L.S.F. Transp., Inc. v. N.L.R.B.

• Decision Date: 11 March 2002
• Docket Number: No. 00-2289.,No. 00-2040.,00-2040.,00-2289.
• Citation: 282 F.3d 972
• Parties: L.S.F. TRANSPORTATION, INC., a/k/a L.S.F. Trucking, Inc., Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.
• Court: U.S. Court of Appeals — Seventh Circuit

282 F.3d 972

L.S.F. TRANSPORTATION, INC., a/k/a L.S.F. Trucking, Inc., Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.

No. 00-2040.

No. 00-2289.

United States Court of Appeals, Seventh Circuit.

Argued November 29, 2001.

Decided March 11, 2002.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Walter J. Liszka (argued), Wessels & Pautsch, Chicago, IL, for petitioner.

Elizabeth Kinney, National Labor Relations Board, Chicago, IL, Bridget O'Connor (argued), National Labor Relations Board Appellate Court, Enforcement Litigation, Washington, D.C., Aileen Armstrong, National Labor Relations Board Office of the General Counsel, Washington, D.C., for respondent.

Before COFFEY, EASTERBROOK, and RIPPLE, Circuit Judges.

COFFEY, Circuit Judge.

This petition asks us to review whether L.S.F. Transportation, Inc. (LSF or company)violated the National Labor Relations Act, 29 U.S.C. § 151 et seq. by unlawfully terminating employees in retaliation for their union activity. The National Labor Relations Board concluded that LSF violated §§ 8(a)(1) and (3) of the Act by engaging in an anti-union campaign of harassment and intimidation and by discharging seven employees because it believed they had taken steps to organize a union to represent LSF employees. LSF now petitions for review of the Board's order, contesting its findings as to four of the discharged employees; the Board has filed a cross-application requesting enforcement of its order. We deny the petition for review and grant enforcement of the Board's order.

I. Factual Background¹

A. The Union Campaign

LSF maintains and operates a trucking operation in Hammond, Indiana, and is owned and operated by the Faure family, with Amy Faure serving as its president. LSF's day-to-day operations are managed by Operations Manager Scott Belt. Other LSF managerial personnel include Craig Crohan, the vice president of operations; Bill Burnson, manager; Jerry Helton, comptroller; and Valerie Day, LSF's dispatcher.

On March 20, 1995, the International Brotherhood of Teamsters, Local 42, AFL-CIO (union) began a campaign to organize LSF's drivers. By the next day, 12 out of 18 LSF drivers had signed petitions authorizing the union to represent them for the purposes of collective bargaining, and on March 22 the union filed a petition requesting a representation election with the NLRB, which was scheduled for April 29, 1995.

LSF was none too thrilled with the possibility of its drivers unionizing and upon learning of the campaign it launched an admittedly unlawful counter-campaign, comprised of both oral and written intimidation coupled with acts of harassment, in an attempt to convince its drivers to reject the union. In the month preceding the election, LSF officials coercively interrogated several employees about their union support and activity. The company interspersed its questions to its employees with threats of plant closure, loss of jobs, discharge and other reprisals. For example, LSF dispatcher, Valerie Day, told employees that President Faure would close down the company if the employees unionized. Operations Manager Belt repeated Day's warning and told one employee that he "did not know how much damage a union could do to the company and that a union at LSF could mean [his] job."

Other reprisals were more tangible. On March 27, 1995, a week after the union campaign had begun, the company revoked its policy of allowing drivers to get cash advances with a company credit card. Two weeks later, the company accompanied the cash order with new, more restrictive, work rules for the drivers. On April 25, Faure issued a letter to employees entitled "What Will Local 142 Bring to the Table," which threatened that wages and benefits would be frozen if the union were selected as their collective-bargaining representative and further advised the employees that they were "gambling with" their wages and benefits.

The most serious of LSF's reprisals, and those at issue in this appeal, were the adverse actions taken by the company against the employees who had chosen to sign the petition. Seven out of twelve of the employees who signed the petition were terminated by LSF either shortly before or shortly after the April 29, 1995, election. Six of the seven terminated employees also received temporary layoffs or suspensions, work reassignments, or disciplinary warnings shortly before their discharge. LSF now concedes that its pre-election anti-union campaign was unlawful. In addition, LSF no longer disputes that it unlawfully terminated three union supporters (Mark Hasse, Michael Dooley, and Ron Holland) in retaliation for their union activities. LSF does argue, however, that the termination or constructive discharge of four other employees (Dennis Hill, Walter Michaels, William Owens, and John Kawa) did not violate the NLRA.

B. Dennis Hill

In March 1994, roughly a year before the drivers commenced their union-organizing activity, Dennis Hill suffered a seizure while making a delivery and was hospitalized for two days. Hill's neurologist authorized him to return to work a few days later, on March 14, 1994. Upon returning to work, Hill was advised by the former operations manager that he was required to submit a medical certification to clear him to drive, pursuant to Department of Transportation (DOT) regulations. Hill scheduled a physical at the Hammond Clinic that revealed him to be in "good general health," and he received a valid medical certification that allowed him to continue driving for a 2-year period. LSF paid some of Hill's medical bills arising from his hospital stay and subsequent physical examination.

On March 20, 1995, Hill made the initial contact with the union on behalf of the drivers, requesting information regarding union representation. Hill later circulated and signed the petition requesting that the union represent the drivers for purposes of collective bargaining and also frequently wore a union button at work. But on March 21, 1995, immediately after Hill began his organization efforts, dispatcher Day questioned Hill about his union activity. Among other things, Day warned Hill that Faure would "close the doors" if she found out they were trying to unionize.

A few days after Hill's conversation with Day, LSF reassigned him from driving primarily long-haul runs to short-haul runs, resulting in a drop in Hill's weekly earnings. Around the same time, LSF also transferred other employee's routes from short-haul runs to long-haul runs. Manager Belt then asked Hill to sign a document acknowledging that LSF had advanced him money to cover his 1994 medical expenses and committing Hill to payroll deductions to reimburse it for the medical expenses in the amount of $200/month. Hill refused to sign the document.

On April 12, 1995, LSF informed Hill that it was required to place him on medical leave and directed him to obtain a second medical certification to continue driving. Belt advised Hill that DOT regulations required that he place Hill on medical leave due to his history of seizures, and Belt produced a letter in support from Dr. Feldman, the director of the Hammond Clinic where Hill had received a physical examination and DOT certification the year before. The letter began "[t]o confirm a discussion you had with Kelly from my office this morning, the two drivers in question with the history of seizures and chest pains should not be driving until released to return to work after complete evaluations." The letter failed to mention Hill by name, much less explain why Belt had contacted the clinic in the first instance when Hill had submitted a two-year medical certification a year earlier.

At the conclusion of his meeting with Belt, Hill asked if he would still have a job after this, and Belt responded in the affirmative. Hill began to arrange for a medical examination during the following week. On April 13, Belt telephoned Hill and informed him that he was "a little confused" about how Hill was going to vote in the upcoming election. Hill responded that he had no comment.

On August 7, 1995, several months after the election and while Hill was still on medical leave, LSF informed Hill to report to work on August 28, 2001, with a current certified DOT license or he would be presumed to have resigned. Hill was unable to secure a medical certification until September 22. After he obtained his certification, Hill chose to work for another employer, rather than return to LSF.

C. Walter Michaels

Unlike Hill, Walter Michaels worked primarily short-haul runs (those within a 120-mile radius of LSF's facility) since he was hired in 1992. Michaels's preference for making short-haul runs was well known throughout LSF. In November 1994, LSF was awarded a contract to deliver beer within a three-state area and management asked Michaels to agree to make some long-haul runs. Michaels agreed, but only after receiving assurances from Belt and Day that he would be reassigned primarily to short-haul runs when additional drivers were hired to make the long-haul runs generated by the November 1994 contract mentioned above. Michaels made sporadic long-haul runs from November 1994 through January 1995 and then returned to short-haul runs.

On March 20, 1995, Michaels signed the petition for the union. The next day, Day asked him how the meeting had gone, and he responded simply "okay." On March 27, Michaels made a short run and after completing it he returned home. Day telephoned him at home to ask if he would take a long run to Detroit, Michigan that evening. Michaels declined, stating that he had already worked a full day and did not believe that DOT regulations permitted him to drive to Detroit because he had just completed a run earlier in the day. A short time later, Day called Michaels again and asked him to reconsider, and Michaels once again declined. Next Belt asked Michaels to take the run, and when Michaels declined...