N.L.R.B. v. Overnite Transp. Co.
| Decision Date | 07 August 1991 |
| Docket Number | I,AFL-CI,No. 90-2941,90-2941 |
| Citation | 938 F.2d 815 |
| Parties | 138 L.R.R.M. (BNA) 2018, 60 USLW 2176, 119 Lab.Cas. P 10,872 NATIONAL LABOR RELATIONS BOARD, Petitioner, and Local 705, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,ntervening Petitioner, v. OVERNITE TRANSPORTATION COMPANY, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Charles P. Donnelly, Jr., N.L.R.B., Contempt Litigation Branch, Washington, D.C., Elizabeth Kinney, N.L.R.B., Region 13, Chicago, Ill., Aileen A. Armstrong, William A. Baudler (argued), N.L.R.B., Appellate Court, Enforcement Litigation, Washington, D.C., and John F. Ward and Sheldon M. Charone (argued), Carmell, Charone, Widmer, Mathews & Moss, Chicago, Ill., for petitioners.
John O. Pollard (argued), Blakeney, Alexander & Machen, Charlotte, N.C., for respondent.
Before WOOD, Jr., COFFEY and KANNE, Circuit Judges.
It would be an understatement to say that Overnite Transportation Company was not thrilled with the prospect of unionization. The more difficult question, and the one presented by this petition for enforcement, is whether Overnite went beyond permissible bounds in expressing that lack of enthusiasm. Specifically, did statements during the course of a Union 1 organizational drive "interfere with, restrain or coerce employees" in the exercise of their right to self-organization? See National Labor Relations Act ("Act"), Sec. 8(a)(1), 29 U.S.C. Sec. 158(a)(1). And did Overnite, upon certification of the Union, engage in "surface bargaining"? See id. Sec. 8(a)(5), 29 U.S.C. Sec. 158(a)(5). The National Labor Relations Board answered both questions in the affirmative, and we uphold that decision as supported by substantial evidence.
Overnite is a common carrier of general commodity freight, with terminals located throughout the United States. 2 In the spring of 1982, the Union filed an election petition seeking to represent the local drivers at Overnite's terminal in Bedford Park, Illinois. The Board scheduled an election for June 17, 1982, and the Union began an organizational campaign.
Overnite was opposed to unionization and attempted to convey that message through a variety of media. Chief among those, at least for our purposes, were two meetings in which company officials expressed their concerns to the drivers. The first of these meetings occurred in April 1982, the other on the day before the election, June 16, 1982.
Vice-president Bobby Edwards gave speeches at both of these gatherings. In addressing the audience, Edwards generally used a prepared speech but at times deviated from the text that he had before him. Drivers present at the April meeting testified that Edwards said that he would never sign a contract with the Union and that he would do everything in his "extreme power" to keep the Union out of the Bedford Park terminal. Drivers also told of Edwards's references to specific transportation companies that had closed after becoming unionized and his warning that Overnite would shut down its terminal if the employees voted for the Union.
At the June meeting, the text of Edwards's speech contained the following observations:
If the Union were to get in here, it would necessarily force us--I repeat, force us--to switch completely in our attitude about our employees. We could no longer afford to say, "How much in the way of improvements in wages and benefits can we afford to give our people?" The new attitude necessarily forced upon us would be, "How little can we get by with giving to these employees who are represented by this Union?" ...
....
In all of this, there is a fundamental question which you should carry in your mind--"What is it that you may expect if this Union were to get in here?" The answer--and you should not ignore it or overlook it--the answer is TROUBLE ! That is what this Union has brought elsewhere--strikes, lost work, lost pay, lost jobs, debt and regret--bitterness and misery. Do you see any good reason to risk all of that here?
Edwards also warned:
I think that I am justified in repeating again what we have often said to you before. If this union were voted in at Overnite what could it force us to do anyway? The answer is this--and I emphasize it with all the power at my command--the Union could not force this Company to do anything that it does not consider to be reasonable or practical or in the best interests of you, its employees, in the long run. Of course, the Union can try to bring pressure on the Company by pulling you out on strike. I do not want to sound abrupt in this matter, but I think that it is of the utmost importance that you understand this while there is yet time--Overnite Transportation Company has no intention of yielding to any sort of strike pressure by this Union, either now or at any time hereafter....
....
... I think you should know, however, that if the Union were to get in here and call people out on strike, the Company definitely would hire replacements for the strikers in order to keep this terminal in operation. With unemployment as high as it is, I have no doubt that plenty of people would be glad to come in here and work despite a Teamsters strike. 3
None of Edwards's statements, either in April or June, were mitigated by assurances that strikes were not inevitable or that Overnite would bargain in good faith if the employees selected the Union as their bargaining agent.
Overnite's efforts notwithstanding, a majority of the local drivers voted for Union representation. The first meeting between the Union and Overnite occurred on July 27, 1982, and involved a cursory review of the Union's proposal by Overnite's representatives, one of whom was Edwards. At the next meeting, Overnite raised formal objections to the vast majority of the Union's proposals on the ground that they would create disparities between policy at the Bedford Park terminal and Overnite's other, nonunionized terminals. Those Union proposals that Overnite did accept were in large part identical to the company's existing policies; the only exceptions to this generalization were an alcohol rehabilitation plan and limited arbitration rights. 4
Overnite used a third meeting to showcase a counterproposal, but Union negotiators took exception because it contained few, if any, deviations from Overnite's preunionization policies. The meeting ended with the Union talking openly of a strike and Overnite responding, "You are going to have to do what you are going to have to do, and we will have to do what we are going to do."
The Union subsequently arranged for a fourth meeting and presented a revised proposal that omitted a number of its earlier demands. Overnite was not "persuaded," however. It rejected the revised proposal, once again citing its desire for uniformity.
A fifth meeting involved further concessions by the Union, which was now willing to accept Overnite's counterproposal with only two modifications--a requirement that the company pay overtime and a requirement that the company institute the Union's health and welfare proposal. Overnite rejected even this attempt at compromise, claiming that the Union had not yet "convinced" it to agree to more. The meeting ended without any progress and without any expectation of future meetings.
A sixth, and final, meeting fared no better; it, too, was characterized by the adamant behavior that had stymied earlier negotiations. Overnite was "unwilling to move" in its refusal to accept the Union's proposals because the Union "had not answered the Company's objections." Union officials expressed dismay; they had never seen a company "that [said] no to everything." "We gave our proposal," Overnite retorted, prompting the Union to accuse the company of forcing a strike. "Do what you have to do," came the reply.
Believing that the act would be futile, the Union did not attempt to schedule a seventh meeting. In its place, the Union pursued the unfair labor practice charge that it had filed with the Board on October 4, 1982. A December 1982 complaint charged Overnite with violating section 8(a)(5) of the Act by refusing to bargain in good faith. The complaint did not specifically address Edwards's statements until July 1983, when it was amended to charge independent violations of section 8(a)(1).
The ALJ, after recounting in exhaustive detail the episodes described above, concluded that the section 8(a)(1) charges were timely filed and that Edwards's statements were in violation of that portion of the Act. The ALJ also determined that Overnite had entered into collective bargaining negotiations with no intention of reaching an agreement and that this conduct was in violation of section 8(a)(5). The Board agreed with the result of the ALJ's opinion but at times used a narrower rationale.
Section 8(a)(1) of the Act makes it an unfair labor practice for an employer to "interfere with, restrain or coerce employees" in the exercise of their rights "to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." 29 U.S.C. Secs. 157, 158(a)(1). 5 Section 8(c) of the Act, in acknowledgment of the first amendment, makes it clear that "[t]he expressing of any views, argument, or opinion, or the dissemination thereof, ... shall not constitute or be evidence of an unfair labor practice." 29 U.S.C. Sec. 158(c). This is a limited privilege, however. The Act accords no protection for views, arguments, or opinions that contain a "threat of reprisal or force or promise of benefit." Id.; see NLRB v. Gissel Packing Co., 395 U.S. 575, 616-20, 89 S.Ct. 1918,...
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