National By-Products, Inc. v. N.L.R.B.
| Decision Date | 07 May 1991 |
| Docket Number | BY-PRODUCT,INC,Nos. 89-2326,89-2475,s. 89-2326 |
| Parties | 137 L.R.R.M. (BNA) 2275, 119 Lab.Cas. P 10,865 NATIONAL, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Paul A. Curtis, Gamble, Riepe, Webster, Davis & Green, Des Moines, Iowa, for petitioner/cross-respondent.
Barbara A. Atkin, John C. Truesdale, Judith P. Flower, Aileen A. Armstrong, N.L.R.B., Appellate Court, Enforcement Litigation, Washington, D.C., Joseph A. Szabo, Director, Philip E. Bloedorn, N.L.R.B., Region 30, Milwaukee, Wis., Donald J. Crawford, N.L.R.B., Region 13, Chicago, Ill., for respondent/cross-petitioner.
Before BAUER, Chief Judge, EASTERBROOK and KANNE, Circuit Judges.
Following a sequence of two representation elections, the National Labor Relations Board certified the Teamsters "General" Local Union No. 200, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, as the collective bargaining representative for a certain unit of employees of National By-Products, Inc. National By-Products disputes the validity of the certification and alleges that the Board improperly set aside the results of the first election. The union counters that National By-Products unlawfully threatened and discriminated against union supporters prior to the first election and thus the set-aside and certification were both valid. The Board agreed with the union and found that the company violated sections 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. Sec. 151, et seq. Today we review the Board's decision.
The National Labor Relations Board conducted the first representation election on June 19, 1987 pursuant to a petition for representation filed on May 15, 1987 by the union. Seventeen ballots were cast for the union and twenty-two cast against; there were two challenged ballots. The union filed objections to the results and claimed that National By-Products had coerced employees by threatening them with the delay of plant expansion plans unless the union issue was resolved, and discriminating against union supporters by imposing a delayed and severe disciplinary action on an employee who allegedly violated the company's no-solicitation policy. These objections were the subject of a hearing conducted at the behest of the regional director on August 27, 1987.
At the hearing, the hearing officer observed the witnesses' testimony and examined the evidence; he then recommended in his report that the Board sustain the objections and direct a second election. National By-Products filed exceptions to the report. On October 19, 1988, the Board overruled National By-Products' exceptions, adopted the hearing officer's report and recommendation, and ordered a second election. The second election was held on December 12, 1988 and resulted in twenty ballots cast for the union and eighteen cast against with one challenged ballot. National By-Products filed objections to the results of the second election and claimed that the employees were improperly given the impression that National By-Products acted in an illegal manner with respect to the first election and that the results of the first election should have been upheld as the employer's conduct prior to and during the first election was well within the bounds of the law.
The regional director recommended that the Board overrule the objections and certify the union; National By-Products filed exceptions to the regional director's report. The Board considered the exceptions, but adopted the regional director's recommendation and overruled the objections. On February 24, 1989, the Board issued a certificate of representation and the union requested that National By-Products bargain with it.
National By-Products refused to bargain and the union filed a charge. Pursuant to that charge, the regional director issued a complaint alleging that National By-Products' refusal to bargain violated sections 8(a)(1) and (5) of the Act. In its answer, National By-Products admitted their refusal to bargain but asserted that no violation had occurred because the union had been improperly certified as the bargaining representative. General Counsel filed a motion for summary judgment on April 20, 1989, and alleged that there were no triable issues as National By-Products merely sought to litigate again the initial representation proceeding.
On June 15, 1989, the National Labor Relations Board found that all representation issues were or could have been litigated in the underlying representation proceeding and that National By-Products had not offered any newly discovered and previously unavailable evidence, nor alleged any special circumstances which would require the Board to reexamine its decision made in the representation proceeding. The Board granted General Counsel's motion for summary judgment and issued a decision and order that National By-Products by refusing to bargain had engaged in unfair labor practices in violation of sections 8(a)(1) and (5) of the Act, and that National By-Products must cease and desist from engaging in unfair labor practices, bargain upon request with the union, and post appropriate notice. National By-Products now seeks review of that decision and order. 1 The company claims that its actions were not coercive and argues that the results of the first election should be reinstated, or in the alternative, the second election should be set aside due to events which preceded the second election and interfered with the employees' exercise of free choice. The Board has cross-petitioned for enforcement of its order. If the Board properly certified the union, then the company violated sections 8(a)(1) and (5) since they have admitted their refusal to bargain. See Beloit Corp., Castings Div. v. NLRB, 857 F.2d 1154, 1156 (7th Cir.1988). Because we find that the union was properly certified after the second election, we enforce the Board's decision that the company violated sections 8(a)(1) and (5) of the Act.
National By-Products owns a plant in Berlin, Wisconsin where it processes animal remains into marketable products. Wisconsin By-Products first built the Berlin plant in approximately 1955; National By-Products ultimately purchased the facility in 1983. The business was owned originally by the Langenhorst family; Lawrence Langenhorst has managed the plant since 1955.
In April of 1987, National By-Products' management announced to the employees that the company planned to expand the Berlin facility and that construction would commence the following month. On May 15, 1987, the union filed a petition for representation of a particular unit of employees at the plant; the Board scheduled an election for June 19, 1987.
The hearing officer found that prior to the election, Lawrence Langenhorst told employees that construction plans had been put on hold and encouraged them to believe that he was too busy to proceed with construction plans because of the union campaign. Langenhorst testified that at a meeting of drivers he said, "I [can] not take care of the day-to-day matters, [ ] hold meetings with supervisors and make an attempt to answer questions and concerns of the employees and build the plant at the same time." Langenhorst admitted that the meetings and employee questions and concerns he had referred to were related to the union organizing campaign. Langenhorst explained to the hearing officer that the delay in construction had been caused by delayed bids on new equipment and the new business of handling bulk grease. Langenhorst further explained that employees were not told about these reasons for the construction delay because management felt they were privileged company information. Langenhorst also testified that at a June 11 meeting of first and third shift employees, an employee asked whether National By-Products would build the plant; Mike Morris, the regional manager, responded, "Why should National By-Products invest in a new plant if management and the employees cannot get along?"
Wayne Gustke, a union supporter, testified that on June 10, Langenhorst told him and four other truck drivers that he could not fight the union and build the plant at the same time. David Shilling, an employee, testified that on June 10, Langenhorst said that his job was like truck driving, "I can only drive ten hours a day, I have to take a break, with the union things going on and other things, it just was not possible to build [at the same] time." Further, another employee, Gary Albrecht, testified that his supervisor asked him prior to the election, "Wouldn't you feel bad if the union came in and the plant was closed?" Although Albrecht could not recall any details concerning this conversation, the hearing officer found that Albrecht's testimony supported the union's objections.
After considering the entire record and observing the testimony and demeanor of the witnesses, the hearing officer found that the employer's tactics had a coercive effect on employees' actions at the polls. Specifically, the hearing officer found that Lawrence Langenhorst implied and encouraged employees to believe that construction of the new plant was being delayed because the question of representation had been raised. The hearing officer found that Langenhorst could have explained to the employees that the delay was caused by bidding problems or other lawful reasons; rather than doing so, he reported that he was too busy to spend time on construction plans because of the union campaign. The hearing officer concluded that Langenhorst's strategy encouraged the employees to believe that the delay was caused by their union activity and thus coerced employees into refraining from supporting the union.
On May 14 or 15, National...
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