NLRB v. Mickey's Linen & Tow ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4121
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
MICKEY’S LINEN AND TOWEL SUPPLY, INC.,
d/b/a DOMESTIC LINEN AND UNIFORM,
Respondent.
____________
On Application for Review of an Order of
the National Labor Relations Board.
No. 33-CA-14877.
____________
SUBMITTED MAY 30, 2006—DECIDED AUGUST 16, 2006
____________
Before POSNER, KANNE, and WOOD, Circuit Judges.
KANNE, Circuit Judge. The National Labor Relations
Board (the “Board”) has applied for enforcement of its
August 23, 2005 order, No. 33-CA-14877 (the “Order”),
issued against Mickey’s Linen and Towel Supply, Inc., d/b/a
Domestic Linen and Uniform (“Mickey’s”). In the Order, the
Board found Mickey’s refusal to bargain with Teamsters
Local 705, a/w International Brotherhood of Teamsters (the
“Union”) to be an unfair trade practice. Mickey’s challenge
of the Board’s certification of the Union is without merit,
and, therefore, we grant the application.
Mickey’s, located in Kankakee, Illinois, sells, rents, and
cleans uniforms and linens. The Union petitioned the Board
to represent a unit of Mickey’s full-time and regular part-
time laundry production and maintenance employees. On
2 No. 05-4121
May 21, 2004, the Board conducted a secret-ballot election
in which the Union prevailed by a margin of 22 to 12.
Mickey’s objected, contending the election was unfair, and
a hearing was set. Despite Mickey’s request that the
hearing be held near Kankakee, the hearing was scheduled
to take place on December 2, 2004, in Peoria, approximately
125 miles from Mickey’s plant (about a two-hour drive).
Mickey’s objections to the election were founded upon
its allegation that a former supervisor named Lynell
Watts made racially inflammatory remarks and coerced
support for unionizing. Mickey’s produced three em-
ployees who voted in the election who testified that Watts
uttered remarks such as “it looks like the blacks against the
whites”; “all black people should stick together”; “the blacks
stick together”; and “[the black voters] had it wrapped up.”
Mickey’s fourth witness, a manager, authenticated (without
his personal knowledge) employees’ written statements to
that effect. Watts testified that he never made the state-
ments, and two of the Union’s witnesses corroborated
Watts’s version of events.
The hearing officer recommended to the Board that
Mickey’s objections be overruled. Mickey’s filed exceptions
to the hearing officer’s findings and recommendations, but
to no avail. The Board adopted the hearing officer’s findings
and certified the Union on March 29, 2005.
“Refusing to bargain is the only way for an employer to
get judicial review of an NLRB decision upholding an
election and certifying a union.” NLRB v. AmeriCold
Logistics, Inc., 214 F.3d 935, 937 (7th Cir. 2000) (citing
NLRB v. Serv. Am. Corp., 841 F.2d 191, 193 n.3 (7th Cir.
1988)). Following the certification: (1) Mickey’s refused the
Union’s request to bargain, (2) the Union filed a charge, (3)
the Board issued a complaint, (4) Mickey’s admitted it
refused to bargain but contested the certification, and (5)
the Board granted summary judgment against Mickey’s
No. 05-4121 3
after finding it violated 29 U.S.C. § 158(a)(1) and (5). “That
labyrinthian chain of events finally brings us to this appeal,
where the real issue is whether the NLRB was right in
finding that the [U]nion won the election fair and square.”
Id.The Board has wide discretion to set rules and procedural
safeguards to protect employees’ freedom to choose bargain-
ing representatives. NLRB v. Precise Castings, 915 F.2d
1160, 1162 (7th Cir. 1990) (citing NLRB v. A.J. Tower Co.,
329 U.S. 324 (1946)). A Board-conducted representation
election is presumptively valid. Uniroyal Tech. Corp. v.
NLRB, 98 F.3d 993, 997 (7th Cir. 1996) (citation omitted).
Our review of the Board’s certification of a collective
bargaining agent after an election is “extremely limited,”
and we will affirm if it is supported by substantial evidence.
NLRB v. Erie Brush & Mfg. Co., 406 F.3d 795, 801 (7th Cir.
2005) (citation omitted); AmeriCold Logistics, 214 F.3d at
937. “Substantial evidence is ‘such relevant evidence as a
reasonable mind might accept as adequate to support the
conclusion of the Board.’ ” SCA Tissue N. Am. LLC v. NLRB,
371 F.3d 983, 988 (7th Cir. 2004) (quoting Huck Store
Fixture Co. v. NLRB, 327 F.3d 528, 533 (7th Cir. 2003)).
“Where the Board adopts the ALJ’s findings of fact and
conclusions of law, it is the ALJ’s determinations that we
review.” Id. (citing Sears, Roebuck & Co. v. NLRB, 349 F.3d
493, 508 (7th Cir. 2003)).
Mickey’s must show “that the unlawful acts occurred
and ‘that those acts interfered with the employees’ exer-
cise of free choice to such an extent that they materially
affected the results of the election.’ ” See NLRB v. Chicago
Tribune Co., 943 F.2d 791, 794 (7th Cir. 1991) (quoting
Serv. Am. Corp., 841 F.2d at 195). Thus, Mickey’s must
demonstrate not only that Watts made the aforemen-
tioned remarks, but also that they caused the Union to
prevail in the election. Because the parties presented
conflicting testimony regarding whether Watts did utter the
4 No. 05-4121
remarks, the hearing officer was required to make a
credibility determination, which is entitled to great defer-
ence and will be upheld absent the most extraordinary
circumstances. See Erie Brush, 406 F.3d at 801 (citations
omitted); NLRB v. Joy Recovery Tech. Corp., 134 F.3d 1307,
1312 (7th Cir. 1998) (“As to credibility determinations when
there are two conflicting versions of the same incident, the
ALJ’s credibility determinations are entitled to deference.
We avoid determining credibility on the basis of a cold
record.”) (quotation omitted).
The hearing officer discredited two of Mickey’s witnesses:
Don Papineau, who testified that Watts said, “it looks like
the Union is the blacks against the whites”; and Denise
Wright, who testified that Watts said “all black people
should stick together.” The hearing officer pointed out that
each of these witnesses gave vague and conflicting answers.
As for Mickey’s third witness, Christine Hardy, the hearing
officer expressed “reservations” about her credibility
but—assuming Watts did make racially inflammatory
statements to her—determined Hardy was not part of the
bargaining unit and did not divulge the communication to
anyone. A fourth witness, John Betenia, testified he lacked
personal knowledge of Watts’s conduct, and the hearing
officer discredited it as hearsay. In the face of Watts’s
testimony to the contrary, which was corroborated by two
witnesses, the hearing officer concluded Mickey’s had not
presented sufficient evidence to prove Watts made any of
the purported statements.
Beyond its erroneous claim that the hearing officer’s
credibility determinations are entitled to no deference,
Mickey’s presents no argument warranting more than
minimal discussion. At most, Mickey’s points to circum-
stances in which the hearing officer could have inferred that
Watts lied; Mickey’s then adds conclusory statements to
suggest contradictions in Watts’s testimony. Suffice it
to say, none of these instances were material to the issue of
No. 05-4121 5
whether Watts made the statements, nor were they suffi-
ciently specific to refute Watts’s testimony.
There may be some doubt as to Watts’s loyalties when he
testified (he had been fired), but that is insufficient to
overturn the hearing officer’s credibility decisions and
his conclusion that Mickey’s failed to prove any objec-
tionable conduct did occur. The hearing officer stated he
made his findings based upon the entire record and his
observation of the witnesses, and he was not required to
itemize the witnesses’ physical characteristics to support
his conclusion. See Bloomington-Normal Seating Co. v.
NLRB, 357 F.3d 692, 695 (7th Cir. 2004). In sum, Mickey’s
does not explain why it would be extraordinary to con-
clude Watts told the truth.1 See id. (noting examples of
extraordinary circumstances include “ ‘clear bias by the
ALJ, utter disregard of uncontroverted sworn testimony, or
acceptance of testimony that on its face is incredible’ ”)
(quoting NLRB v. Gerig’s Dump Trucking, Inc., 137 F.3d
936, 941 (7th Cir. 1998)).
Mickey’s argues holding the December 2 hearing in Peoria
rather than Kankakee deprived it of the opportunity to
produce two additional witnesses, but the issue has not
been preserved for our review. “[A] party waives the right
to appeal an issue to the NLRB if it did not raise the issue
below.” NLRB v. Gen. Teamsters Union Local 662, 368 F.3d
741, 746 (7th Cir. 2004) (citation omitted). Mickey’s points
to its November 10 letter to the NLRB regional office, in
which it asked, “We assume that the hearing will be in
Kankakee, and will begin at 10:00?”
Mickey’s could not have raised the issue to the hearing
officer on November 10 because the hearing’s location had
not been established. And Mickey’s did nothing when the
1
Of course, we need not consider whether the statements, if
made, were indeed of an inflammatory nature.
6 No. 05-4121
notice of hearing was issued on November 18. Mickey’s
attended the hearing, and it was not until after calling
all but one of its witnesses that Mickey’s first complained
about the hearing’s location. Mickey’s rightfully does not
contend such an untimely objection was sufficient to
preserve the issue, and the NLRB rightfully refused to
consider it.
And even if it were properly before us, there is no rea-
son to find an abuse of discretion. Mickey’s alleges that due
to the 125-mile distance, it lacked subpoena power under
Federal Rule of Civil Procedure 45. But Rule 45 sets a 100-
mile limit for subpoenas issued by district courts. Applica-
ble here is 29 U.S.C. § 161(1), which establishes nationwide
subpoena authority for the Board. Had Mickey’s issued
subpoenas compelling these individuals to attend the
hearing, they would have been valid.
The Board’s application is GRANTED, and its Order will be
ENFORCED in full.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-16-06