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Overnite Transportation Co. v. National Labor Relations Board

January 9, 1997









On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board. Case No. 30-CA-13034

Before CUMMINGS, ESCHBACH, and DIANE P. WOOD, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

ARGUED MAY 28, 1996


Partying, the sounds of air-horns, signs, and photography were the backdrop for the election on March 6, 1995, at which the employees of Overnite Transportation Co. decided, by a 41-22 vote, to have Teamsters "General" Local Union No. 200 ("Local 200") represent them. After the National Labor Relations Board certified the union as the exclusive collective bargaining representative for "all full-time and regular part-time dock workers, city drivers, road drivers, yard jockeys and mechanics employed by Overnite," Overnite refused to bargain, claiming that the activities surrounding the election destroyed "laboratory conditions" and deprived the employees of a free choice in the election. The Board rejected those claims and found that Overnite's refusal to bargain violated sections 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. secs. 158(a)(5) and (1). Overnite has petitioned to have the order set aside, and the Board has cross-petitioned for its enforcement. We conclude that the Board's order is supported by substantial evidence in the record and should be enforced.


The Overnite trucking terminal is located on South 13th Street in Milwaukee, Wisconsin. Thirteenth Street is a major thoroughfare, with four traffic lanes and two parking lanes. A strip of grass about 8 to 10 feet wide runs in front of the terminal, separating the curb from the parking lot in front of the building. The terminal building itself is set back some 150 to 200 feet from 13th Street. Trucks enter using the south driveway, and they proceed to the loading dock on the north side of the terminal, from which they then exit using the north driveway.

On the two Thursdays preceding the March 6 election, 7 to 10 pro-union demonstrators campaigned on the grassy area in front of Overnite's terminal. Included in this group were International Union Representative William D. Basham and volunteer organizer Scott Gouthro, an employee of Consolidated Freightways and a member of Local 200. Union organizer Darryl Connell had described the Overnite organizing campaign as "a big happening in the City of Milwaukee," and the union publicized the event with fliers about the election from January until the date of the vote. The campaigners during the pre-election period spoke with employees as they entered and left the premises, gave them literature, carried signs urging a "yes" vote, and took photographs of employees entering and leaving the building.

On election day, the supporters increased in number and in volume. They began assembling on the snow-covered area in front of Overnite at about 6:00 a.m. By 8:30 a.m., the numbers reached about 30 to 35, which was the average throughout the day, although the high point may have been as many as 70 supporters. Some of them carried signs saying "Local 200" and "Vote Yes," and there were 3 to 5 larger plywood signs planted in the snow advising employees to "Vote Yes, Teamsters 200." Supporters shook hands with truck drivers who had their windows down as they entered and left Overnite by the south and north driveways. Some enthusiasts jumped up onto the running boards of the trucks to speak briefly to the drivers.

During the day, both still and video photography took place. Basham and Connell took 26 photographs altogether; nineteen were of union supporters, while others were posed shots with pro-union Overnite employees. Photographs were also taken of the banners and signs at the front of the facility. In addition, Gouthro shot a 35-minute video of the outdoor gathering, at the request of Overnite employee Cecil Koester, one of the union organizers at the company. (Koester was concerned that he would have to miss the events due to his work.) No one told Gouthro whom or what to shoot. The majority of the video is of pro-union employees, union supporters, and Overnite truck drivers. After the election, Gouthro gave Connell a copy of the tape at Connell's request.

Throughout the day, truckers blew their air horns as they passed Overnite. Several union and non-union trucking companies are located near 13th Street, and many of their drivers routinely travel on 13th Street. On election day, the traffic was even heavier, thanks in part to the press coverage of the election and a widely distributed union flyer that said: "RALLY -- We urge all our union brothers and sisters to come out in support of the Overnite workers on election day." The union also telephoned people notifying them of the election and telling them it would appreciate their (undefined) support.

What impact, if any, did this have on the election itself? The activity, as noted, occurred either on the strip between the street and the parking lot, or at the entrances or exits to the terminal facility, and it lasted all day long. The polling hours ran from 8:00 to 10:00 a.m., and again from 8:00 to 10:00 p.m. The voting area was in Overnite's lunchroom, which was located in the lower level of the terminal. Overnite itself describes the room as a 15 foot by 30 foot concrete block room with two small windows located at the top of the north and west walls. At no time did any union supporter come within 150 feet of the polling area, and none of the outside activities was visible from the lunchroom. The air-horn blasts from passing trucks were, however, audible: Operations Manager Scott Simons testified that he heard about 100 blasts throughout the day, the majority of which were during the morning polling session. Peter Kossow, Overnite's election observer, testified that he heard about 10 to 15 blasts during the polling sessions, again with the majority in the morning. No employee testified that he was bothered by outside noise while casting a ballot. As noted above, the final tally of votes showed a wide margin in favor of the union, which won by a vote of 41 to 22, with 5 challenged ballots.


On March 13, 1995, Overnite filed objections to the election. It claimed that the union had "intimidated and harassed voting unit employees, thereby contributing to a general atmosphere of surveillance, coercion, intimidation, and harassment disruptive of laboratory conditions . . . ." A hearing followed on April 7 and 10, 1995. In a report dated May 8, 1995, the hearing officer recommended that the Board overrule Overnite's objections and certify the union as the exclusive bargaining representative. Overnite filed exceptions to her report, but on August 14, 1995, the Board rejected those exceptions and certified the union as the hearing officer had recommended. Shortly thereafter, it rejected Overnite's motion to reconsider its decision. Overnite then refused to bargain, again citing its objections to the conduct of the election, which prompted the union to file the unfair labor practice charges before us now. In an order of November 8, 1995, the Board granted the General Counsel's motion for summary judgment, finding that Overnite offered nothing new or persuasive that would require reexamination of the certification decision, and thus that it had violated secs. 8(a)(5) and (1) ...

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