N.L.R.B. v. O'Daniel Trucking Co., 93-2441

• Decision Date: 02 May 1994
• Docket Number: No. 93-2441,93-2441
• Citation: 23 F.3d 1144
• Parties: 146 L.R.R.M. (BNA) 2201, 128 Lab.Cas. P 11,100 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. O'DANIEL TRUCKING COMPANY, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1144

23 F.3d 1144

146 L.R.R.M. (BNA) 2201, 128 Lab.Cas. P 11,100

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. O'DANIEL TRUCKING COMPANY, Respondent.

No. 93-2441.

United States Court of Appeals Seventh Circuit.

Argued Jan. 10, 1994.

Decided May 2, 1994.

Joan E. Hoyte, N.L.R.B., Contempt Litigation Branch, Aileen A. Armstrong, Paul J. Speilberg (argued), N.L.R.B., Appellate Court, Enforcement Litigation, Washington, DC, Joseph H. Solien, N.L.R.B., Region 14, St. Louis, MO, for N.L.R.B.

Joseph A. Yocum, Yocum & Yocum, Evansville, IN (argued), for respondent.

Before POSNER, Chief Judge, EASTERBROOK and KANNE, Circuit Judges.

KANNE, Circuit Judge.

O'Daniel Trucking Company ("O'Daniel") operates a construction and material supply business, headquartered in Carmi, Illinois. In addition to its Carmi facility, the company owns a yard operation in East Carmi and a sand and gravel dredge facility in Maunie, Illinois. O'Daniel produces, sells, and transports asphalt and ready-mix concrete and is engaged in the construction and repair of highways, driveways, and parking lots. It also hauls and disposes of waste from a local coal mine.

During its peak period in the summer, O'Daniel employs between fifty and sixty workers. Some of these workers are permanent employees and work for the company year-round. Others are hired temporarily to work on specific projects that may last from a few days to as much as one year. If the company needs temporary workers to assist with its public projects, (construction and repair of town and city streets), and to a much lesser extent some private construction projects, it obtains them from various union "hiring halls." In the past, O'Daniel has frequently hired temporary laborers from the Southern Illinois Laborer's District Council, Laborers International Union of North America, AFL-CIO's ("Union") hiring hall.

In 1973, O'Daniel entered into a collective-bargaining agreement with the Congress of Independent Unions ("CIU"). Under the terms of that agreement, O'Daniel agreed "to recognize the [CIU] as the sole and exclusive collective bargaining agency for all their employees," excluding heavy equipment operators. The agreement also states that new employees are "required to join the [CIU] after 31 calendar days from the date on which they are first employed." If an employee fails to join the CIU within 31 days or is otherwise not a member of the CIU in good standing, the agreement requires O'Daniel to discharge that employee within three working days of receiving notice from the CIU. The agreement specifically allows O'Daniel to hire temporary workers from other labor unions whenever it becomes necessary.

In 1974, O'Daniel and the Union entered into a pre-hire collective bargaining agreement, pursuant to section 8(f) of the National Labor Relations Act ("ACT"), 29 U.S.C. Sec. 158(f), ¹ whereby the Union agreed to provide laborers from its hiring hall to work on O'Daniel's public projects. Under the terms of that agreement, O'Daniel agreed to make fringe benefit payments to the Union's health and welfare trust fund. The parties' relationship continued uninterrupted until December 1992 when O'Daniel notified the Union that it would not enter into a new agreement.

On January 31, 1992, the Union filed a representation petition with the National Labor Relations Board ("Board"), pursuant to section 9(c) of the ACT, 29 U.S.C. Sec. 159(c), ² seeking certification as the exclusive collective-bargaining representative of all laborers who work on O'Daniel's public highway projects. O'Daniel opposed the Union's petition, contending that its collective-bargaining agreement with the CIU already covered its highway project laborers and thus, there was a contract-bar to the Union's petition.

A hearing was held before Board hearing officer Donald F. Jueneman on March 27, 1992. During the hearing, both the Union and O'Daniel stipulated that "should the Regional Director determine that there is no contract bar and that an election should be held, that the appropriate unit would include all construction laborers employed ... at [O'Daniel's] heavy and highway construction job sites. Excluding all drivers, operators, office and clerical and professional employees, guards and supervisors, as defined in the Act."

On March 10, 1992, the Board's Regional Director issued a Decision and Direction of Election. The Regional Director found that there was no contract-bar to the Union's petition because there was no evidence that a majority of the employees in the proposed bargaining unit had selected or designated the CIU as their exclusive bargaining unit. ³ Accordingly, the Regional Director ratified the stipulated bargaining unit and directed that an election be held to determine whether the unit employees wanted the Union to be their collective-bargaining representative.

O'Daniel asked the Board to review the Regional Director's Decision and Direction of Election. The Board denied O'Daniel's request, finding that it raised no substantial issue warranting review.

On April 8, 1992, the Board conducted a secret-ballot election in the appropriate unit. Of seven eligible voters, six voted in favor, and one against, having the Union as their exclusive collective-bargaining representative. There were four challenged ballots; however, even if all four ballots were invalidated, the outcome of the election would not have been affected. O'Daniel filed a timely objection with the Board, arguing that the election should be set aside because Union officials allegedly "advised the employees that if they did not vote for [the Union] they faced the loss of their pension benefits and, also, possible loss of their level of employment which also, in turn, would reduce their benefits." O'Daniel supported its objection with the affidavits of its Vice President John O'Daniel and its Secretary James Edwards. The O'Daniel officials state that they were told by six unit employees that union officials had told the employees that they would lose work, pension and other benefits if they voted against the Union.

The Regional Director conducted an investigation into O'Daniel's objections. After reviewing the above-mentioned affidavits, the testimony of the Union's business agent John R. Taylor, and the signed statements of the six unit employees, the Regional Director concluded that, even if the employees made the statements in question, they were insufficient to warrant setting aside the election. Accordingly, the Regional Director overruled O'Daniel's objections and certified the Union as the unit's exclusive bargaining representative.

O'Daniel filed timely exceptions to the Regional Director's decision, contending that he had erred in not setting aside the election based on the alleged coercive conduct by the Union's officials. In the alternative, O'Daniel argued that it was entitled to a hearing on whether the election should be set aside. The Board denied O'Daniel's request for review, finding that its exceptions raised no substantial issue warranting review.

On July 23, 1992, the Union filed an unfair labor practice charge with the Board alleging that O'Daniel had refused to bargain with the Union. On August 12, the Regional Director issued a complaint charging the company with refusal to bargain in violation of sections 8(a)(5) and (1) of the ACT, 29 U.S.C. Secs. 158(a)(5) and 158(a)(1). In its answer to the Regional Director's complaint, O'Daniel admitted that it had refused to bargain with the Union. However, O'Daniel argued that it had no duty to bargain because the Board had erred in certifying the Union as the unit's exclusive bargaining representative. O'Daniel again attacked the validity of the election and the Board's determination of the appropriate bargaining unit.

The General Counsel moved to transfer this case to the Board and for summary judgment, alleging that there were no disputed issues of fact warranting a hearing and that the issues raised in O'Daniel's answer were or could have been litigated in the representation proceeding. On October 23, the Board entered an order transferring this case to itself and issued a Notice to Show Cause why the General Counsel's summary judgment motion should not be granted.

On December 14, 1992, the Board issued its Decision and Order, granting the General Counsel's motion for summary judgment. The Board found that all of the issues raised by O'Daniel "were or could have been litigated in the prior representation proceeding." It also found that O'Daniel had not alleged "any special circumstances that would require the Board to reexamine the decision made in the representation proceeding." Thus, the Board held that O'Daniel had violated sections 8(a)(5) and (1) of the Act by refusing to bargain. The Board ordered O'Daniel to cease and desist from its refusal to bargain with the Union, and affirmatively ordered O'Daniel to "to bargain on request with the Union, and, if an understanding is reached, to embody that understanding in a signed agreement."

On June 16, 1993, the Board filed an application for enforcement with this court, and O'Daniel made a timely answer.

Standard of Review

We will enforce an order of the Board as long as its "factual findings are supported by substantial evidence in the record as a whole and its legal conclusions have a reasonable basis in the law." NLRB v. Shelby Memorial Hosp. Ass'n, 1 F.3d 550, 554 (7th Cir.1993) (quoting NLRB v. Augusta Bakery Corp., 957 F.2d 1467, 1471 (7th Cir.1992)). Substantial evidence is " 'more than a mere scintilla' "--it is enough " 'relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Roadmaster Corp. v. NLRB, 874 F.2d 448, 452 (7th Cir.1989) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951)). "[W]e must uphold the Board's legal conclusions unless they are irrational or inconsistent with the National Labor Relations Act...