| Decision Date | 03 November 1995 |
| Docket Number | ROCK-TENN,CLC,95-1706,AFL-CI,Nos. 95-1347,s. 95-1347 |
| Parties | 150 L.R.R.M. (BNA) 2714, 64 USLW 2336, 131 Lab.Cas. P 11,444 COMPANY, Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner, and United Paperworkers International Union,and its Local 907, Intervenor. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Larry E. Forrester (argued), James Chadwick Hatmaker, Atlanta, GA, for Rock-Tenn Company.
Charles P. Donnelly, Jr., National Labor Relations Board, Contempt Litigation Branch, Washington, DC, Aileen A. Armstrong, John D. Burgoyne (argued), Steven F. Rappaport, National Labor Relations Board, Appellate Court, Enforcement Litigation, Washington, DC, William T. Little, National Labor Relations Board, Region 25, Indianapolis, IN, for N.L.R.B.
Nora L. Macey (argued), Macey, Macey & Swanson, Indianapolis, IN, for United Paperworkers International Union, AFL-CIO-CLC, and its Local No. 907.
Before BAUER, COFFEY, and EVANS, Circuit Judges.
Rock-Tenn Company ("Rock-Tenn") petitions this court for review of an order issued by the National Labor Relations Board ("Board"). The Board found that Rock-Tenn committed numerous violations of the National Labor Relations Act ("Act"). 29 U.S.C. Secs. 151-160. The Board filed a cross-petition seeking enforcement of the order. For the following reasons, we deny Rock-Tenn's petition and enforce the Board's order.
Rock-Tenn manufactures, sells and distributes recycled paperboard and related products. On February 22, 1991, following a Board-conducted election, the United Paperworkers Union ("Union") was certified as the exclusive bargaining representative for Rock-Tenn's production and maintenance employees. Rock-Tenn and the Union began bargaining for an initial contract on May 20, 1991. In late May, an employee, Glenda Sowders, gave Rock-Tenn's General Manager Roy Young a copy of an anti-union petition containing approximately 60 out of a possible 155 or 156 employees' names. The petition stated that: "We the undersigned feel that it is not in our best interests to be represented by the United Paperworkers Union." In June 1991, Sowders resubmitted the same petition with a total of 80 names.
From May 1991 through October 10, 1991, the parties met 15 times and made some progress towards a contract. As of early October, Rock-Tenn had not revealed the existence of the May petition. In late September, while negotiations continued on the initial contract, Sowders and another anti-union employee, Holly Trimble, discussed their opposition to the Union with General Manager Young. Young suggested that they circulate a decertification petition and dictated to them the appropriate decertification language.
Rock-Tenn assisted Trimble in circulating the petition by various means. In mid-October, Sowders gave Young part of the decertification petition with approximately 66 signatures, including 11 employees who had not signed the May petition. Young added these 11 new names to the 80 from the May petition and concluded that over half of the bargaining unit members were dissatisfied with the Union.
At a bargaining session on October 16, 1991, Rock-Tenn's Counsel, Larry Forrester, declared that management had received evidence that the Union no longer had majority support of its members and it therefore would be inappropriate for Rock-Tenn to bargain with the Union beyond the certification year. Accordingly, Rock-Tenn proposed a contract that would expire February 22, 1992. Rock-Tenn did not identify either the May or September petitions as the basis for its belief, stating only that its position was based on objective evidence and should not be taken frivolously.
In response to management's stance, the Union began to shore up its support. On October 17, 1991, the Union held a rally and informed management that more employees had participated in the rally than in any prior demonstration. In response, Forrester reiterated management's position that the Union had lost majority support and repeated Rock-Tenn's insistence on a contract coextensive with the certification year. On October 18, 1991, unit employees soundly rejected Rock-Tenn's contract offer.
In response to management's insistence that the Union lacked majority support, the Union began a drive to collect employees' signatures on membership applications. The parties did not meet again until December 6, 1991. From October until early December, Rock-Tenn actively discouraged the Union's membership drive. Nevertheless, by the time the parties returned to the table on December 6, the Union had collected 91 signed membership cards and Union representative Dan Ferson informed management that the Union had secured signed applications from a majority of unit employees. In response to management's skepticism, Ferson proposed that a neutral mediator check the cards to settle the question of majority support. Rock-Tenn refused. Its offer of a contract coextensive with the certification year was final. Following this meeting, Ferson took Rock-Tenn's offer back to the members, who voted to accept it.
Meanwhile, the anti-union employees were still working on their decertification petition. As of December 6, 1991, the petition contained, at most, 69 signatures. On December 10, 1991, Sowders and Trimble filed their decertification petition with the Board. Also on December 10, the Union wrote to management seeking to negotiate a successor agreement to the contract set to expire on February 22, 1992. The Union requested Rock-Tenn to furnish certain pertinent information. Rock-Tenn responded on February 18 that it refused to release the information and that it would not recognize the Union beyond February 22, 1992. Finally, on February 22, 1992, Rock-Tenn formally withdrew recognition of the Union.
The Union filed a variety of unfair labor practice charges alleging violations of Secs. 8(a)(1), (3), and (5) of the Act, 29 U.S.C. Secs. 158(a)(1), (3), and (5), and an administrative law judge ("ALJ") heard the case in January 1993. On May 25, 1993, the ALJ found that Rock-Tenn violated Sec. 8(a)(1) of the Act by unlawfully supporting its employees' September decertification petition. 29 U.S.C. Sec. 158(a)(1). In addition, the ALJ found that Rock-Tenn had engaged in a variety of anti-union activity that violated Sec. 8(a)(1). The ALJ also found that Rock-Tenn had committed a series of Sec. 8(a)(3) violations by discriminatorily disciplining employees for engaging in union activities and by discriminatorily denying employees leaves of absence in order to engage in union activities. 29 U.S.C. Sec. 158(a)(3).
Finally, the ALJ concluded that Rock-Tenn violated Secs. 8(a)(5) and (1) of the Act by, inter alia, failing and refusing to bargain in good faith with the Union during the certification year; by insisting on a contract term co-extensive with the certification year; and by withdrawing recognition from the Union at the conclusion of the certification year and thereafter by refusing to meet and bargain with the Union without possessing a reasonable belief based on objective considerations that the Union no longer enjoyed majority support of the unit employees. 1 29 U.S.C. Secs. 158(a)(5) and (1).
As remedies, the ALJ issued a broad cease and desist order prohibiting Rock-Tenn from infringing in any manner on rights guaranteed employees by Sec. 7 of the Act. 29 U.S.C. Sec. 157. The ALJ also ordered Rock-Tenn to bargain with the Union, and extended the Union's initial certification period for another year.
The Board affirmed the ALJ's order, adopting all of the ALJ's legal conclusions except the remedial order where the Board shaved the extension of the certification period from a full year extension to six months. Rock-Tenn petitions this court for review of the Board's order. The Board cross-petitions seeking enforcement of its order.
We have jurisdiction over the parties' petitions pursuant to 29 U.S.C. Secs. 160(e) and (f). The Board's findings of fact are "conclusive" when supported by substantial evidence on the record as a whole. N.L.R.B. v. Dominick's Finer Foods, Inc., 28 F.3d 678, 683 (7th Cir.1994). Substantial evidence means evidence that reasonable minds might accept as adequate to support a conclusion. Central Transport, Inc. v. N.L.R.B., 997 F.2d 1180, 1184 (7th Cir.1993). We also review the Board's application of law to fact under the substantial evidence standard. Id. We will uphold the Board's conclusions of law unless they are "irrational or inconsistent with the Act." Id. (quoting U.S. Marine Corp. v. N.L.R.B., 944 F.2d 1305, 1314 (7th Cir.1991), cert. denied, 503 U.S. 936, 112 S.Ct. 1474, 117 L.Ed.2d 618 (1992)). Finally, we give great deference to the Board's choice of remedy. "Once the Board has spelled out the basis for its issuance of a bargaining order, this court's review is limited to whether the Board abused its discretion." Ron Tirapelli Ford, Inc. v. N.L.R.B., 987 F.2d 433, 438 (7th Cir.1993) (quoting Montgomery Ward & Co. v. N.L.R.B., 904 F.2d 1156, 1159 (7th Cir.1990) (citations omitted)).
Initially, we need to clarify which violations are at issue. Rock-Tenn does not contest the Board's findings that it violated Sec. 8(a)(1) by acts of assistance to anti-union petitions, attempts to interfere with the Board's processes, interrogation, threats of discipline for union activities, and denial of Weingarten 2 rights. Rock-Tenn also does not contest the Board's findings that the company violated Sec. 8(a)(3) of the Act by discriminatorily disciplining employees and discriminatorily denying leaves of absence for engaging in union activities. Accordingly the Board's order with respect to these issues is summarily enforced. U.S. Marine Corp. v. N.L.R.B., 944 F.2d at 1314. However, these uncontested violations do not disappear altogether. "[T]hey...
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