Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board No. 13-CA-33121
Before HARLINGTON WOOD, JR., CUDAHY, and ROVNER, Circuit Judges.
HARLINGTON WOOD, JR., Circuit Judge.
Cross Pointe Paper Corporation ("Cross Pointe") petitions this court for review of a decision of the National Labor Relations Board ("the Board") certifying the United Paperworkers International Union ("the Union") as the collective bargaining representative of a unit of its employees. Cross Pointe also contests the refusal of the Board's regional director to transmit to the Board the witness statements that she collected during her ex parte investigation into Cross Pointe's election objections. The Board cross-petitions for enforcement of its decision and order. We deny enforcement of the Board's cross-petition to enforce, grant Cross Pointe's petition to set aside certification, and remand for further proceedings.
On September 15, 1993, the Union filed a petition with the Board seeking certification as the bargaining representative of Cross Pointe's production and maintenance employees. On November 4, 1993, a secret-ballot election was conducted by the Board's regional office pursuant to an agreement between the parties. In a close vote, a majority of those voting chose union representation. *fn1
Cross Pointe subsequently filed objections to the election. Cross Pointe alleged that the laboratory conditions necessary for a free and fair election were undone by certain incidents occurring before and during the election, including: (1) the circulation of an ethnically offensive rumor; (2) coercive behavior on the part of certain Cross Pointe supervisors who favored union representation; (3) the loud and public complaining by one employee to the effect that the election was not secret; and (4) the keeping of an improper vote tally during the election by a union observer.
Pursuant to the Board's rules and regulations, the regional director conducted an ex parte investigation of Cross Pointe's objections during which employees and union officials were interviewed. 29 C.F.R. sec. 102.69(d). Based on this investigation, the regional director recommended the overruling of all of Cross Pointe's objections. No hearing was held. Cross Pointe then filed exceptions to the regional director's report with the Board; the regional director refused Cross Pointe's request to transmit to the Board all of the investigatory notes and witness statements that she had amassed during her ex parte investigation. Thereafter, a majority of a panel of the Board adopted the director's recommendations. The Union was subsequently certified as the employees' collective bargaining representative on January 9, 1995.
Cross Pointe has since refused to recognize the Union, admittedly for the purpose of seeking further review of the Board's election determination. In response, the Board's general counsel issued a complaint charging Cross Pointe with violating sections 8(a)(1) and (5) of the National Labor Relations Act (the "Act"), 29 U.S.C. secs. 158(a)(1) & (5). In its defense, Cross Pointe contended that the Union's certification was legally invalid. The general counsel then moved to transfer the case to the Board and for summary judgment. Cross Pointe unsuccessfully repeated its request, on several further occasions, that the regional director transmit the entire record of her investigation to the Board. On May 22, 1995, the Board granted the general counsel's motion for summary judgment. Cross Pointe then filed a petition for review in this court contesting the regional director's refusal to transmit the entire record to the Board and seeking the invalidation of the Union's certification. *fn2 In the alternative, Cross Pointe seeks a hearing before the Board. The Board cross-petitioned for enforcement of its decision and order.
Since Cross Pointe admits that it has refused to bargain and provide relevant information to the Union, we must uphold the Board's conclusion that Cross Pointe is in violation of sections 8(a)(1) and (5) of the Act, 29 U.S.C. secs. 158(a)(1) & (5), unless, as Cross Pointe argues, the Union was improperly certified in the first place. Beloit Corp., Castings Div. v. NLRB, 857 F.2d 1154, 1156 (7th Cir. 1988). Our review in this area is very limited: "We must defer to the Board's reasonable selection of rules and policies to govern the election, and we will uphold the application of those rules if substantial evidence supported the Board's decision." Van Leer Containers, Inc. v. NLRB, 841 F.2d 779, 784 (7th Cir. 1988) (citation omitted).
"Deference, however, does not entail complete abdication of the judicial role." K-Mart Corp. v. NLRB, 62 F.3d 209, 212 (7th Cir. 1995) (citations omitted). For the reasons discussed below, we conclude that Cross Pointe's argument regarding the insufficiency of the record transmitted to the Board is well-founded and we therefore set aside the certification and remand this matter to the Board for additional proceedings. Thus, we need not reach Cross ...