NLRB v. Midwestern Personnel ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 02-2209 & 02-2566
NATIONAL LABOR RELATIONS BOARD,
Petitioner/Cross-Respondent,
v.
MIDWESTERN PERSONNEL SERVICES, INC.,
Respondent/Cross-Petitioner.
____________
Application for Enforcement and Cross-Petition for
Review of an Order of the National Labor Relations Board.
Nos. 25-CA-25978-5, 25-C-25823-3 & 25-C-25503-2
____________
ARGUED DECEMBER 2, 2002—DECIDED MARCH 11, 2003
____________
Before BAUER, POSNER, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Midwestern Personnel Services
refused to reinstate 26 striking employees after the union
that a majority of its employees had selected as their
bargaining representative made an unconditional offer
to return to work. Midwestern refused to reinstate the
strikers because, in its view, the strike was staged solely
for economic reasons, which if true would permit it to
permanently replace the strikers. But the National Labor
Relations Board concluded that the strikers were moti-
vated in part by unfair labor practices, and thus were en-
titled to immediate reinstatement under Sections 8(a)(3)
2 Nos. 02-2209 & 02-2566
and (a)(1) of the National Labor Relations Act (“NLRA”), 29
U.S.C. §§ 158(a)(3), (a)(1). The Board now petitions for
enforcement of its order to reinstate the strikers, and
Midwestern petitions for review. Because we conclude
that substantial evidence on the record as a whole sup-
ports the Board’s conclusions, we grant the petition for
enforcement and deny the petition for review.
I.
Midwestern provides cement and transport truck driv-
ers to River City Holdings, Inc., which sells concrete mix
and related products from facilities located in Boonville
and Rockport, Indiana, and Owensboro, Kentucky, as well
as other locations. As of early 1997, Midwestern supplied
between 40 and 50 drivers to the three River City facil-
ities. In April 1997, River City announced to Samuel Ware,
Midwestern’s president, that it had agreed to supply
cement products to a job site known as the “AK Steel job”
from its Rockport plant, and that it would need to in-
crease the number of drivers working out of Rockport
from seven to about sixteen. River City also informed
Ware that AK Steel was a union job site, and that it
understood that Midwestern’s drivers would need to
hold union authorization cards in order to enter the prop-
erty.
Midwestern’s Indiana and Kentucky drivers were not
union-represented. But at the time Midwestern had a
collective bargaining agreement with the Chauffeurs,
Teamsters, and Helpers (“Teamsters”) Local Union 836
in Middletown, Ohio, covering Midwestern’s employees
based in York, Pennsylvania, although none of these
employees worked at River City facilities. Ware placed
a call to Local 836’s business agent, Tom Kinman, whom
he had dealt with in the past, to inquire whether Local
836 would “come into” Indiana. Kinman responded that
Nos. 02-2209 & 02-2566 3
it would and agreed to meet with the Rockport drivers
on June 2, 1997. Ware then told James Teegarden, Mid-
western’s area manager, that he planned on adding the
Rockport drivers within the coverage of the existing col-
lective bargaining agreement with Local 836. To help him
prepare for the meeting with the drivers, Teegarden sent
Kinman information about Midwestern’s Indiana opera-
tions and employees. Shortly before the meeting took
place, Ware and Kinman negotiated the terms of the
addendum. They agreed that the Rockport drivers would
receive a 20-cent per hour raise (Kinman insisted on this)
but would otherwise maintain their existing benefits and
terms of employment. In all other respects, the addendum
was identical to the contract covering the York employ-
ees, which included a no-strike clause.
Ware typed the addendum himself sometime on June 2,
1997. That same evening, Midwestern’s seven Rockport
drivers, accompanied by Teegarden, met Kinman at a
local restaurant after their shifts. Teegarden opened the
meeting by circulating an attendance sheet and di-
recting each driver to sign it, and by introducing Kin-
man, who distributed unsigned union authorization cards.
Teegarden then told the drivers about the AK Steel job
and explained that AK Steel was unionized and that
they would have to join the union to enter its property.
Teegarden further explained that this meant that the
drivers would have to join the union if they wanted to
keep working at Rockport. Teegarden then announced
that Midwestern and Teamsters Local 836 were prepared
to include them in the existing collective bargaining
agreement. Teegarden then left the room to allow Kin-
man to speak. Between 15 and 45 minutes later (the pre-
cise time is disputed) one of the drivers asked Teegarden
to come back into the meeting to answer a question. The
driver asked Teegarden what would happen if the driv-
ers signed the authorization cards but still did not want
4 Nos. 02-2209 & 02-2566
to join Local 836. Teegarden responded that if they voted
to let the union in, they would have to join the union to
continue driving trucks out of Rockport, “or something to
that effect,” he would later testify. At the end of the meet-
ing, all seven drivers signed the cards, but no formal vote
was taken whether to join Local 836. The following day,
Kinman faxed copies of the signed cards to Ware.
Discontent soon arose among the drivers about what
they perceived as being forced to join an out-of-state
union. Word of their unhappiness quickly spread to Team-
sters Local 215 in Evansville, Indiana, which then
sought to organize Midwestern’s Rockport, Boonville, and
Owensboro drivers. By July 1997, several drivers from
each location had signed union authorization cards with
Local 215, and on July 29 Local 215 filed unfair labor
practices charges with the NLRB against Midwestern.
Local 215 also filed an internal grievance with the Inter-
national Brotherhood of Teamsters (“IBT”) complaining
that Local 836—which by then had merged with Teamsters
Local 100 in Cincinnati and was known as Local 836/100—
violated internal union rules by entering Local 215’s
territory. On September 11, 1997, Local 836/100 informed
Midwestern that it was returning all dues remitted by
the Rockport drivers for August 1997, and that all future
dues should be sent to Local 215 in Evansville. Local
836/100 also informed the IBT that it did not oppose “trans-
ferring” the Rockport drivers to Local 215, although
Local 836/100 did not formally disclaim its interest in
representing the Rockport drivers until December 5, 1997.
On October 1, 1997, Midwestern received a letter from
Local 215 announcing that Local 215 represented a ma-
jority of Midwestern’s drivers working from River City’s
Rockport, Boonville, and Owensboro facilities, and re-
questing recognition as the drivers’ bargaining unit.
Midwestern did not respond favorably to Local 215’s letter,
and soon Ware began to hear rumors of a strike. In late
Nos. 02-2209 & 02-2566 5
November Ware dispatched Teegarden to meet with the
drivers and determine whether the rumors were true.
After learning that the rumors were indeed true, Teegarden
warned the drivers that they were still subject to the
collective bargaining agreement between Midwestern
and Local 836/100, including its no-strike clause. The
drivers then demanded a meeting with Ware. Ware met
with the drivers on December 1 and 2, and he repeated
Teegarden’s warning, admonishing the drivers that the no-
strike clause in the Midwestern-Local 836/100 contract
permitted Midwestern to terminate and permanently
replace any striking employees. Ware added that Mid-
western might also take disciplinary measures or legal
action. Some of the drivers responded by demanding
representation by a local union rather than one based
in Ohio.
Ware followed up the meetings by mailing a letter to
each employee confirming Midwestern’s position that
the collective bargaining agreement with Local 836/100
was enforceable “until proven different by the NLRB” (a
hearing before the Board on Local 215’s unfair labor
practices charges was scheduled for January 20, 1998); that
Midwestern would consider any strike to be a violation
of the no-strike clause and hence unprotected by federal
labor law; and that Midwestern would terminate, disci-
pline, or sue strikers. Shortly after this, Ware received
a letter from Local 836/100 disclaiming representation of
the Rockport drivers. This prompted Ware to contact
Local 215, and a short time later Ware met with Lewis
Smith, Local 215’s secretary-treasurer, and Joe DiMatteo,
Local 215’s business representative, to discuss the terms
of the collective bargaining agreement with Local 836/100
and possible settlement of the unfair labor practices
charges then pending before the Board. Ware made
known his beliefs that Local 836/100 had transferred its
representation of the Rockport drivers to Local 215, and
6 Nos. 02-2209 & 02-2566
that the contract with Local 836/100 “went with the trans-
fer” and remained effective. By letter a few days later, Ware
offered to recognize Local 215 if the union agreed to the
terms in the agreement between Midwestern and Local
836/100, and if Local 215 withdrew its pending unfair
labor practices charges with the NLRB. Smith later called
Ware to follow up, but nothing was resolved.
The drivers met at Local 215 on January 13, 1998, a
week before the hearing on the union’s unfair labor prac-
tices charges. After listening to a progress report from
Smith and DiMatteo on their negotiations with Midwest-
ern, several drivers, including Chris Means and Gerald
Fickas, complained of harassment and threats by the
company for expressing their willingness to strike. They
also complained that Midwestern had “shoved a local out
of Ohio down their throats,” and that the company con-
tinued to threaten them with the no-strike clause, even
though Local 836/100 had disclaimed representation. The
drivers then voted to strike, but DiMatteo persuaded
them to hold off initiating the strike pending the outcome
of a meeting the next day with Midwestern, and to allow
him to set the date of the strike. At the meeting the fol-
lowing day, the union and Midwestern exchanged initial
contract offers, and reached agreement on a few matters.
But they disagreed on major issues such as recognition,
pension terms, and duration of any contract, and at the
conclusion of the meeting Ware remarked that he be-
lieved that the parties were at impasse. Two days later,
DiMatteo informed the drivers that the strike would
begin on January 17. On that same day, Midwestern and
River City signed an informal settlement agreement
with the NLRB regarding the unfair labor practices charges
stemming from the June 2, 1997, meeting between Local
836/100 and the drivers.
The strike commenced as planned, with 26 employees
picketing and carrying signs declaring “On Strike, Unfair
Nos. 02-2209 & 02-2566 7
Labor Practices.” Local 215 also filed additional charges
with the Board, alleging unfair labor practices surround-
ing Ware’s statements and letters to the drivers in De-
cember 1997. Midwestern and River City then met with
Smith, DiMatteo, and a federal mediator to discuss settle-
ment of the charges, but were unable to reach an agree-
ment. Shortly after this, Midwestern and River City signed
another agreement with the NLRB remedying the unfair
labor practices of both June and November-December 1997,
although Local 215 was not a party to the agreement. The
Board’s Regional Director approved the settlement, which
contained a reservation of evidence provision permitting
relitigation of pre-settlement unfair labor practices for
the purpose of providing background evidence to deter-
mine whether Midwestern committed other unfair labor
practices.
The drivers remained on strike until March 27, when
Local 215 made an unconditional offer to return to work
on behalf of the drivers. But Midwestern rejected the offer
by declaring the strike an economic strike and refusing
to reinstate the striking drivers, which prompted Local
215 to file the unfair labor practices charges giving rise
to these appeals. After an investigation, the Board’s Gen-
eral Counsel issued a complaint alleging that Midwest-
ern violated the NLRA by assisting and supporting Lo-
cal 836/100 and recognizing it as a bargaining represen-
tative in the absence of uncoerced support of a majority
of employees; using threats of discharge or discipline to
coerce its employees to designate Local 836/100 as their
bargaining representative and to not engage in a pro-
tected strike; and failing to reinstate the striking employ-
ees immediately upon their unconditional offer to return
to work.
At the hearing before the administrative law judge
(“ALJ”), the Board sought to demonstrate that the drivers
were motivated to strike by the unfair labor practices
8 Nos. 02-2209 & 02-2566
that had occurred during and after the June 1997 meeting
between former Local 836 and the drivers, and by
Teegarden’s and Ware’s later threats of termination or
discipline. Drivers Fickas, Means, Chris Webster, and
Robert Linendoll all testified that at the June meeting
with Kinman, Teegarden told them they would lose their
jobs if they did not sign the union authorization cards. The
ALJ credited the testimony of each driver, although she
assigned little weight to that of Means and Linendoll
because neither could recall specific details of the meet-
ing. Teegarden also testified. He admitted taking atten-
dance at the meeting, and testified that after taking
attendance he left the meeting for 45 minutes to allow
Kinman to speak, and that he returned only when one
of the drivers asked him to answer a question regarding
what would happen if the employees refused to sign the
union authorization cards. When queried about his an-
swer, Teegarden asserted that he did not tell the employ-
ees they would lose their jobs, but rather only that by
signing the cards they were voting to join the union, “or
something to that effect,” and that they could not lose
their jobs because “Indiana is not a right-to-work state.”1
The ALJ did not fully believe Teegarden, however, because
to her he seemed unsure of his testimony, and was un-
able after three attempts to enunciate “Indiana is not a
right-to-work state,” even with coaching by counsel. Ware
also testified as to his negotiations with Kinman before
the meeting. Ware first stated that he reduced the ad-
dendum to the Local 836-Midwestern contract to writing
1
Right-to-work laws prohibit labor-management agreements
from requiring union membership as a condition of employment.
E.g., Retail Clerks Int’l Ass’n Local 1625, AFL-CIO v.
Schermerhorn, 373 U.S. 746 (1963). Indiana repealed its right-to-
work statute in 1965. See Fort Wayne Educ. Ass’n, Inc. v. Goetz,
443 N.E.2d 364, 371 (Ind. App. Ct. 1982).
Nos. 02-2209 & 02-2566 9
on the day of the meeting. Later, under examination by
Midwestern’s counsel, he testified that he negotiated the
addendum with Local 836 only after Kinman faxed him
the signed authorization cards. The ALJ credited Ware’s
first version of events over his second. Based on this tes-
timony, the ALJ found that Midwestern had unlawfully
assisted Local 836/100 in violation of 29 U.S.C. §§ 158(a)(2)
and (a)(3) by negotiating with and recognizing it with-
out any indicia of uncoerced majority support by the
drivers, and by threatening the drivers with loss of their
jobs if they refused to sign the union authorization cards.
On the charge that the company violated the NLRA by
threatening to enforce the no-strike clause after Local
836/100 had disclaimed representation, Midwestern did
not seriously dispute the NLRB’s version of events, but
argued instead that Ware had held an honest belief that
the addendum constituted a valid contract between Mid-
western and Local 836/100. The ALJ concluded that
Ware had no legitimate basis to hold that view, however,
finding that by the time he had expressed his belief that
the agreement had been “transferred” to Local 215, he
was aware that a majority of Midwestern’s Boonville,
Rockport, and Owensboro drivers had selected Local 215
as their bargaining representative, so that the basis for
collective bargaining with Local 836/100, the recognition
of the drivers’ representative, was absent. The ALJ also
found that Midwestern’s agreement with Local 836/100
was in any event a nullity because Midwestern had ne-
gotiated and entered into it without first attempting
to determine that its actions had uncoerced majority
support. As a consequence, the ALJ concluded that the
threats of termination or discipline at the meetings be-
tween the drivers and Teegarden and Ware and in Ware’s
December letters were attempts to interfere with, restrain,
or coerce the drivers in the exercise of their right to
choose a bargaining representative, in violation of 29 U.S.C.
§ 158(a)(1).
10 Nos. 02-2209 & 02-2566
Having concluded that Midwestern committed unfair
labor practices in June and November-December 1997, the
ALJ then found that the NLRA violations contributed to
the drivers’ decision to strike. The ALJ identified as
evidence of the employees’ motivation the timing of the
violations; the discussions of the drivers at the January
13, 1998, meeting at Local 215; the picket signs declaring
that the strike was in protest of unfair labor practices;
Midwestern’s refusal to recognize Local 215; and Ware’s
threats to enforce the no-strike clause in the discredited
Local 836/100 addendum. Although she recognized that
frustration with the slow pace of negotiations between
Midwestern and Local 215 likely played a part in the
drivers’ decision to strike, the ALJ nonetheless character-
ized the drivers’ frustration not as discontent with lack
of economic resolution, but as frustration with Midwest-
ern’s refusal to resolve unfair labor practices. In sum, the
ALJ concluded that the strike was an unfair labor prac-
tices strike, and ordered the strikers immediately rein-
stated with back pay. A three-member panel of the Board
affirmed the order with minor modifications. Midwestern
Personnel Serv’s, Inc., 331 N.L.R.B. No. 50 (June 21, 2000).
II.
Now, almost two years later, the Board petitions for
enforcement of its order directing reinstatement of the
drivers with back pay, and Midwestern cross-petitions
for review. Because there is no limitation governing the
timeliness of petitions for enforcement or review of
NLRB orders apart from the equitable doctrine of laches,
and because the parties do not contend that these peti-
tions should be barred by laches, our jurisdiction is secure.
Seafarers Int’l Union of North America, Atlantic, Gulf,
Lakes, & Inland Waters Dist., AFL-CIO v. NLRB, 895 F.2d
385, 386-87 (7th Cir. 1990). We must enforce the Board’s
Nos. 02-2209 & 02-2566 11
order if its factual findings are supported by substantial
evidence in the record as a whole and its legal conclu-
sions have a reasonable basis in law. 29 U.S.C. § 160(e);
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).
“Substantial evidence” means relevant evidence that a
reasonable mind might accept as adequate to support
the Board’s conclusions. Multi-Ad Serv’s, Inc. v. NLRB, 255
F.3d 363, 370 (7th Cir. 2001). We may not set aside
the Board’s conclusions simply because we might justi-
fiably reach different conclusions had we considered the
matters de novo. NLRB v. United Ins. Co. of Am., 390 U.S.
254, 260 (1968). Thus, we defer to the ALJ’s findings
concerning witness credibility, and we will not disturb
those findings absent extraordinary circumstances such
as evidence of clear bias, utter disregard of sworn testi-
mony, or crediting of testimony that is incredible on its
face. Multi-Ad, 255 F.3d at 370. Where two versions of
the same incident materially conflict, the ALJ’s credibility
determinations are entitled to deference. Id.; see also
NLRB v. Link-Belt Co., 311 U.S. 584, 596-97 (1941) (a
court of appeals lacks the authority to substitute its judg-
ment for the Board’s judgment based on disputed facts).
Whether a strike is characterized as an unfair labor
practices strike (a strike caused or prolonged in part by
an employer’s unfair labor practices) or as an economic
strike (a strike precipitated by the inability of labor
and management to reach an agreement over wages, hours,
or working conditions) is vital insofar as the remedies
under the NLRA are concerned. Under Sections 8(a)(3)
and (a)(2) of the NLRA, 29 U.S.C. §§ 158(a)(3), (a)(1), unfair
labor practices strikers are entitled to immediate rein-
statement with back pay once they unconditionally offer
to return to work, whereas economic strikers may be
permanently replaced. NLRB v. Int’l Van Lines, 409 U.S.
48, 50-51 (1972); Mastro Plastics Corp. v. NLRB, 350 U.S.
270, 278 (1956); Northern Wire Corp. v. NLRB, 887 F.2d
12 Nos. 02-2209 & 02-2566
1313, 1319 (7th Cir. 1989). An unfair labor practices
strike does not lose its character as such if economic
motives contribute to its cause, however; it remains an
unfair labor practices strike so long as the employees
are motivated in part by unfair labor practices. Lapham-
Hickey Steel Corp. v. NLRB, 904 F.2d 1180, 1187 (7th
Cir. 1990); Northern Wire, 887 F.2d at 1319; Citizens Publ’g
& Printing Co. v. NLRB, 263 F.3d 224, 235 (3d Cir. 2001);
Dorsey Trailers, Inc. v. NLRB, 233 F.3d 831, 839 (4th
Cir. 2000). The character of the strike at issue here turns
on whether Midwestern unlawfully assisted Local 836/100
by engaging in collective bargaining with and recognizing
the union without first ascertaining whether an uncoerced
majority of the employees had freely selected it as their
bargaining representative, and by threatening employ-
ees with termination, discipline, or legal action under the
purported authority of the now-discredited collective
bargaining agreement between Midwestern and Local
836/100. We have little difficulty sustaining the Board’s
conclusions.
Cooperation between employers and labor unions is
both permissible and encouraged by the NLRA. But it is
an unfair labor practice when cooperation crosses the
line into domination or interference with the formation or
administration of a union, or contribution of financial
or other support to a union, with the effect of interfering
with the employees’ organizational rights guaranteed
by Section 7 of the NLRA, 29 U.S.C. § 157. 29 U.S.C.
§ 158(a)(2); Electromation, Inc. v. NLRB, 35 F.3d 1148,
1161-62 (7th Cir. 1994); Farmers Energy Corp. v. NLRB,
730 F.2d 1098, 1102 (7th Cir. 1984). Whether an employ-
er actually intended to interfere with the employees’
selection of a bargaining representative, or whether em-
ployees actually felt coerced by their employer’s actions
does not matter—the gravamen of the violation is whether
the employer’s assistance reasonably tends to coerce the
Nos. 02-2209 & 02-2566 13
employees in the exercise of their organizational rights.
Link-Belt, 311 U.S. at 588; NLRB v. Joy Recovery Tech.
Corp., 134 F.3d 1307, 1313 (7th Cir. 1998); Farmers Energy,
730 F.2d at 1102. In determining whether management-
labor cooperation has crossed over from permissible co-
operation to unlawful coercion, courts consider a confluence
of factors, with no one factor being dispositive. This non-
exclusive list of factors includes whether the employer
solicited contact with the union; the rank and position
of the company’s solicitor; whether the employer silently
acquiesced in the union’s drive for membership; whether
the employer shepherded its employees to meetings with
a prospective union; whether management was present
at meetings between its employees and a prospective
union; whether the signing of union authorization cards
was coerced; and whether the employer quickly recog-
nized the assisted union after the employees signed au-
thorization cards yet exhibited prejudice against another
union selected by the employees. See, e.g., Int’l Assoc. of
Machinists, Tool & Die Makers Lodge No. 35 v. NLRB,
311 U.S. 72, 78-79 (1940); Farmers Energy, 730 F.2d
at 1102; NLRB v. Vernitron Elec. Components, Inc., 548
F.2d 24, 26 (1st Cir. 1977); Amalgamated Local Union
355 v. NLRB, 481 F.2d 996 (2d Cir. 1973).
Here, the Board found that Midwestern’s President,
Samuel Ware, personally solicited Local 836/100 and
entered into collective bargaining with it before any
effort had been made to determine whether a majority
of the drivers would have selected Local 836/100 as their
bargaining representative. A high-ranking manager,
James Teegarden, attended the meeting between Local
836/100 and the drivers. Although Teegarden was not
present in the room at all times during the meeting,
Teegarden took attendance, introduced the prospective
union representative to the drivers, made himself avail-
able to answer questions that should have been within
14 Nos. 02-2209 & 02-2566
the union representative’s ken, and suggested to the driv-
ers that they would lose their jobs if they did not sign
the authorization cards. This constitutes substantial
evidence that the company was the impetus behind the
recognition of Local 836/100. Any agreement between
Midwestern and Local 836/100 concerning Midwestern’s
Indiana drivers was not a product of true collective bar-
gaining and thus was not enforceable. See Int’l Ladies’
Garment Workers’ Union, AFL-CIO v. NLRB, 366 U.S. 731,
737 (1961). And because the agreement with Local 836/100
was unenforceable, threatening the drivers with termina-
tion or discipline under its no-strike clause was an at-
tempt to interfere with, restrain, or coerce the employees
in the exercise of their freedom to choose Local 215 as
their bargaining representative, in violation of 29 U.S.C.
§ 158(a)(1). See J.C. Penney Co., Inc. v. NLRB, 123 F.3d
988, 993-94 (7th Cir. 1998); Northern Wire, 887 F.2d
at 1317.
Midwestern argues, however, that the Board’s findings
cannot stand because they were based solely on “self-
serving” testimony or misrepresentations provided by
employees and union officials. The Board’s witnesses
were self-interested—substantial back pay is at stake—but
it cannot be said that Midwestern’s management had
no interest in the outcome. We thus understand Midwest-
ern’s argument to be an attack on the ALJ’s decision
to credit the testimony of the drivers over that of Ware
and Teegarden. Normally we defer to the Board’s credibil-
ity determinations unless there is some extraordinary
reason why we should ignore them, for instance if those
findings are inherently incredible or patently unreason-
able. See Beverly California Corp. v. NLRB, 253 F.3d 291,
294 (7th Cir. 2001); Multi-Ad, 255 F.3d at 370; Joy Recov-
ery, 134 F.3d at 1312; NLRB v. Gold Standard Enters., Inc.,
607 F.2d 1208, 1211 (7th Cir. 1979). The ALJ credited the
testimony of the employees because she found that their
Nos. 02-2209 & 02-2566 15
testimony was largely consistent. In contrast, she did not
fully credit Teegarden because he appeared coached and
unsure of his testimony, and she did not credit all of
Ware’s testimony because he gave conflicting accounts of
when he drafted the contract between Midwestern and
Local 836/100, a key factor in determining whether true
collective bargaining between Midwestern and Local
836/100 had occurred. We see no extraordinary circum-
stances warranting that we disregard the ALJ’s credibility
findings.
The existence of prior unfair labor practices does not
mean that a subsequent strike is an unfair labor practices
strike, however; a causal connection must be proved. NLRB
v. Colonial Haven Nursing Home, Inc., 542 F.2d 691 (7th
Cir. 1976); Ryan Iron Works, Inc. v. NLRB, 257 F.3d 1, 8
(1st Cir. 2001); California Acrylic Indus., Inc. v. NLRB,
150 F.3d 1095, 1101 (9th Cir. 1998); Pirelli Cable Corp. v.
NLRB, 141 F.3d 503, 517 (4th Cir. 1998); Allied Mech.
Serv’s, Inc. v. NLRB, 113 F.3d 623, 626 (3d Cir. 1997);
Capitol Steel & Iron Co. v. NLRB, 89 F.3d 692, 698 (10th
Cir. 1996); Road Sprinkler Fitters Local Union No. 669 v.
NLRB, 681 F.2d 11, 20 (D.C. Cir. 1982). Midwestern
contends that no causal connection is present here, first
stressing that collective bargaining between it and Local
215 was at impasse shortly before the strike ensued, and
that the breakdown in bargaining over questions of wages
and pensions and the like was thus the real basis for the
strike. But Midwestern ignores its knowledge (through
Ware and Teegarden) that in November and December
1997 the drivers were contemplating a strike over Mid-
western’s hasty recognition of Local 836/100 and refusal
to recognize Local 215, which by that time had also in-
formed Midwestern by letter that it represented a ma-
jority of the drivers. Also, Midwestern does not seriously
dispute the testimony by drivers Chris Means and Gerald
Fickas that on January 13, at the meeting where the
16 Nos. 02-2209 & 02-2566
drivers voted to strike, they and other drivers had com-
plained to Local 215 about Teegarden and Ware’s threats
of termination and discipline if the drivers decided to
strike for having “a local out of Ohio shoved down their
throat.” See Citizens Publ’g & Printing, 263 F.3d at 235;
Calex Corp. v. NLRB, 144 F.3d 904, 911 (6th Cir. 1998).
And that the strike did not ensue immediately after the
vote does not lessen its causal impact—the drivers held
off on initiating the strike at the suggestion of the union,
which wanted one more opportunity to persuade Mid-
western to recognize it as the drivers’ bargaining represen-
tative.
Midwestern next contends that the strike could not
have been caused by the prior unfair labor practices
because the two prior unfair labor practices were “dead
issues” by the time the strike ensued. Midwestern bases
its argument on the facts that well before the strike
Local 836/100 had disclaimed its interest in the drivers
and that Midwestern and River City had reached an
informal settlement with the NLRB of all pending unfair
labor practices charges. As the Board points out, however,
neither of these events prompted Midwestern to rec-
ognize Local 215 as the drivers’ bargaining representa-
tive. Indeed, Midwestern continued to assert the validity
of the agreement with Local 836/100 right up to the time
when the drivers voted to strike.
Finally, Midwestern argues that all of the evidence
upon which the Board based its finding that the strike
was based on unfair labor practices was entirely self-
serving and hence unreliable. For support, Midwestern
relies on our decision in Colonial Haven Nursing Home
and the Fourth Circuit’s decision in Pirelli Cable. In Colo-
nial Haven, we concluded that many of the unfair labor
practices cited by the striking employees as their motiva-
tion to strike had occurred after they voted to strike, and
that the violations that occurred prior to the decision to
Nos. 02-2209 & 02-2566 17
strike were remote in time and relatively minor. 542 F.2d
at 705. In this case, however, all of the unfair labor prac-
tices occurred prior to the decision to strike and were not
relatively minor. See Northern Wire, 887 F.2d at 1321 n.3.
And although the prior unfair labor practices in this case
might be fairly remote in time, they were by no means
“dead issues.” The unlawful assistance immediately fos-
tered discontent, which led to Local 215’s organizing ef-
forts and its October request for recognition, as well
as the November and December meetings in which the
drivers were threatened with termination or discipline. The
basis of Midwestern’s threats—its view that the Local
836/100 agreement had transferred to Local 215—played
a large part in its refusal to recognize Local 215 and its
declaration of impasse. In short, there is a patent causal
connection present in this case that Colonial Nursing
lacked.
Pirelli Cable is equally distinguishable. There, the
employees initiated a strike after the company demanded
economic concessions. The evidence that the strike was
motivated partly by unfair labor practices was provided
solely by three union officials, whose testimony strongly
suggested that the unfair labor practices charges were
an attempt to shield the union’s members from the con-
sequences of engaging in a economic strike. Moreover,
the Board lacked evidence of the actual sentiment of the
employees, and the claimed unfair labor practice was
weak (indeed, the court of appeals concluded that no
violation had occurred). 141 F.3d at 517-18. In con-
trast, there was credible evidence before the Board in
this case of the employees’ sentiment. There was also
evidence that the drivers’ decision to strike was not
made only after talks between the union and the com-
pany broke down. And unlike Pirelli Cable, the prior
unfair labor practices committed by Midwestern were
substantial.
18 Nos. 02-2209 & 02-2566
III.
For these reasons we conclude that substantial evi-
dence in the record as a whole supports the Board’s con-
clusions that the strike was an unfair labor practices
strike. Because an employer’s refusal to reinstate unfair
labor practices strikers upon their unconditional offer to
return to work is itself an unfair labor practice in viola-
tion of Sections 8(a)(3) and (a)(1) of the NLRA, 29 U.S.C.
§§ 158(a)(3), (a)(1), see Lapham-Hickey Steel, 904 F.2d
at 1187; Northern Wire, 887 F.2d at 1319, we ENFORCE the
order of the Board directing Midwestern to reinstate
the striking drivers with back pay, and DENY Midwest-
ern’s petition for review.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-11-03