Stripco Sales, Inc. v. N.L.R.B.
| Citation | 934 F.2d 123 |
| Decision Date | 06 June 1991 |
| Docket Number | Nos. 89-3781 and 90-1299,s. 89-3781 and 90-1299 |
| Parties | 137 L.R.R.M. (BNA) 2544, 119 Lab.Cas. P 10,771 STRIPCO SALES, INC., Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Lawrence J. Casazza, Vedder, Price, Kaufman & Kammholz, Chicago, Ill., for Stripco Sales, Inc.
John C. Truesdale, Judith A. Dowd, John Fawley, Aileen A. Armstrong, N.L.R.B., Appellate Court, Enforcement Litigation, Washington, D.C., William T. Little, N.L.R.B., Indianapolis, Ind., for N.L.R.B.
Before BAUER, Chief Judge, and POSNER and RIPPLE, Circuit Judges.
Chauffeurs, Teamsters and Helpers Local Union No. 364, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union) filed a petition to represent the employees of Stripco Sales, Inc. (Stripco). The Union won an election among Stripco's employees to determine whether the Union would serve as their representative. Stripco filed its objections to the election with the National Labor Relations Board (Board). The Board denied the objections. When Stripco refused to bargain with the Union, the Board determined this refusal to be unlawful and ordered Stripco to bargain with the Union. Stripco filed this petition for review, and the Board filed a cross-application for enforcement. For the following reasons, we deny the petition for review and enforce the order.
On July 28, 1988, the Union filed a petition to represent certain employees of Stripco. An election was conducted on September 15, 1988; 29 votes were cast in favor of representation by the Union, and 26 votes were cast against such representation. Stripco filed its objections to the election on September 22, 1988. Stripco alleged that the Union had threatened an employee with the loss of pension benefits in an attempt to coerce that employee to refrain from voting, that the Union threatened and intimidated employees, and that these events, taken together, created an atmosphere of coercion.
The Board conducted a hearing concerning Stripco's objections. On December 23, 1988, the hearing officer issued a report recommending that the Board overrule Stripco's objections. Stripco filed exceptions to the hearing officer's report. The Board subsequently adopted the decision of the hearing officer and certified the Union as the employees' collective bargaining representative.
When the Union attempted to begin collective bargaining with Stripco, Stripco refused to bargain on the ground that the Board's certification of the Union was improper. The Union then filed an unfair labor practice charge with the Board. In its answer, Stripco admitted that it refused to bargain with the Union and continued to contest the Union's certification. On December 14, 1989, the Board entered its Decision and Order. It found that Stripco's refusal to bargain with the Union violated sections 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(5) and (1), which require employers to bargain collectively with the appropriate employee representatives. The Board's order requires Stripco to bargain with the Union. Stripco now challenges the Board's order in this petition and again contests the propriety of the Union's certification.
Our review of the Board's decision to certify a collective bargaining representative after an election has been conducted is "extremely limited." NLRB v. Browning-Ferris Indus. of Louisville, Inc., 803 F.2d 345, 347 (7th Cir.1986); see also NLRB v. Tom Wood Datsun, Inc., 767 F.2d 350, 352 (7th Cir.1985). We must enforce the Board's order if, after viewing the record as a whole, the order is supported by substantial evidence. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). "In the context of a challenge to an election, the challenging party 'must establish that there is not substantial evidence supporting the conclusion that any election irregularities did not "so impair the integrity of the ballot result that invalidation of the election is necessary." ' " Browning-Ferris, 803 F.2d at 347 (quoting NLRB v. Affiliated Midwest Hosp., Inc., 789 F.2d 524, 528 (7th Cir.1986) (quoting NLRB v. Southern Health Corp., 514 F.2d 1121, 1123 (7th Cir.1975))).
Each of the arguments advanced by Stripco is based on factual determinations by the Board that explicitly turned on the hearing officer's assessment of credibility and demeanor. Such determinations "may not be overturned absent the most extraordinary circumstances such as utter disregard for sworn testimony or the acceptance of testimony which on its face is incredible." Tuf-Flex Glass v. NLRB, 715 F.2d 291, 295 (7th Cir.1983). The hearing officer's task in this case was particularly difficult because of the inconsistent testimony from various witnesses (and occasionally the same witness). The hearing examiner had "the painstaking and, given the inconsistency of narratives emanating in some cases from the very same witness, exasperating task of winnowing the most likely version of the pre-election events." Id. Here, the Board based its decision on the hearing officer's credibility determinations and reasonable inferences drawn from the evidence. We shall not normally second-guess such findings even if other interpretations of the record are also permissible. See NLRB v. Harrison Steel Castings Co., 728 F.2d 831, 836 n. 9 (7th Cir.1984).
Stripco first argues that the Union threatened Max Worsham, a janitor for Stripco and member of the Union for 24 years while working for a previous employer, with the loss of his pension benefits if he voted in the election. The Union presented evidence, accepted by the hearing officer and adopted by the Board, concerning Worsham's failure to vote. According to the Union, Worsham came into the Union's office on August 17, 1988 because he was concerned about his pension benefits (Worsham apparently was concerned that his work for Stripco would jeopardize his receipt of pension benefits). During his visit to the Union office, Worsham spoke with Union business agent Robert Warnock III about both his pension and the status of the Union campaign. Worsham gave Warnock his telephone number and indicated that he was amenable to future campaign discussions.
Warnock ultimately telephoned Worsham in September to ask if they could meet again to discuss the campaign. Worsham agreed. The arranged meeting occurred on September 13; Worsham continued to express concern about his pension, this time to another Union business agent, Gary Monroe, who was also present at the meeting. Although Monroe and Warnock were unable to answer Worsham's questions, they showed Worsham a letter from his file indicating that his employment with Stripco did not affect adversely his pension eligibility. When Monroe inquired about Worsham's views on the forthcoming election, Worsham indicated that he was indifferent to the results. Because Worsham was indifferent, Monroe asked him not to vote in the election.
Stripco presented a somewhat different version of the events that led to Worsham's failure to vote in the Union election. Worsham testified that he met with Warnock and Monroe at the Union Hall on September 13, 1988. The meeting began with Warnock asking Worsham how the Union campaign was proceeding. Worsham answered that he did not know the status of the campaign because other Stripco employees did not speak with him. At the hearing, Worsham testified as follows:
And then Bob Warnock said, Bob Warnock wanted to know if I would agree to stay home that day. I said--I promised him I would, because I had work to do at home....
Q. Okay. Max, why did you agree to stay home and not to vote?
A. Well, I was kind of concerned about my pension. My name, like I say, my name, and my social security number would be on there; and if [the pension fund] would get it, he said, we'd all be in trouble.
Q. Okay. Who said "we'd all be in trouble?"
A. I think it was Bob.
Q. Bob Warnock?
A. Right.
Q. And if you had not--well, if you had not had that conversation, would you have voted?
A. Yes, I would have.
Stripco also points to the apparent contradiction between the testimony of Warnock and Monroe in support of its argument that these two Union officials coerced Worsham not to vote in the election. Warnock testified that he and Monroe discussed the idea of attempting to dissuade Worsham from voting, and that the purpose for the September 13 meeting with Worsham was to prevent him from voting. However, Monroe testified that no such preliminary discussions occurred. On the basis of this contradiction, as well as the testimony of Worsham, Stripco argues that its version of the events is more credible than that advanced by the Union.
No credited evidence demonstrates that either Monroe or Warnock indicated to Worsham that his continued receipt of pension benefits was contingent on his decision whether to vote. "The Board has the primary responsibility for determining whether statements are to be construed as threats[,] ... and the Board's decision in this regard will not be disturbed on appeal 'if the record as a whole reveals substantial...
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