N.L.R.B. v. WFMT, a Div. of Chicago Educ. Television Ass'n

• Decision Date: 21 June 1993
• Docket Number: No. 91-3731,91-3731
• Parties: 143 L.R.R.M. (BNA) 2707, 125 Lab.Cas. P 10,786 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WFMT, A DIVISION OF CHICAGO EDUCATION TELEVISION ASSOCIATION, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 269

997 F.2d 269

143 L.R.R.M. (BNA) 2707, 125 Lab.Cas. P 10,786

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WFMT, A DIVISION OF CHICAGO EDUCATION TELEVISION ASSOCIATION, Respondent.

No. 91-3731.

United States Court of Appeals Seventh Circuit.

Argued Sept. 22, 1992.

Decided June 21, 1993.

Jill A. Griffin (argued), N.L.R.B., Contempt Litigation Branch, Washington, DC, Elizabeth Kinney, N.L.R.B., Chicago, IL, Aileen A. Armstrong, Collis Suzanne Stocking, Nancy B. Hunt, N.L.R.B., Appellate Court, Enforcement Litigation, Washington, DC, for petitioner.

Gilbert A. Cornfield, Cornfield & Feldman, William L. Becker, Michael Klupchak (argued), Laner, Muchin, Dombrow, Becker, Levin & Tominberg, Chicago, IL, for respondent.

Before COFFEY and MANION, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

COFFEY, Circuit Judge.

On January 16, 1991, the National Labor Relations Board ("NLRB" or "Board") certified the American Federation of Television and Radio Artists Union ("AFTRA" or "union") following its victory in a representation election as the bargaining representative of the employees at WFMT ("Company"), a division of Chicago Education Television Association. The Company refused to bargain with the union, even though AFTRA had been certified. AFTRA filed an unfair labor practice charge with the NLRB, alleging that WFMT had violated § 8(a)(1) and § 8(a)(5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) and (a)(5), in refusing to bargain with and provide bargaining-related information to the union. The Board issued its Decision and Order on August 27, 1991, finding that the Company committed the violations alleged by AFTRA. The National Labor Relations Board petitions the court for the enforcement of its Decision and Order requiring WFMT to bargain with AFTRA. We enforce the Order.

I. FACTS

WFMT employees Lois Baum, Mel Zellman and Robert Crawford met with Attorney Gilbert Cornfield on four occasions from November 1989 to January 1990 to discuss the procedures involved in filing a petition for union certification with the NLRB. Attorney Cornfield explained to the three employees that they were required to file a petition with the NLRB demonstrating that their union had a minimum 30 percent "showing of interest" to be listed on the ballot in an NLRB-run representation election. The Board's Casehandling Manual, § 11022.3(a), states that the showing of interest designates the petitioning union, if elected, as the bargaining agent of the employees in the bargaining unit. On January 12, 1990, Baum, Zellman, and Crawford filed a petition demonstrating 30% support from the WFMT Employees union (known as "WE") as the bargaining representative for all full-time and regular part-time Chicago-based WFMT employees. At the time WE filed the representation petition, it was a loosely structured organization without a constitution, much less bylaws, officers or any financial resources. Subsequent to WE's representation petition, AFTRA made a motion to intervene in WE's "Petition for Representation" requesting that the NLRB allow it to appear on the election ballot. The NLRB granted AFTRA's motion to intervene on February 2, 1990, approving AFTRA's intervention not as a full intervenor, but one reflecting less than a 10% showing of interest. WE and AFTRA agreed to and filed a Stipulation with the NLRB that both unions be named on the ballot.

When AFTRA intervened in the representation election, the WFMT employees who launched WE transferred their support from WE to AFTRA in the March 1, 1990 election. WE did no more campaigning before the union election. AFTRA used its staff, as opposed to a committee of WFMT employees, to conduct its organizing campaign. WFMT employees Crawford, Zellman, Baum, Louis "Studs" Terkel, and Kay Richards together contributed between $3000 and $4000 into an Initiation Fee Fund to pay the AFTRA Initiation Fee for those employees financially unable to afford the $300 fee. AFTRA representative Paul Wagner, who supervised the AFTRA union organizing drive at WFMT, testified that AFTRA neither authorized nor was aware of the Initiation Fee Fund.

On March 1, 1990, the representation election was held between 1:00 p.m. and 3:00 p.m. Nineteen votes were cast for AFTRA, no votes were cast for WE, and eighteen votes were cast against union representation without any ballots being challenged in the one-vote AFTRA victory. During the voting period WFMT employee Carol Martinez served as WFMT's election observer. AFTRA had three election observers: Jackie Stevenson from 1:00 p.m. to approximately 2:00 p.m.; Studs Terkel from 2:00 p.m. until approximately 2:30 p.m.; and Lois Baum replaced Terkel from approximately 2:30 p.m. to 3:00 p.m. Baum took Terkel's place after informing him that he had an urgent telephone message from his wife. Terkel claims that he immediately left the polling place to return his wife's call. The NLRB found that when Baum replaced Terkel as an election observer, Terkel transferred his official election "Observer" button to Baum and she put on the button.

Martinez, WFMT's election observer, testified that during a time when no eligible voters were present in the polling place, she observed Terkel reviewing the official list of eligible voters and that he commented that several employees had not yet voted. At approximately 2:20 p.m., employee Lynn Minich, who had previously voted, arrived at the polling area to speak with Terkel. As Minich was leaving, Terkel said to her, "Kurt Tyler hasn't voted. Go get Kurt to come and vote." The Board agent, John Peck, who obviously overheard the comment while serving as the NLRB's election observer, instructed Minich not to tell anyone to vote and informed Terkel that he could not tell Minich to get a WFMT employee to vote.

When Baum replaced Terkel as the AFTRA observer, the Board agent did not give her "election Observer instructions" detailing how an observer is required to conduct him or herself. ¹ While Baum served as the AFTRA election observer, she greeted some of the voters (seven) by name as they entered the polling area to vote. After Terkel left the polling area, allegedly to return his wife's telephone call, employee Ann Lee testified that she observed Terkel walking down the corridor at approximately 2:55 p.m. and heard him state: "Where is Mary Gaffney? She hasn't voted yet and there is only five minutes. Where the hell is Mary Gaffney?" (All this occurred after Terkel had reviewed the list of eligible voters and noted those who had failed to cast their ballot.) Terkel attempted to explain his statements regarding Gaffney as being related to a 4:00 p.m. radio interview he thought he had with the President of the Chicago League of Women Voters. Terkel testified that he stated something like, "Where is Mary Gaffney," in the WFMT corridors to find Gaffney to act as his engineer for the radio interview. Lee testified that Terkel had a habit of "talk[ing] to himself when he is walking around the station" and often talks out loud in the WFMT hallways when he needs to find a WFMT employee. Gaffney voted between 2:45 p.m. and 2:50 p.m. She stated that she did not have any contact with Terkel during the voting period prior to voting.

WFMT employee Barry Hochman stated in the Board hearing that at approximately 2:50 p.m. on election day he heard Terkel say outside Production Room 2, "You have got to go vote, you haven't voted yet." Hochman testified that he did not actually see Terkel making this statement to anyone and thus does not know to whom it was addressed, but shortly thereafter Terkel appeared in the doorway of Production Room 2 and berated him (Hochman) for his anti-union views. Early that day, Hochman had written and distributed a memo throughout the station, warning employees about the possibility of union-called strikes if a union was elected. (Terkel had circulated three pro-union memos to his fellow employees.) Hochman testified that Terkel sarcastically told him in the doorway of Production Room 2 that the anti-union memo was "brilliant" and devious, in that it played on people's worst fears about union-called strikes.

II. BOARD DECISION AND ORDER

In its "Objections to Conduct Affecting the Election" the Company claimed that numerous violations occurred during the representation election and requested that the Board set aside the election in favor of AFTRA. The Board ² found (1) that Terkel did not keep a list of eligible voters at the polling place but merely reviewed the official NLRB list of eligible voters; and (2) that Terkel did not engage in unlawful electioneering while in the WFMT corridors when he stated to Minich inside the polling area to get Tyler to vote, called out for Gaffney, and made statements to Hochman. Concerning Hochman's claim that he overheard Terkel allegedly telling an unidentified WFMT employee to vote, the Board found that Hochman's testimony was obscure and speculative in light of Lee's testimony that Terkel often speaks to himself when walking the WFMT hallways and the fact "there is no evidence that Terkel ever told anyone to vote." The Board also found that the Initiation Fee Fund was permissible because (1) the employees who created and managed the Fund were not acting as agents of the AFTRA union; and (2) AFTRA did not authorize or have knowledge that the Fund existed. The Board also found that there was "no evidence that the failure of the Board Agent to give Baum observer instruction caused her to engage in any improper objectionable conduct." The Board concluded that the Board agent did not undermine the parties' confidence in the election or raise questions concerning the Board's neutrality. Additionally, the Board found that since the WFMT Employees union ("WE") did not withdraw its petition demonstrating a 30% showing of interest from the WFMT employees, AFTRA was permitted to "intervene" in the March 1, 1990 election with less than a 30% showing of interest....