Van Leer Containers, Inc. v. N.L.R.B.
| Decision Date | 15 March 1988 |
| Docket Number | Nos. 86-1799,s. 86-1799 |
| Parties | 127 L.R.R.M. (BNA) 3230, 108 Lab.Cas. P 10,400 VAN LEER CONTAINERS, INC., Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner. & 86-2002. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Charles E. Murphy, Murphy, Smith & Polk, Chicago, Ill., for petitioner, cross-respondent.
Linda Dreeben, NLRB (Elliott Moore--NLR), Washington, D.C., for respondent, cross-petitioner.
Petition for Enforcement and Review of an Order of the National Labor Relations Board.
Before WOOD, and RIPPLE, Circuit Judges, and GORDON, Senior District Judge. *
Employees of Van Leer Containers, Inc. (Van Leer) voted to have the United Steelworkers of America, AFL-CIO (Union) serve as their bargaining representative. Van Leer refused to bargain with the Union, claiming improprieties in the election process. The National Labor Relations Board (Board) overruled Van Leer's objections and found that Van Leer had violated sections 8(a)(1) and (5) of the National Labor Relations Act (Act) 1 by refusing to bargain with the Union. Van Leer filed a petition with this court to obtain review of the Board's decision. The Board cross-petitioned for enforcement of its order.
Inland Steel Container Company (Inland) operated a steel drum manufacturing plant in New Orleans, Louisiana. Employees at the New Orleans plant were represented by the Union. In November 1982, Inland decided to close its New Orleans plant, and informed the employees and the Union of its decision. On December 20, 1982, Inland exercised an option to purchase a building and land in Canton, Mississippi, for the purpose of relocating its steel drum operations. In discussions with the Union, Inland maintained that the New Orleans employees had no contractual transfer rights entitling them to jobs in Canton. On May 17, 1983, the Union filed an unfair labor practice charge with the Board. The Union alleged that Inland's relocation of the New Orleans plant without the Union's consent constituted an unlawful refusal to bargain, resulting in the New Orleans employees permanently losing their jobs. The Union claimed that, by its actions, Inland had violated sections 8(a)(1), (3), (5), and 8(d) of the Act.
Despite the pending unfair labor practice proceeding, the New Orleans plant closed in September 1983 and was relocated to Canton in October 1983. Inland later sold its Canton container operations to Van Leer. On October 10, 1984, the Union filed a petition for an election at Van Leer's Canton facility.
Hubert Coker, an International Representative of the Union, led the organizing activity at Van Leer's Canton plant on behalf of the Union. At an organizational meeting, Coker allegedly referred to the Union's pending unfair labor practice charge against Inland, mentioning the possibility of New Orleans workers taking the Canton employees' jobs. The pending New Orleans litigation also received extensive coverage in the local Canton press. Four days before the election, Coker mailed a letter to eligible voters, outlining the Union's view on the consequences of the upcoming election. 2
On election day, Coker spoke to an employee, Jamie Squires, on her way to the polls to vote. According to Squires's version, Coker told her and her companions to vote for the Union. Squires replied that "if you vote for the Union, you will be on welfare." Coker retorted that if Squires voted for the Union, she would indeed be on welfare, because John Lane, a Van Leer supervisor, would return to Chicago, leaving Squires all alone. (Coker apparently believed that there was a personal relationship between Squires and Lane.) Squires proceeded to the polling area, where she voted. Upon leaving, Squires again passed Coker and approached him. Squires asked Coker to repeat what he had said earlier. Coker told her that she was going to need help, because she wouldn't have anything when Lane returned to Chicago. Squires then called Coker a few profane names, and Coker returned the courtesy. Other employees witnessed the exchange between Coker and Squires.
Coker engaged in further activity around the polls on election day. That day, the Union had prepared and distributed a handbill to employees that listed the names of fifty-six of the eighty-nine eligible voters and identified them as having "pledged their support" to the Union. The handbill claimed that the Union had a large majority and urged employees to "get on the bandwagon." On the afternoon of election day, Coker stopped voter Jessie Williams and gave him a cap bearing the Union's insignia. Coker reportedly told Williams to put the cap on, but Williams declined. Coker urged Williams to wear the cap, emphasizing that Williams's name was listed on the handbill, demonstrating his support for the Union. Williams claimed that he did not put his name on the handbill, to which Coker replied that it was already on the handbill.
In addition to Coker distributing caps bearing the Union's insignia on election day, Union observers wore the Union hats at the opening of the polls and during the voting session. One Union observer placed a Union cap on the table used to check in voters and left the hat there for the duration of the election. The Board agent conducting the election did not forbid Union observers to display Union insignia in the voting area during the election.
The Van Leer employees voted fifty-two to thirty-four in favor of the Union as their bargaining representative.
On December 11, 1984, Van Leer filed objections to conduct affecting the outcome of the election. First, Van Leer claimed that the Union had threatened employees with retaliation and/or loss of their jobs if the employees did not vote for the Union. Second, Van Leer alleged that the Union threatened employees that, unless the Union became the Canton employees' bargaining representative, the Union would attempt to secure the Canton jobs for the New Orleans employees. Van Leer also claims that the Board acted in an arbitrary and capricious manner by processing the Union's election petition and conducting the election while the unfair labor practice charge against Inland, the plant's former owner, was pending. Finally, Van Leer charged that the Union destroyed the laboratory conditions of the election by displaying Union insignia in the polling place and by other impermissible acts on election day.
The Board's Regional Director conducted an ex parte investigation of Van Leer's objections and issued a report on January 16, 1985. Concluding that Van Leer raised no substantial or material issues affecting the results of the election, the Regional Director recommended that the Board overrule all the objections and certify the Union.
On June 21, 1985, the Board issued its decision. A majority of the three-member panel adopted the Regional Director's findings and recommendation and certified the Union as bargaining representative for the Van Leer employees. One Board member dissented, stating that she would direct a hearing on Van Leer's objection to Union statements regarding the Canton employees' loss of jobs to New Orleans workers if the Union did not win the December 4 election.
Van Leer subsequently refused to bargain with the Union. The Union then filed an unfair labor practice charge against Van Leer. In responding to the General Counsel's complaint, Van Leer claimed that the Union's certification was invalid because of the improper election and because no hearing was held on Van Leer's election objections. The General Counsel moved for summary judgment, claiming that the issues were or could have been litigated in the prior certification proceeding. A majority of the panel granted the motion, with one member again dissenting on the grounds that Van Leer was entitled to a hearing on its second objection. Van Leer seeks review of the Board's order requiring it to bargain with the Union. 3 The Board cross-petitioned for enforcement of its order.
Van Leer contends that the Board improperly failed to review the entire record and that therefore we should deny enforcement of the Board's order. This court has recognized that the Board should not adopt the findings and recommendations of the Regional Director without reviewing the affidavits upon which the Regional Director relied. Prairie Tank Southern, Inc. v. NLRB, 710 F.2d 1262, 1265 (7th Cir.1983); NLRB v. Allis-Chalmers Corp., 680 F.2d 1166, 1169 (7th Cir.1982).
In this case, the Board had before it all the affidavits proffered by Van Leer. The affidavits of Coker and other employee witnesses that were prepared by the Regional Director in the course of his investigation, however, were not forwarded to the Board. According to Board regulations, witness statements are not included as part of the record. 29 C.F.R. Sec. 102.69(g)(1)(ii) (1987) () (emphasis added). An objecting party may append to its exceptions to the Regional Director's decision copies of affidavits "it has timely submitted to the regional director and which were not included in the report or decision." Id. Sec. 102.69(g)(3). Thus, parties are on notice that the affidavits generated by the Regional Director's investigation are not part of the record, and that the objecting party has the responsibility to file such affidavits with the Board. L.C. Cassidy & Son, Inc. v. NLRB, 745 F.2d 1059, 1065 (7th Cir.1984). Van Leer was on notice of this duty to transmit any affidavits it wanted the Board to review when considering the Regional Director's report. Van Leer thus should have known that the affidavits that Van Leer did not append to its exceptions, despite the fact that Van Leer did not have...
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