N.L.R.B. v. Chicago Tribune Co., AFL-CI

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore CUMMINGS, CUDAHY and RIPPLE; RIPPLE
Citation943 F.2d 791
Docket NumberAFL-CI,I,Nos. 90-3182 and 90-3499
Decision Date24 September 1991
Parties138 L.R.R.M. (BNA) 2510, 120 Lab.Cas. P 10,937 NATIONAL LABOR RELATIONS BOARD, Petitioner-Cross-Respondent, International Brotherhood of Electrical Workers, Local 134,ntervening Petitioner, v. CHICAGO TRIBUNE COMPANY, Respondent-Cross-Petitioner.

Page 791

943 F.2d 791
138 L.R.R.M. (BNA) 2510, 120 Lab.Cas. P 10,937
NATIONAL LABOR RELATIONS BOARD, Petitioner-Cross-Respondent,
International Brotherhood of Electrical Workers, Local 134,
AFL-CIO, Intervening Petitioner,
v.
CHICAGO TRIBUNE COMPANY, Respondent-Cross-Petitioner.
Nos. 90-3182 and 90-3499.
United States Court of Appeals,
Seventh Circuit.
Argued May 16, 1991.
Decided Sept. 24, 1991.

Page 792

Elizabeth Kinney, N.L.R.B., Chicago, Ill., Aileen A. Armstrong, Howard E. Perlstein, Marilyn O'Rourke (argued), Appellate Court, Enforcement Litigation, Washington, D.C., for N.L.R.B.

Douglas A. Darch (argued), Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., for Chicago Tribune Co.

Robert E. Fitzgerald, Jr., Chicago, Ill., for International Broth. of Elec. Workers, Local 134, AFL-CIO.

Before CUMMINGS, CUDAHY and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

The International Brotherhood of Electrical Workers, AFL-CIO (the Union), won a

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representation election among a group of employees of the Chicago Tribune Company (the Company). The Company filed objections to the election. The National Labor Relations Board (the Board) overruled the objections and certified the Union as the bargaining representative of the unit employees. The Union demanded that the Company commence bargaining. When the Company refused to bargain with the Union, the Board determined this refusal to be unlawful and ordered the Company to bargain with the Union. The Board filed an application for enforcement; the Company filed a cross-petition for review. For the following reasons, we deny the petition for review and enforce the order.
I
BACKGROUND

The Company and the Union had a relationship, dating back about 40 years, that allowed the Company to obtain many of its electricians through referrals from the union hall. The Union, however, did not have a collective bargaining agreement with the Company. On July 8, 1988, the Union filed a representation petition with the Board seeking to represent the Company's electricians. In a secret-ballot election held on October 4, 1988, the employees selected union representation by a vote of 25-14.

The Company filed several objections to the election. First, the Company contended that the Union threatened employees with forfeiture of their pensions if employees failed to support the Union in the election. The Union's pension required an employee to have at least 20 years of consecutive service and to maintain his membership in good standing until retirement. Under the Union rules, individuals could lose their "membership in good standing" (and thus their pension) by working at a non-union employer, which the Company would become if employees voted against Union representation. Respondent's Br. at 7. A supervisor testified to the regional director that an employee told him that, if the Company won the election, he might lose his pension benefits; the employee did not say, however, that anyone connected with the Union had so stated. On the basis of this submission, the Company argued that employees were told that they would lose their pensions if they did not vote for the Union.

The Company's second objection to the election was that the Union's steward told a group of three or four employees in August of 1988 that, if the Union lost the election, the Union would "blackball" the employees. Another employee reported that on September 5, 1988, he heard that, if the union lost the election, the employees would be blackballed from working in other union shops in the Chicago area.

The Company also alleged that the Union had promised to grant benefits to employees if they voted in favor of the Union. The Company asserted that employees were promised upgraded credentials and that three workers actually received upgraded credentials in the critical period before the election. Moreover, the Company claimed that the Union made promises to employees that, if the Union won the election, they would receive a Union pension considerably more generous than the then-current pension.

Finally, the Company contended that it should not be required to bargain with the Union because the Union had demonstrated a propensity for invidious racial discrimination. This argument was based on what the Company described as the Union's "long and ignominious history of corruption and discrimination," including admission practices that discriminate against blacks and Hispanics. Respondent's Br. at 10.

The Board's regional director conducted an administrative investigation. Both the Company and the Union were permitted to submit evidence regarding each of the foregoing objections to the election. After reviewing the evidence, the regional director recommended to the Board that each of the Company's objections be overruled. On June 9, 1989, the Board adopted the regional director's findings and recommendations, denied the Company's request for an evidentiary hearing, and certified the Union as

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the collective bargaining agent of the unit employees. The Company's request for reconsideration was denied on September 8, 1989.

The Company refused to bargain and the Union filed an unfair labor practices charge. Based on that charge, the Acting General Counsel issued a complaint alleging that the Company's refusal to bargain violated sections 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. § 151, et seq. On December 11, the General Counsel filed a motion for summary judgment.

On July 11, 1990, the Board determined that all issues raised by the Company were or could have been litigated in the underlying representation proceeding and that the Company had not offered any newly discovered and previously unavailable evidence, nor alleged any special circumstances that would require the Board to reexamine its decision in the representation proceeding. The Board thus granted the motion for summary judgment and issued an order requiring the Company to cease and desist from refusing to bargain with the Union. The Company now seeks review of the Board's order.

II
ANALYSIS

A. Guiding Principles

In several recent decisions, this court has set forth the principles that must guide our decision here. At the outset, we must remind ourselves that our review of the Board's decision to certify a collective bargaining agent following an election is extremely limited. Van Leer Containers, Inc. v. NLRB, 841 F.2d 779, 784 (7th Cir.1988). "We must defer to the Board's reasonable selection of rules and policies to govern the election, and we will uphold the application of those rules if substantial evidence supported the Board's decision." Id.; see also NLRB v. Browning-Ferris Indust., Inc., 803 F.2d 345, 347 (7th Cir.1986). The burden on the party challenging an election is a formidable one. As Judge Wood wrote in Van Leer, the party challenging the election has the burden of showing that substantial evidence does not support the Board's decision. Van Leer, 841 F.2d at 784. To meet this burden, the objecting party must show that the unlawful acts occurred and "that those acts interfered with the employees' exercise of free choice to such an extent that they materially affected the results of the election." NLRB v. Service Am. Corp., 841 F.2d 191, 195 (7th Cir.1988). 1 When presented with such allegations, the regional director is required to hold an evidentiary hearing if there are "substantial and material factual issues." 29 C.F.R. § 102.69(d); see generally NLRB v. ARA Serv., Inc., 717 F.2d 57, 63-64 (7th Cir.1983). "[T]he regional director must hold a hearing when the employer presents facts 'sufficient to support a prima facie showing of objectionable conduct,' that is, of 'misconduct sufficient to set aside the election under the substantive law of representation elections.' " NLRB v. Lovejoy Indus., Inc., 904 F.2d 397, 400 (7th Cir.1990) (quoting Service Am. Corp., 841 F.2d at 195). The decision of whether to hold an evidentiary hearing requires the Regional Director to draw upon a great deal of expertise about the labor relations environment. As Judge Easterbrook wrote in Lovejoy Industries,

a decision not to hold a hearing when confronted with certain evidence amounts to a decision that this evidence is not a prima facie case of enough misconduct to set aside an election. That is the sort of decision the Board was established to make, and to which the courts must defer. Additional hearings mean additional delay. Congress insulated from judicial review the decision to certify a union as bargaining representative precisely because it was concerned about the baleful effects of delay.

904 F.2d at 402. 2 Consequently, in reviewing the decision not to conduct an evidentiary

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hearing on the Company's objection, we must consider whether substantial evidence supported the Board's determination that the Company did not present a prima facie case for setting aside the election. See Van Leer, 841 F.2d at 784; NLRB v. Affiliated Midwest Hosp., Inc., 789 F.2d 524, 527 (7th Cir.1986).

B. The Company's Allegations

1. Threat of loss of pension rights

The Company alleged that...

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    ...exercise of free choice to such an extent that they materially affected the results of the election.' " NLRB v. Chicago Tribune Co., 943 F.2d 791, 794 (7th Cir.1991) (footnote omitted) (quoting NLRB v. Service Am. Corp., 841 F.2d 191, 195 (7th Cir.1988)), cert. denied, 504 U.S. 955, 11......
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    ...209, 212 (7th Cir.1995) (quoting Tempco Elec. Heater Corp. v. NLRB, 999 F.2d 1109, 1111 (7th Cir.1993)). 7 NLRB v. Chicago Tribune Co., 943 F.2d 791, 794 (7th Cir.1991) (citing Van Leer Containers, Inc. v. NLRB, 841 F.2d 779, 784 (7th Cir.1988)), cert. denied, 504 U.S. 955, 112 S.Ct. 2301, ......
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    ...free choice "to such an extent that they materially affected the results of the election." N.L.R.B. v. Chicago Tribune Company, 943 F.2d 791, 794 (7th Cir.1991) (citation A. Alleged Unlawful Electioneering Inside the Polling Area The Company contends that Terkel engaged in last-mi......
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