Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 93 CR 529--George W. Lindberg, Judge.
Before CUDAHY, ESCHBACH and RIPPLE, Circuit Judges.
Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.
K-Mart Corporation seeks review, and the National Labor Relations Board ("NLRB" or "Board") seeks enforcement, of an order directing K-Mart to bargain with Local 705 of the International Brotherhood of Teamsters ("Union"). K-Mart objects to the actions of union officials, who photographed and videotaped the area near the entrance to K-Mart's facility during a union election campaign. The NLRB determined that the photographic activity was benign, and, therefore, that it did not reasonably tend to interfere with employees' free and uncoerced choice. For the reasons that follow, we remand for further proceedings.
On June 1, 1993, Local 705 of the International Brotherhood of Teamsters filed a petition with the NLRB to represent employees at K-Mart Corporation's Manteno, Illinois distribution facility. The proposed bargaining unit contained approximately five hundred members; the ensuing election campaign was the area's largest in the past thirty years. As part of its campaign, the Union positioned a thirteen-foot tall inflated rat near the entrance to K-Mart's facility. The rat was intended to symbolize K-Mart management, which allegedly had spied upon the employees.
The election occurred July 23, 1993. On that day and the days immediately preceding it, union handbillers approached the vehicles of employees who were entering or exiting the distribution center. The handbillers offered the employees pro-union literature. Also at this time, various union officials were photographing and videotaping the area near the entrance to the facility. A photographer for a local newspaper also was present. No employee inquired about the purpose of the Union's photographic activity, nor did the Union explain its purpose to K-Mart employees. The Union won the election, two-hundred nineteen to two-hundred twelve, with four challenged ballots and forty-three abstentions.
K-Mart filed several objections to the Union's conduct. One objection stated that the Union created an atmosphere of fear and coercion by photographing and videotaping the area where handbillers were offering pro-union literature to employees. *fn1 The NLRB Regional Director ordered a hearing on K-Mart's objections. At the hearing, four witnesses testified on behalf of K-Mart. All stated that, on either the night before or the morning of the election, they believed they were photographed or videotaped as they refused to accept union literature. There was also testimony that employees throughout the Distribution Center were discussing the picture-taking. However, none of the witnesses asked the Union why it was taking the pictures. The Union acknowledged that it did not explain the purpose of its picture-taking to any of K-Mart's employees. However, the Union sought to explain its purpose at the hearing. The Union submitted that the photographs and videotape were intended merely to record the election campaign for posterity, not to record the identity of anti-union employees. The official who took the videotape, and one of the officials who took the photographs, testified that they were focusing upon the inflated rat rather than the handbillers.
After hearing the evidence and reviewing the photographs and videotape, the Hearing Officer recommended that K-Mart's objection be overruled. The Hearing Officer reasoned that the explanation the Union offered for the picture-taking was legitimate. He also noted that, although one of the union photographers did not testify, none of his pictures contained bargaining unit employees. The Hearing Officer concluded that the Union's "photographic efforts were of such a benign and innocuous nature as not to reasonably tend to interfere with employees' free and uncoerced choice in the election." Mem. Op. at 5. The Officer did not comment specifically upon the testimony of K-Mart's witnesses, although he did state generally that any testimony which contradicted the Officer's findings was discredited. See id. at 2 n.1. The Board subsequently adopted the Hearing Officer's recommendation and ordered that the Union be certified as the employees' bargaining unit representative. K-Mart refused to ...