Kankakee-Iroquois County Employers' Ass'n v. N.L.R.B.

• Decision Date: 19 June 1987
• Docket Number: No. 86-1627,KANKAKEE-IROQUOIS,86-1627
• Citation: 825 F.2d 1091
• Parties: 125 L.R.R.M. (BNA) 2820, 107 Lab.Cas. P 10,032 COUNTY EMPLOYERS' ASSOCIATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Truck Drivers, Oil Drivers, Filling Stations and Platform Workers Union, Local 705, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Intervening- Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1091

825 F.2d 1091

125 L.R.R.M. (BNA) 2820, 107 Lab.Cas. P 10,032

KANKAKEE-IROQUOIS COUNTY EMPLOYERS' ASSOCIATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent and Truck Drivers, Oil Drivers, Filling Stations and Platform Workers Union, Local 705, a/w International Brotherhood of Teamsters, Chauffeurs Warehousemen & Helpers of America Intervening- Respondent.

No. 86-1627.

United States Court of Appeals Seventh Circuit.

Argued Dec. 11, 1986.

Decided June 19, 1987.

Karl W. Grabemann, McDermott, Will & Emery, Chicago, Ill., for petitioner.

John Burgoyne, Elliott Moore, N.L.R.B., Washington, D.C., William A. Widmer, III, Carmell, Charone, Widmer & Matthews, Ltd., Chicago, Ill./ for respondents.

Before BAUER, Chief Judge, COFFEY and EASTERBROOK, Circuit Judges.

COFFEY, Circuit Judge.

On appeal, petitioner Kankakee-Iroquois County Employers' Association ("KICEA") seeks to set aside a decision of the National Labor Relations Review Board ("NLRB") holding that the intervening-respondent the Truck Drivers, Oil Drivers, Filling Stations and Platform Workers Union, Local 705 ("Local 705") did not violate section 8(b)(3) and 8(b)(1)(B) of the National Labor Relations Act, 29 U.S.C. Secs. 158(b)(3), 158(b)(1)(B). We decline to set aside the decision of the NLRB and deny KICEA's petition for review.

I

The petitioner, the Kankakee-Iroquois County Employer's Association ("KICEA"), represents thirteen employers in their collective bargaining with the Truck Drivers, Oil Drivers, Filling Stations and Platform Workers Union, Local 705, Affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America ("Local 705"). Between 1973 and 1983, KICEA and Local 705 agreed to adopt the provisions of the collective bargaining agreements negotiated between the Mid-America Regional Bargaining Association ("MARBA") and a group of six local unions, including Local 705. In 1983, KICEA requested separate negotiations with Local 705. The union complied with this request, and representatives of Local 705 met with representatives of KICEA on four occasions, May 17, June 17, July 8, and July 15, 1983. At each session, KICEA insisted that the labor contract reflect the unique economic conditions existing in the counties of Kankakee and Iroquois, Illinois. The union argues that it was attempting to improve and obtain uniform working conditions for workers employed by companies represented by KICEA and MARBA.

At the first bargaining session on May 17, 1983, Local 705 and KICEA each presented their contract proposals. Local 705's initial proposal to KICEA was the same as its proposal to MARBA. After the first session, a Local 705 negotiator stated that "there aren't going to be two contracts down in Kankakee, that is for sure." The comment was made in the context of the parties' scheduling of a second bargaining session.

On June 17, 1983, the two parties met for a second time. At this meeting, the Local 705 negotiator advised the KICEA representatives that it had reached a tentative agreement with MARBA and outlined the terms of that agreement. At this session, the union continued to press for uniform working conditions for workers employed in companies represented by KICEA and MARBA while KICEA sought concessions from Local 705. On June 26, 1983, the local unions, including Local 705, ratified the MARBA agreement. A majority of the members of the six local unions participating in the negotiations with MARBA approved the agreement even though a majority of the members of Local 705 were opposed. The contract was ratified when the votes of the members of the six local unions, including Local 705, were tallied. On July 8, representatives of Local 705 informed KICEA that its members would not agree to any concessions other than those embodied in the MARBA agreement. They further warned KICEA that failure to adopt the terms of the MARBA agreement might very well result in a strike. On July 11, the Azzarelli Construction Company, a Kankakee, Illinois contractor, not a member of KICEA, entered into a collective bargaining agreement negotiated separately with Local 705. This agreement was identical to the MARBA agreement except for a provision relating to pay for employees who were requested to and agreed to work during their lunchbreaks. Local 705 and the Azzarelli Construction Company agreed that the company could give straight time pay to workers working on their lunch breaks rather than pay at the time and a half rate.

On July 15, 1983, Local 705 representatives informed KICEA that its members had rejected KICEA's settlement proposal of July 8. The representatives of Local 705, in explaining their position, stated that they were authorized to offer and accept the same contract Local 705 had negotiated with the Azzarelli Construction Company. Local 705 suggested to KICEA that it not push for additional concessions. KICEA, wishing to avoid a strike, agreed to accept the same terms as those offered to the Azzarelli Company and did not push for further wage concessions, believing that Local 705 was attempting to coerce it into an agreement by threatening a work stoppage.

Despite the fact that KICEA agreed to the contract, it did so only to stave off a strike and decided to file unfair labor practice charges with the NLRB stating that Local 705 had violated sections 8(b)(3) and 8(b)(1)(B) of the National Labor Relations Act, 29 U.S.C. Secs. 158(b)(3), 158(b)(1)(B). KICEA alleged that Local 705 refused to bargain in good faith with KICEA and coerced KICEA in the selection of its collective bargaining representatives. The General Counsel of the NLRB, after reviewing the charges, issued a complaint. A hearing was held before an administrative law judge ("ALJ"), who found that Local 705 had not bargained in good faith and had thus violated section 8(b)(3) of the NLRA but that Local 705 had not coerced KICEA in the selection of its collective bargaining representative in violation of section 8(b)(1)(B) of the Act.

KICEA filed exceptions to the Administrative Law Judge's decision with the National Labor Relations Board, while Local 705 filed cross-exceptions to the ruling. The General Counsel filed a brief in support of the ALJ's decision. In its decision and order, the NLRB held that Local 705 did not violate the provisions of the National Labor Relations Act, 29 U.S.C. Sec. 158(b)(1)(B), Sec. 158(b)(3) and dismissed the complaint against Local 705. KICEA subsequently petitioned this court to review the order of the NLRB dismissing the complaint against Local 705.

II

Initially, we note that an examination of relevant case law demonstrates that our review of NLRB decisions is limited with few exceptions. See, e.g., International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, Local No. 1712 v. NLRB, 732 F.2d 573, 577 (7th Cir.1984). "We accept the Board's factual findings if they are supported by substantial evidence on the record as a whole." Id. See also Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951); NLRB v. Harrison Steel Castings Co., 728 F.2d 831, 835 (7th Cir.1984). Further, we must "recognize the Board's special function of applying the general provisions of the [National Labor Relations] Act to the complexities of industrial life." NLRB v. Erie Resistor Corp., 373 U.S. 221, 236, 83 S.Ct. 1139, 1149, 10 L.Ed.2d 308 (1963). "If facts are open to conflicting inferences, we are not at liberty to draw an inference different from the one drawn by the Board, even though it may seem more plausible and reasonable to us." NLRB v. Millmen, Local 550, 367 F.2d 953, 956 (9th Cir.1966) (quoted in Queen Mary Restaurants Corp. v. NLRB, 560 F.2d 403, 407 (9th Cir.1977)). Accordingly, "we should defer to reasonable Board conclusions." International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, Local No. 1712 v. NLRB, 732 F.2d 573, 577 (7th Cir.1984). In proceedings before the NLRB, "[t]he General Counsel has the burden of proving an unfair labor practice allegation by a preponderance of the evidence, and if he fails to meet this burden the Board is required by Sec. 10(c) [of the National Labor Relations Act] to dismiss the allegation." Allbritton Communications Company v. NLRB, 766 F.2d 812, 817 (3d Cir.1984) (citation omitted). See also NLRB v. Transportation Management Corp., 462 U.S. 393, 401, 103 S.Ct. 2469, 2474, 76 L.Ed.2d 667 (1983). This court, has ruled that "[t]he Board's determination that the General Counsel has failed to meet his burden must be upheld unless the determination has no rational basis in the record." Allbritton, 766 F.2d at 817. See also Ladies Garment Workers v. NLRB, 463 F.2d 907, 919 (D.C.Cir.1972).

KICEA initially argues that Local 705 violated section 8(b)(3) of the National Labor Relations Act, 29 U.S.C. Sec. 158(b)(3) maintaining that Local 705 refused to bargain with KICEA in good faith and exhibited a definite intention not to budge from its position that KICEA accept the provisions of the MARBA contract as offered. The NLRB disagreed with KICEA's position that Local 705 had failed to bargain in good faith and held that Local 705 did not violate section 8(b)(3) as the Union's behavior, "on its face, suggest[ed] an 'open,' 'accessible' position." Section 8(b)(3) of the National Labor Relations Act, 29 U.S.C. Sec. 158(b)(3) states:

"(b) It shall be an unfair labor practice for a labor organization or its agents--

(3) to refuse to bargain collectively with an employer, provided it is the representative of his employees subject to the provisions of section 159(a) of this title."

Id. Section 8(d), 29 U.S.C. Sec. 158(d), of the Act defines "collective bargaining" stating:

"For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at...