Ron Tirapelli Ford, Inc. v. N.L.R.B.

• Citation: 987 F.2d 433
• Decision Date: 02 March 1993
• Docket Number: No. 91-3144,No. 179,I,179,91-3144
• Parties: 142 L.R.R.M. (BNA) 2655, 61 USLW 2580, 124 Lab.Cas. P 10,582 RON TIRAPELLI FORD, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and General Chauffeurs, Sales Drivers, and Helpers Union Localntervening Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 433

987 F.2d 433

142 L.R.R.M. (BNA) 2655, 61 USLW 2580,

124 Lab.Cas. P 10,582

RON TIRAPELLI FORD, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and General Chauffeurs, Sales Drivers, and Helpers Union Local

No. 179, Intervening Respondent.

No. 91-3144.

United States Court of Appeals, Seventh Circuit.

Argued June 4, 1992.

Decided March 2, 1993.

Lawrence M. Cohen (argued), Diane E. Kristen, Fox & Grove, Chicago, IL, for Ron Tirapelli Ford, Inc.

Joan E. Hoyte (argued), N.L.R.B., Contempt Litigation Branch, Washington, DC, Elizabeth Kinney, N.L.R.B., Region 13, Chicago, IL, Aileen A. Armstrong, Howard E. Perlstein, N.L.R.B., Appellate Court, Enforcement Litigation, Washington, DC, for N.L.R.B.

Roger N. Gold (argued), Gold & Polansky, Chicago, IL, for General Chauffeurs, Sales Drivers, and Helpers Union Local No. 179.

Before BAUER, Chief Judge, RIPPLE, Circuit Judge, and WOOD, Jr., Senior Circuit Judge.

RIPPLE, Circuit Judge.

Ron Tirapelli Ford, Inc. (Tirapelli Ford) petitions for review of an order of the National Labor Relations Board. Tirapelli Ford was found to have violated the National Labor Relations Act, 29 U.S.C. § 158(a)(1) and (5) (1988) (sections 8(a)(1)

                and (a)(5)). 1  The Board determined that an employer-submitted "RM" election petition was void ab initio.   The representation election conducted as a result of that petition was declared a nullity.   The Board imposed a bargaining order and required that Tirapelli Ford make retroactive contributions to the Union fringe benefit funds.   The Board has submitted a cross-application for enforcement.   For the following reasons, we remand the fringe benefits issue for further findings.   We enforce the Board's order in all other respects
                

I

BACKGROUND

A. Facts

In late April or early May 1989, union employee William Bellinghiere expressed displeasure with his union ² membership to Mr. Tirapelli, president of Ron Tirapelli Ford, and asked his advice about how to proceed. Mr. Tirapelli then sought advice from the company attorney, who told him that Mr. Bellinghiere should contact the Board's Regional Office regarding decertification procedures. Mr. Tirapelli conveyed this information to Mr. Bellinghiere, who subsequently drafted a decertification petition and again sought Mr. Tirapelli's advice. Mr. Tirapelli told Mr. Bellinghiere that his attorney would review it; later the decertification petition was returned to Mr. Bellinghiere, and Mr. Tirapelli offered to assist Mr. Bellinghiere with the process after the requisite number of signatures had been obtained.

The Administrative Law Judge (ALJ) found that Mr. Tirapelli had assisted and encouraged the initiation of the employee petition and then coerced employees into signing it. ALJ Decision at 6. Mr. Tirapelli talked with union members Ramiro Caudillo, Edward Mance, and Jeff Momper in an effort to obtain their signatures on the petition. At these interviews, Mr. Tirapelli promised them better benefits and a company profit-sharing plan when the Union was ousted. He also made veiled threats and promises in coercive circumstances. Specifically, the ALJ found Mr. Tirapelli's testimony to be unconvincing and evasive. Id. at 3. Mr. Tirapelli told Caudillo that he could get rid of Caudillo whether there was a union or not and that, if the Union went, Caudillo would be fully vested in a company fund that took the place of the pension plan. Id. The ALJ construed this encounter with Caudillo as an "implied threat of discharge." Id. at 4. Similarly, the ALJ found that Mr. Tirapelli had promised Momper a promotion and better benefits, and had offered veiled threats of discharge if Momper failed to cooperate. Id. at 4-5. Mr. Tirapelli also advised the employees not to mention the conversations to anyone else. ³ When the signed petition was presented to Tirapelli Ford on May 9, Tirapelli Ford informed the Union that it had withdrawn its membership from the Auto Association and that the Association would not be authorized to represent it in negotiations with the Union for a new agreement. ⁴ On May 30, 1989, Tirapelli Ford filed with the Board's Regional Office an RM election petition, supported by the decertification petition circulated by Bellinghiere and a On June 19, Mr. Tirapelli met with the employees and outlined the company's allegedly superior insurance plan. When Momper balked, Mr. Tirapelli spoke with him privately. Tirapelli Ford argues once again that Mr. Tirapelli's remarks at the June meeting were but statements of opinion and fact that were not coercive. See 29 U.S.C. § 158(c); Weather Shield Mfg., Inc. v. NLRB, 890 F.2d 52, 57 (7th Cir.1989). The ALJ found Tirapelli's pre-election conversation with Momper to be threatening and coercive.

                sworn affidavit from Mr. Tirapelli that he had reason to believe that the Union did not command a majority of employees.   The Union and Tirapelli Ford later entered into a stipulated election agreement
                

A tie vote in the July 11, 1989 election ended the Union's status as a collective bargaining agent. Tirapelli Ford then stopped making payments to the Union's health insurance and pension plans. After the election, the Union raised, apparently for the first time, questions about the validity of the underlying petition. Following the election, several employees disclosed Mr. Tirapelli's coercive conduct leading up to the petition for the decertification election. On August 15, 1989, when the Union requested negotiations toward a new agreement, Tirapelli Ford refused to bargain. The Union then brought unfair labor practice charges against Tirapelli Ford.

B. Board Proceedings

On April 1, 1991, the ALJ issued his decision, and on August 27, 1991, the Board affirmed the decision in its entirety. ⁵ Both the ALJ and the Board determined that Tirapelli Ford had violated section 8(a)(1) by soliciting employees to oust the Union with promises of better benefits and by coercing and threatening employees into complying. In addition, it was found that Tirapelli Ford had violated section 8(a)(5) and (1) by withdrawing recognition of the Union, refusing to bargain with the Union, and unilaterally terminating fringe benefits plans in the collective-bargaining agreement. The Board agreed with the ALJ that both the tainted petition and the ensuing election should be nullified and the parties returned to their original positions. In addition to issuing a bargaining order, the Board ordered that the employer cease further unfair labor practices, rescind unilateral changes to wages and benefits, and reimburse the Union funds for any unpaid contributions for fringe benefits.

The remedy initially formulated by the ALJ and later ratified by the Board was based on the determination that the petition, and, therefore, the following election, were null and void. The Board confirmed the ALJ's conclusion that Tirapelli Ford was not justified in relying on the petition because it had "engaged in conduct designed to undermine employee support for, or cause their disaffection with the Union," ALJ Decision at 6 (citing Hearst Corp., 281 N.L.R.B. 764 (1986), aff'd, 837 F.2d 1088 (5th Cir.1988)), and that the petition could therefore not support a valid election. ALJ Decision at 6 (citing Hearst Corp., supra; Both the ALJ and the Board rejected Tirapelli Ford's argument that a bargaining order was an inappropriate remedy in the absence of the analysis mandated by NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). The Board held that this case does not fall under the aegis of Gissel because this case, unlike Gissel, involves "an incumbent union that was the object of an unlawfully assisted decertification effort." Board Decision at 3. Because the Board found the election to be a nullity, it rejected Tirapelli Ford's argument that Ideal Electric & Manufacturing Co., 134 N.L.R.B. 1275 (1978), barred the introduction of pre-petition unfair labor practices in an election challenge. According to the Board, this is not an election challenge: "the question whether the election should be set aside never became ripe for decision." Board Decision at 3. The Board further concluded that the Union could not have raised the unfair labor practices issue earlier because it did not learn of them until after the election.

                Alexander Linn Hosp. Ass'n & Hosp., 288 N.L.R.B. 103 (1988), enforced, 866 F.2d 632 (3d Cir.1989);   Central Health Servs.  Ass'n, 279 N.L.R.B. 60 (1986))
                

II ANALYSIS

A. Standard of Review

"The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive." 29 U.S.C. § 160(e); U.S. Marine Corp. v. NLRB, 944 F.2d 1305, 1313-14 (7th Cir.1991) (en banc), cert. denied, --- U.S. ----, 112 S.Ct. 1474, 117 L.Ed.2d 618 (1992). Therefore, we must affirm the "Board's finding of an unfair labor practice if it is based upon substantial evidence on the record, and on reasonable inferences drawn from the facts as found." Peoples Gas Sys., Inc. v. NLRB, 629 F.2d 35, 42 (D.C.Cir.1980).

The Act confers on the Board the power and the broad discretion, as well as the responsibility, "to devise remedies that effectuate the policies of the Act, subject only to limited judicial review." Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 898-99, 104 S.Ct. 2803, 2812, 81 L.Ed.2d 732 (1984). "[T]he relief which the statute empowers the Board to grant is to be adapted to the situation which calls for redress." NLRB v. MacKay Radio & Tel. Co., 304 U.S. 333, 348, 58 S.Ct. 904, 912, 82 L.Ed. 1381 (1938). We examine the Board's choice of remedy to "assure that the Board has considered the factors which are relevant to its choice of remedy, selected a course which is remedial rather than punitive, and chosen a remedy which can fairly be said to effectuate the purposes of the Act." Peoples Gas, 629 F.2d at 42.

'Because the relation of remedy to policy is peculiarly a matter for...