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National Labor Relations Board v. Browning-Ferris Industries of Louisville Inc.

decided: October 15, 1986.

NATIONAL LABOR RELATIONS BOARD, PETITIONER,
v.
BROWNING-FERRIS INDUSTRIES OF LOUISVILLE, INC., D/B/A INDIANA HOME SANITATION, RESPONDENT



On Application For Enforcement Of An Order Of the National Labor Relations Board

Author: Flaum

Before WOOD, COFFEY, and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

The National Labor Relations Board, pursuant to section 10(e) of the National Labor Relations Act, seeks enforcement of a bargaining order it issued against the respondent company. The Board issued the order after the company refused to bargain collectively with Teamsters Local 783, which had been certified by election as the employees' collective bargaining representative. The company contends that the union's certification was invalid because it allegedly engaged in improper conduct affecting the election. Our review of the Board's proceedings reveals that the Board's decision to overrule the company's objections to the election conduct was based on substantial evidence, and we therefore enforce the Board's order.

I.

Browning-Ferris Industries is engaged in the collection and disposal of solid wastes. The union sought to represent the company's drivers, and on August 10, 1984, the Board conducted an election among the drivers in response to the union's petition. The secret ballots revealed that of eighteen employees, ten voted in favor of the union's representation and eight voted against representation. The company filed objections to the following conduct that it claimed had improperly affected the results of the election:

1. Prior to the election and throughout the organizing campaign, the union improperly induced employees to vote for the union by threatening the physical well-being of employees and their families.

2. Prior to the election and throughout the organizing campaign, the union improperly induced employees to vote for the union by telling them that if they signed an authorization card prior to the election, all or part of the standard union initiation fee would be waived.

3. Immediately prior to the election, the union improperly induced and/or coerced employees in the exercise of their rights guaranteed by Section 7 of the National Labor Relations Act by engaging in misrepresentations of a material nature to which the company did not have an adequate opportunity to respond.

4. During the voting, employees were intimidated by the persistent presence in the voting area of a known union supporter who refused to leave the area.

5. By this and related conduct [participation of a supervisor in the election campaign], the union interfered with the election and the results of the election must be set aside.

The Board's Regional Director conducted an investigation of these objections and issued a report to the Board in September 1984. In his report, the Director concluded that the company's evidence was insufficient to warrant an evidentiary hearing or to invalidate the election, and he recommended to the Board that the company's objections be dismissed. The company then filed exceptions to the Director's report with regard to its first, fourth, and fifth objections, and made no exceptions to the Director's recommendation concerning the second and third objections. In November 1984 the Board adopted the findings and recommendations of the Director, dismissed the company's remaining three objections, and held that a certification of representative should issue. The company's continued refusal to bargain with the union resulted in a complaint in April 1985, and a three-member panel of the Board held that the refusal constituted a violation of sections 8(a)(5) and (1) of the NLRA. The Board then ordered the company to bargain with the union, and this enforcement proceeding followed.

II.

Our review of the Board's decision to certify a collective bargaining representative following an election is "extremely limited" NLRB v. Tom Wood Datsun, Inc., 767 F.2d 350, 352 (7th Cir. 1985); see also, e.g., Mosey Manufacturing Co. v. NLRB, 701 F.2d 610, 614 (7th Cir. 1983) (en banc). We will defer to the Board's selection of rules and policies to govern a particular election so long as those rules are reasonable, Tom Wood Datsun, 767 F.2d at 352, and we will review the application of those rules according to the "substantial evidence" standard. NLRB v. Affiliated Midwest Hospital, Inc., 789 F.2d 524, 527 (7th Cir. 1986); Mosey, 701 F.2d at 615. Since we presume that the Board's decision was fair, the party challenging the decision bears the burden of demonstrating that the decision was not based on substantial evidence. Tom Wood Datsun, 767 F.2d at 352. 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 or misconduct did not 'so impair the integrity of the ballot result that invalidation of the election is necessary.'" Affiliated Midwest Hospital, 789 ...


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