National Labor Relations Board v. E.A. Sween Co. ( 2011 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3639
N ATIONAL L ABOR R ELATIONS B OARD ,
Petitioner,
v.
E.A. S WEEN C OMPANY,
Respondent.
On Application for Enforcement of an
Order of the National Labor Relations Board.
No. 13-CA-45563
A RGUED A PRIL 15, 2011—D ECIDED M AY 16, 2011
Before P OSNER and M ANION, Circuit Judges, and
L EFKOW, District Judge.Œ
L EFKOW, District Judge. The National Labor Relations
Board seeks to enforce its order halting E.A. Sween Com-
pany’s refusal to bargain with Teamsters Local Union
No. 754 after it had been certified as the exclusive collec-
Œ
The Honorable Joan Humphrey Lefkow of the Northern
District of Illinois, sitting by designation.
2 No. 10-3639
tive bargaining representative of E.A. Sween’s truck
drivers. E.A. Sween argues that the court should deny
the application because the election was invalid. This
court has jurisdiction to review the Board’s application
for enforcement pursuant to 29 U.S.C. § 160(e). We grant
the Board’s application.
I.
E.A. Sween distributes food, primarily to 7-Eleven
stores in the Chicago area. The Union petitioned the
Board to conduct a representation election for the com-
pany’s truck drivers, and an election was scheduled for
August 29, 2008. On the evening of August 28, before
the drivers left for their evening shifts, the Union dis-
tributed to the drivers a one-page flyer bearing the letter-
head of “Teamsters Local 754” in large type along with
the Union’s logo. The first paragraphs stated:
TO ALL E.A. SWEEN DRIVERS:
’THE U.S. SUPREME [sic] HAS HELD THAT ALL
EXITING [sic] TERMS AND CONDITIONS OF EM-
PLOYMENT BY LAW MUST REMAIN THE SAME
UNTIL AND DURING CONTRACT NEGOTIA-
TIONS OR APPROVED BY EMPLOYEES.’
THAT STATEMENT MEANS THAT IF YOU ARE
DUE A SCHEDULED RAISE AT ANY TIME DURING
THE CONTRACT NEGOTIATION PERIOD, BY LAW
THE COMPANY MUST GIVE YOU THAT RAISE.
IT IS UNLAWFUL FOR ANY COMPANY MANAGER,
SUPERVISOR, OR HR REPRESENTATIVE TO TELL
No. 10-3639 3
AN EMPLOYEE THAT DUE TO UNION ACTIVITY
THAT EMPLOYEE WILL NOT RECEIVE THEIR [sic]
RAISE.
After several more sentences touting the benefits the
Union would confer, the flyer provided contact informa-
tion should any employee be subjected to violation of
the rule it described. Of the approximately thirty-eight
eligible employees, twenty-seven voted for the Union, six
voted against, and one ballot was challenged (thus not
material to the outcome).
E.A. Sween filed an objection with the Board. It con-
tended that the flyer “used forged and misrepresented
documents and quotes” that were falsely attributed to
the Supreme Court. According to the company, these
quotes were presented in such a manner that employees
would not have been able to recognize them as union
propaganda. E.A. Sween also argued that it had insuffi-
cient time to rebut the false information. It contended
that the flyer improperly influenced the employees to
vote for the Union. At a hearing, E.A. Sween presented
its human resources and operations managers who
testified that employees had been particularly focused
on whether they would receive a wage increase be-
cause their last collective bargaining agreement, negoti-
ated by the Union, had resulted in a three-year wage
freeze. The human resources manager testified that
“at least 19 employees” had stated within days of the
election that they intended to vote against the Union,
and a number of employees had asked questions about
the flyer.
4 No. 10-3639
The hearing officer found that the flyer, although it
contained a misrepresentation of the law, did not inter-
fere with the employees’ ability to make a free choice
and recommended that the Board certify the Union. She
found that E.A. Sween’s evidence was insufficient to
establish that the document was a forgery “as it was
clearly issued by the Union and there is no evidence
that the Union attempted to deceive employees into
believing that the flyer was issued by the government.”
She discounted as “unsubstantiated hearsay” the testi-
mony of managers about employees’ plans to vote
against the Union, stating that it was not entitled to
dispositive weight.
E.A. Sween filed exceptions. On August 17, 2009, the
two sitting members of the Board adopted the hearing
officer’s report and certified the Union as the exclu-
sive bargaining representative of E.A. Sween’s drivers.
Still, E.A. Sween refused to bargain. On October 7, 2009,
the Union filed an unfair labor practice charge, claiming
violation of sections 8(a)(1) and (5) of the National
Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(1) and (5).
The Board’s general counsel issued a complaint, and on
December 24, 2009 the two sitting members of the
Board issued a decision concluding that the election was
valid and that E.A. Sween had engaged in unfair labor
practices by refusing to bargain. It issued a plenary order
directing the company to bargain.
The Board filed an application for enforcement in this
court (NLRB v. E.A. Sween Co., No. 10-1075). We remanded
after New Process Steel, L.P. v. NLRB, ___ U.S. ___, 130
No. 10-3639 5
S. Ct. 2635, 177 L. Ed. 2d 162 (2010), for further pro-
ceedings before a three-member panel of the Board. On
November 9, 2010, the Board, by a three-member panel,
issued a decision finding that the company’s refusal to
bargain violated sections 8(a)(1) and (5). The Board
did not address the validity of the election, noting
that no new evidence or special circumstances would
require the Board to reexamine the decision made in the
first proceeding. Again, the Board ordered the company
to bargain with the Union. E.A. Sween persisting in
its refusal to bargain, the Board filed this application for
enforcement.
II.
We may review the Board’s certification decision once
the Board has determined that an unfair labor practice
has occurred. See 29 U.S.C. § 159(d); Boire v. Greyhound
Corp., 376 U.S. 473, 476-79, 84 S. Ct. 894, 11 L. Ed. 2d
849 (1964); NLRB v. AmeriCold Logistics, Inc., 214 F.3d
935, 937 (7th Cir. 2000). We defer to the Board’s findings
of fact if they are supported by substantial evidence and
to its legal conclusions if they have a “reasonable basis
in law.” SCA Tissue N. Amer. LLC v. NLRB, 371 F.3d
983, 987-88 (7th Cir. 2004); NLRB v. City Wide Insulation
of Madison, Inc., 370 F.3d 654, 657 (7th Cir. 2004).
The issue is whether the Board was correct in certifying
the election. E.A. Sween argues again that the election
should be set aside because the Union’s campaign flyer
was deceptive and misleading and because the flyer was
a forgery. Under Midland National Life Ins. Co., 263 N.L.R.B.
6 No. 10-3639
127, 133 (1982), the Board will not “probe into the truth
or falsity of the parties’ campaign statements, [or] set
elections aside on the basis of misleading campaign
statements. [It] will, however, intervene in cases where
a party has used forged documents which render the
voters unable to recognize propaganda for what it is.”
The rationale for the rule is that employees are
“ ‘mature individuals who are capable of recognizing
campaign propaganda . . . and discounting it.’ ” Id. at 130
(quoting Shopping Kart Food Market, Inc., 228 N.L.R.B.
1311, 1313 (1977)).
E.A. Sween urges focus on the first sentence: “ ’THE U.S.
SUPREME [sic] HAS HELD THAT ALL EXITING [sic]
TERMS AND CONDITIONS OF EMPLOYMENT BY LAW
MUST REMAIN THE SAME UNTIL AND DURING
CONTRACT NEGOTIATIONS OR APPROVED BY EM-
PLOYEES.’ ” Irrespective of whether it is deceptive or
misleading, the sentence is certainly not a “forgery”—a
counterfeit—of a Supreme Court decision. It is not ex-
plicitly attributed to the Supreme Court; neither does
the quoted portion reflect language or syntax a learned
justice would possibly use.
Failing that, E.A. Sween argues that the first sentence
led employees to believe that the quoted text was the
holding of a Supreme Court case, a deception that
justifies our adopting the Sixth Circuit’s exception to
Midland in circumstances “where no forgery can be
proved, but . . . the misrepresentation is so pervasive
and the deception so artful that employees will be
unable to separate truth from untruth and . . . their right
No. 10-3639 7
to free and fair choice will be affected.” NLRB v. Hub
Plastics, 52 F.3d 608, 612 (6th Cir. 1995) (quoting Van Dorn
Plastic Mach. Co. v. NLRB, 736 F.2d 343, 348 (6th Cir.
1984)). As this court has previously recognized, however,
there is no need to determine the limits of Midland
where the “situation . . . fall[s] squarely in the heartland of
the Midland doctrine—statements regarding a campaign
issue that voters could easily recognize as propaganda.”
Uniroyal Tech. Corp., Royalite Div. v. NLRB, 98 F.3d 993,
1003 & n.29 (7th Cir. 1996) (citing NLRB v. Affiliated Mid-
west Hosp., 789 F.2d 524, 528-29 & n.3 (7th Cir. 1986);
NLRB v. Chicago Marine Containers, 745 F.2d 493, 498-500
(7th Cir. 1984)). Far from artfully deceptive, the first
sentence makes no sense. Apparently the author recog-
nized as much because the second sentence explains the
first with an essentially correct statement of the law:
“THAT STATEMENT MEANS THAT IF YOU ARE
DUE A SCHEDULED RAISE AT ANY TIME DURING
THE CONTRACT NEGOTIATION PERIOD, BY LAW
THE COMPANY MUST GIVE YOU THAT RAISE.” See
Advo System Inc., 297 N.L.R.B. 926, 940 (1990); Arrow
Elastic Corp., 230 N.L.R.B. 110, 113 (1977), enforced, 573
F.2d 702 (1st Cir. 1978). Whether the first sentence is
misleading or simply meaningless, the second sentence
clearly explains what the Union intended to convey.
The findings of the Board that the statement was not
a forgery and, although misleading, did not justify
setting aside the election, is neither without substan-
tial evidentiary basis in the hearing record nor based
on an incorrect statement of the law.
8 No. 10-3639
CONCLUSION
Accordingly, the Board’s application for an order judi-
cially enforcing its entire order is granted.
5-16-11