904 F.2d 397 (7th Cir. 1990), 89-1074, N.L.R.B. v. Lovejoy Industries, Inc.

Docket Nº:89-1074.
Citation:904 F.2d 397
Case Date:June 14, 1990
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 397

904 F.2d 397 (7th Cir. 1990)




No. 89-1074.

United States Court of Appeals, Seventh Circuit

June 14, 1990

        Argued Nov. 7, 1989.

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        Aileen A. Armstrong, Leizer Goldsmith, N.L.R.B., Appellate Court--Enforcement Litigation, Charles P. Donnelly, Jr., N.L.R.B., Washington, D.C., Harvey A. Roth, N.L.R.B., Chicago, Ill., for petitioner.

        Larry G. Hall, Matkov, Salzman, Madoff & Gunn, Chicago, Ill., for respondent.

        Before WOOD, Jr., COFFEY, and EASTERBROOK, Circuit Judges.

        EASTERBROOK, Circuit Judge.

        During October 1987 the NLRB conducted an election among production and maintenance employees of a factory at which the Acme Die Casting division of Lovejoy Industries manufactures zinc and aluminum die castings. The union won by a vote of 69 to 39. The employer lodged objections to the union's conduct before the election. After its regional director investigated these and concluded that a hearing was unnecessary, the Board certified the union as the representative of the labor force. Lovejoy refused to bargain with the union; the Board held that the refusal is an unfair labor practice and directed Lovejoy to bargain. The Board asks us to enforce this order. Lovejoy's principal defense is based on 29 C.F.R. Sec. 102.69(d), which states that a hearing "shall be conducted with respect to those objections or challenges which the regional director concludes raise substantial and material factual issues."

        Lovejoy's objections to the election fall into four categories: threats by union adherents, vandalism the firm attributes to the union, marking of sample ballots, and a request for concessions. The latter two are of little consequence.

        A few days before the vote, the company posted an official notice of election, including a sample ballot. Someone quickly put a blue "X" in the "yes" box. The company replaced it with a fresh notice; it was marked in the same fashion within hours and promptly removed. The third time was the charm, for the next notice went unmarked through the election. As the regional director concluded, such transient (and transparent) conduct had no substantial ability to affect the election. Bank of India v. NLRB, 808 F.2d 526, 540-41 (7th Cir.1986).

        The union's request for benefits followed an assembly at which the employer's president told employees that the firm would not dismiss anyone for supporting the union. The next morning several of the union's adherents asked the president to sign a statement "that if the [union] loses the election ... there will not be any layoffs at Acme Die Casting". He refused, on the ground that such a pledge not only would enlarge the promise not to penalize people for supporting the union but also

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would run afoul of the rule that during a campaign employers may not extend benefits out of the regular course. A no-layoff pledge, most unusual for a manufacturing plant facing cyclical demand, would have gotten the firm in hot water. NLRB v. Exchange Parts Co., 375 U.S. 405, 84 S.Ct. 457, 11 L.Ed.2d 435 (1964). We may assume that the employees' demand was calculated to give the union a talking point: the firm vowed not to use retaliatory layoffs, but it would not put a no-layoff pledge in writing and so was two-faced. Still, employees heard what the president said and could judge for themselves the significance of the refusal to sign the union's broader language; the firm was free to say why it balked. The Board no longer gives close scrutiny to the electioneering tactics of either side. Midland National Life Insurance Co., 263 N.L.R.B. 127 (1982). Petty wrangles of this kind do not justify undoing the outcome of an election.

        Lovejoy's first two objections are more substantial. For convenience we shall treat them together. Because the regional director did not hold a hearing, we have only the employer's version of events. Even this may be incomplete, for Lovejoy asserts that some employees, frightened by what happened during the campaign, feared retaliation and so would not furnish statements for public consumption. At a hearing Lovejoy would have had access to compulsory process, and its inability to compel the employees to speak is at the core of its objections to the Board's procedures.

        According to employee Alfred McCann, Sacramento Olivaros learned that McCann did not support the union and told McCann that he had better "watch out" and "look out". A few days later, someone scratched the side of McCann's...

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