Multi-Ad Services v. Nat'l Labor Relations

• Decision Date: 21 June 2001
• Docket Number: Nos. 00-3595 and 00-3861,MULTI-AD,s. 00-3595 and 00-3861
• Citation: 255 F.3d 363
• Parties: (7th Cir. 2001) SERVICES, INCORPORATED, Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner
• Court: U.S. Court of Appeals — Seventh Circuit

Page 363

255 F.3d 363 (7th Cir. 2001)

MULTI-AD SERVICES, INCORPORATED, Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner.

Nos. 00-3595 and 00-3861

In the United States Court of Appeals For the Seventh Circuit

ARGUED APRIL 5, 2001

DECIDED June 21, 2001

Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before BAUER, RIPPLE and EVANS, Circuit Judges.

RIPPLE, Circuit Judge.

This petition asks us to review whether Multi-Ad Services, Incorporated ("Multi-Ad") violated the National Labor Relations Act, 29 U.S.C. sec. 151 et seq., ("Act") by interfering with its employees' efforts to form a union. The National Labor Relations Board ("Board") concluded that Multi-Ad violated sec. 8(a)(1) of the Act, 29 U.S.C. sec. 158(a)(1), by (1) coercively interrogating employee Ted Steele about his interest in forming a union; (2) impliedly promising to help Mr. Steele improve his employment situation without the need for union representation; and (3) threatening to close one of its departments if that department's employees unionized. The Board also concluded that Multi-Ad violated sec.sec. 8(a)(1) and (3) of the Act, 29 U.S.C. sec.sec. 158(a)(1) and (3), by discharging Mr. Steele because it believed that he might contact a union to organize employees. Multi-Ad now petitions for review of the Board's order; the Board has filed a cross- application for enforcement of its order. For the reasons set forth in this opinion, we deny the petition for review and grant enforcement of the Board's order.

I BACKGROUND

A. Facts

Multi-Ad employs 450 workers at its full-service advertising art production facility in Peoria, Illinois. Multi-Ad hired Mr. Steele in 1989 to work in the bindery department. Fifteen employees work in the department, which manufactures looseleaf three-ring binders. The bindery department is a small operation, accounting for a limited percentage of the company's sales and profits. Mr. Steele's performance evaluations were above average throughout his tenure at the company. Multi-Ad became an employee stock ownership company in 1986. Multi-Ad holds quarterly meetings in which management discusses the company's financial performance and work-related issues. At these meetings, employees often air their concerns and ask management questions re garding the direction of the company. Typically, these meetings break down into smaller, departmental meetings. Management encourages, but does not require, attendance at these quarterly meetings.

On July 29, 1996, Multi-Ad held a quarterly meeting for employees of the bindery, press, and finishing departments. After discussing the company's financial performance, plant production manager Jerry Ireland announced the company's plan to implement a new drug-testing policy. Following this announcement, Mr. Steele spoke up and openly criticized the policy, contending in a loud and persistent manner that such testing violated employees' right to privacy. Other employees also voiced their displeasure with the policy. Mr. Steele and Larry Clore, Multi-Ad's president, then began to argue about the policy's legality. At the end of this exchange, Mr. Steele requested a copy of Multi-Ad's laws and bylaws. Clore told Mr. Steele that he could have these materials after the meeting.

Later that day, the quarterly meeting split into separate departmental meetings. The bindery department meeting commenced around 3:00 p.m., the normal quitting time for day-shift employees. At this meeting, Clore gave Mr. Steele a summary plan description of Multi-Ad's corporate structure. After Mr. Steele pointed out that he wanted the complete bylaws and not a summary, Clore responded, "[H]ave your lawyer get them." Tr. at 33. Clore then told Mr. Steele that if he did not like the company's drug policy, "[W]hy don't you think about leaving the company?" Id. at 154. Mr. Steele responded that he would not give Clore the pleasure of quitting. After Clore departed, Ireland tried to continue with the meeting, but Mr. Steele announced that he was leaving because "he was on his own time now." Id. at 155. Mr. Steele testified that Ireland said, "[O]kay." Id. at 33. Ireland, however, testified that Mr. Steele's remark had shocked him and that he had said nothing in response. Ireland also testified that he had apologized to the group for Mr. Steele's behavior. Mr. Steele, however, was not ordered to remain for the rest of the meeting, which ended shortly after his exit.

Two days later, Mr. Steele and Ireland met at Mr. Steele's request. Mr. Steele apologized for his conduct at the depart ment meeting and then told Ireland that hourly shop workers were dissatisfied with company policies. Mr. Steele told Ireland that "management needed to just sit down with the hourly employees and work some things out." Id. at 37-38. Ireland replied, "[T]hat could not be done." Id. at 38. Mr. Steele then told Ireland that, if they could not sit down and discuss these problems, he would organize a union. Ireland asked Mr. Steele to wait until Ireland returned from his vacation to discuss the issue further. Mr. Steele agreed and made no effort to contact a union while Ireland was away.

On August 16, 1996, Mr. Steele met with Ireland and bindery department manager Marty Heathcoat in Heathcoat's office. During this meeting, the two managers asked Mr. Steele why he would want to bring a union into the company. Mr Steele told them that it would be nice to have seniority rights, better working conditions, and raises when possible. Ireland then asked what Mr. Steele could do to improve Mr. Steele's own situation at the company and pointed out that Multi-Ad posted job openings. After Mr. Steele expressed interest in a maintenance position, Ireland told him that he would set up an interview, even though the company did not have an opening for a maintenance position. At the end of the meeting, Ireland asked Mr. Steele "what it would take to satisfy him." Id. at 39. Mr. Steele replied that it would satisfy him if management "would sit down with the hourly employees and work something out." Id. at 39-40. After Ireland responded that he could not do that, Mr. Steele informed the two managers that he was leaving the meeting and was going to attempt to organize a union. Ireland asked Mr. Steele to come back and talk some more, but Mr. Steele responded that there was nothing left to talk about. Mr. Steele left at 3:30 p.m., 30 minutes after his shift had ended. No one told Mr. Steele to stay nor was he reprimanded for having left the meeting. The next day, Mr. Steele interviewed for a maintenance position, but the interview revealed that he lacked the necessary qualifications. In any event, Mr. Steele said that he did not want the job.

Mr. Steele twice met with union officials in late August. During this time, employees began to talk about Mr. Steele's efforts at organizing a union. At a meeting of bindery department employees in late August, Heathcoat addressed rumors about a union and asked employees why they wanted a union. In response, Mr. Steele stated that everyone knew that Heathcoat was referring to Mr. Steele's desire to look into unionization. Ted DeRossett, Mr. Steele's supervisor, then warned that the bindery department would be the "first to go" if the company unionized. Id. at 80. Mr. Steele immediately challenged the legality of closing the bindery department in such a fashion. After Mr. Steele and DeRossett began to argue heatedly, Heathcoat ended the meeting.

At another bindery department meeting in late August, management informed employees that they would be working mandatory 10-hour shifts. Mr. Steele protested that it was unfair to require employees to work overtime when in the past they had been able to decline overtime. Mr. Steele also stated that it was decisions like this that caused him to explore bringing in a union.

Shortly after the meeting, Multi-Ad announced that it was adding a second shift in the bindery department and that Mr. Steele would be the lead man. On August 29, 1996, Heathcoat and DeRossett asked Mr. Steele if he would work the second shift with a positive attitude. The two assured Mr. Steele that he could still take his scheduled vacation days from August 30 through September 3. Mr. Steele told them that he would go to the second shift, do the job, and represent the company as was expected of him.

The next day, while Mr. Steele was on vacation, Multi-Ad received a letter from Mr. Steele requesting copies of the company's policies and bylaws. When Mr. Steele returned from his vacation on September 4, Heathcoat and DeRossett were waiting for him at the plant's garage door. The two asked Mr. Steele if he still wanted to see the materials that he had requested in the letter. Mr. Steele said yes, and the two told him that he could pick up the materials in the office of Bruce Taylor, Multi-Ad's vice president of finance. Mr. Steele punched the time clock and, as he started to walk toward Taylor's office, noticed DeRossett and Heathcoat accompanying him. Mr. Steele told them that he did not need them to pick up the papers. The two replied that they were tagging along in case he had any questions. Mr. Steele told them that he could not possibly have any questions because he had not yet read the materials. Nevertheless, both managers followed Mr. Steele into Taylor's office. Ireland entered the office shortly thereafter.

Mr. Steele first asked Taylor for the documents. Taylor replied that Mr. Steele already had been given the summary statement at the quarterly meeting. Mr. Steele responded that he was not asking for a summary but for complete documents. After again requesting the documents and receiving no response, Mr. Steele announced that he would no longer participate in the meeting and walked out. Heathcoat ordered him to remain or be...