Midwest Stock Exchange, Inc. v. N.L.R.B.
| Decision Date | 02 May 1980 |
| Docket Number | No. 79-1501,79-1501 |
| Citation | 620 F.2d 629 |
| Parties | 104 L.R.R.M. (BNA) 2243, 55 A.L.R.Fed. 556, 88 Lab.Cas. P 12,064 MIDWEST STOCK EXCHANGE, Incorporated; Midwest Clearing Corporation; Midwest Securities Trust Company; and Midwest Stock Exchange Service Corporation, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Lawrence D. Ehrlich, Chicago, Ill., for petitioners.
Allison W. Brown, Jr., NLRB, Washington, D. C., for respondent.
Before PELL, Circuit Judge, PECK, Senior Circuit Judge, * and WOOD, Circuit Judge.
This case is before the Court on a petition by Midwest Stock Exchange, Inc., Midwest Clearing Corporation, Midwest Securities Trust Company, and Midwest Stock Exchange Service Corporation (the Exchange) to review, and a cross-application of the National Labor Relations Board (the Board) to enforce an order issued by the Board against the petitioners. The order directs the Exchange to bargain collectively with Local 28 of the Office and Professional Employees International Union (the Union). It rests on the Board's decision that the Exchange's refusal to bargain with the Union constituted an unfair labor practice in violation of sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1), (5).
The Board's order is entitled to enforcement unless the Union was improperly certified by the Board as the collective bargaining representative of the Exchange's employees. Celanese Corp. of America v. N. L. R. B., 291 F.2d 224 (7th Cir. 1961), Monmouth Medical Center v. N. L. R. B., 604 F.2d 820 (3rd Cir. 1979). We hold that the Board's certification of the Union in this case is inconsistent with its declared policy as established by its previous decisions, and we deny enforcement.
On September 12, 1977, the Union filed a representation petition with the Board seeking certification as the bargaining representative of all full and part-time office and clerical workers of the Exchange. An election was held on January 25, 1978, and the Union won the election by a vote of 182 to 149; 28 challenged ballots were resolved by stipulation of the parties.
The Exchange timely filed objections to conduct affecting the results of the election, alleging among other things, that (1) the Union interfered with the election through the electioneering activity of its authorized "election observer," Jonathan James, at and away from the polling area, and (2) the Board's failure to control James's activities in the polling area constituted misconduct warranting a new election. Subsequently, a hearing was held to resolve these two issues.
The hearing officer made findings of fact based on the testimony of several witnesses, including Exchange observer Sonja Griffin, Board agents assigned to the election, employees who voted in the election, and Jonathan James, the Union observer. With few exceptions, petitioners do not here dispute the factual findings of the hearing officer; what they do contest are the conclusions drawn from the facts as established. Because our disposition of this case is based solely on the facts as found, the facts appearing hereinafter are extracted exclusively from the Report of the hearing officer, as adopted by the Board.
The hearing officer found that James engaged in conversations with several voters during the course of the election. On one occasion, three voters greeted James, who was seated at the time in the corridor outside the voting room, upon entering the voting area. After a brief exchange, the three men joined the line of employees waiting to vote. When they emerged from the voting room, they dallied in the corridor, and James approached and spoke with them for about one minute before a Board agent interrupted and ended the conversation.
Shortly thereafter, a noisy group of seven or eight employees got in line to vote. James "whispered" to a female in the group. More than a few words were spoken, but the conversation apparently lasted less than a minute. There was no evidence as to the content of the conversation. The voting line consisted of from ten to fifteen voters during both conversations cited above.
In another incident, a young man joined the voting line, greeted James, and then began talking to him about work, though there was no testimony as to any specific comments made. The conversation then turned to "friendly banter." The entire incident lasted from three to five minutes and took place in the presence of fifteen voters. Again the conversation ended when a Board agent intruded and asked James to "cut his conversations short."
The lengthiest conversation occurred early in the voting process. Mrs. Jerri Thomas, accompanied by her four-year-old daughter, was standing in the voting line, which consisted of from five to twenty persons. James was seated in the corridor, opposite the voting line and next to Sonja Griffin, the employer's observer. As the hearing officer found:
Jerri Thomas greeted James with "what's happening?" He replied, "Nothing." Thomas thereafter asked him what he was doing there, and he explained that he was an observer. He then asked her what she had done the previous night, and inquired why she had her little girl with her. . . . Thomas replied that she would be taking her child home and probably returning to work later. Thomas then asked James whether he would watch the girl while she went in to vote. James said "Yes," and Thomas commented that she would be right back. Griffin estimated that the entire conversation lasted 5 minutes. During this time, Thomas also conversed with other voters, and James was greeted by an unidentified voter.
The babysitting of Thomas' daughter is another incident of which petitioners complain. After James agreed to watch Thomas' daughter, the girl crossed the hallway and sat on James's lap, where she remained until her mother returned from the voting room. The time that elapsed during this incident was estimated by one witness to be four minutes and by another to have been fifteen to twenty minutes, though the hearing officer made no specific finding as to the length of the episode. While on James's lap, the girl chatted with him and the two played with a toy bank containing a few pennies.
The final specific instance of conduct that petitioners allege invalidated the election occurred away from the polling area, but, arguably, on the "line of march" to the polling place. Having earlier asked a Board Agent's permission to leave for lunch, James left the polling area about two hours after the voting had commenced. James traveled by elevator from the 12th floor, where the election was being held, to the lobby and continued to the basement by way of the stairs. James proceeded to a locker room in the basement where he took off his observer's badge and put it in his pocket. The hearing officer found that James engaged in a three-minute conversation with three employees in the lobby. The content of that conversation was not disclosed.
Board agent Hoffman, one of the agents responsible for the conduct of the election, estimated that he admonished James to refrain from conversing with employees waiting to vote on no less than six occasions, and that, as the hearing examiner found, several other incidents escaped detection.
After applying what she deemed to be the relevant principles of law to the facts as found, the hearing officer recommended that petitioners' objections be overruled on the grounds that the conversations of the Union observer with employees were merely brief, innocuous exchanges and did not involve the appearance of electioneering, and the observer's performance of child care services was only a courtesy performed in response to a request. She further recommended that the Union be certified to represent petitioners' employees. The exchange filed Exceptions to the Hearing Officer's Report, but a three-member panel of the Board unanimously affirmed the Report, without opinion, and certified the Union as the exclusive bargaining representative of the Exchange's clerical and office employees.
The Exchange refused to bargain with the Union, and an unfair labor practice hearing was commenced. The Exchange defended its refusal to bargain on the ground that the Board's certification was invalid and that the Exchange, therefore, was under no legal obligation to bargain with the Union. The Board rejected this argument, granted the Regional Director's Motion for Summary Judgment against the Exchange, and issued the order to bargain which is the subject of the petition presently before this Court.
The first question of law to be addressed is the scope of judicial review of Board orders respecting the validity of representation elections. The Board asserts that the court must limit its inquiry to whether the Board's determination falls within its "wide degree of discretion," and petitioners must show that the Board clearly abused its discretion in overruling petitioner's objections.
This Court has explained clearly the balance between the Board's discretion to establish rules governing election procedures and the Court's obligation to review the Board's application of those rules. In Celanese Corp. of America v. N. L. R. B., 291 F.2d 224, 225 (7th Cir. 1961), this Court held that the Board's "wide discretion" lies in the initial promulgation of rules and regulations establishing the procedures and safeguards for conducting representation elections. See also N. L. R. B. v. A. J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 91 L.Ed. 322 (1946). We went on to say, however, that the courts of appeals bear the responsibility of reviewing the Board's specific application of its rules. 291 F.2d at 225. "Judicial review in these cases is not concerned with the wisdom of the Board's policy but must determine whether the...
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