Before Flaum, Chief Judge, and Posner and Rovner, Circuit Judges.
The opinion of the court was delivered by: Flaum, Chief Judge
On Application for Enforcement of an Order of the National Labor Relations Board.
The National Labor Relations Board ("NLRB") seeks the entry of an enforcement order requiring River City Elevator Company, Inc. ("River City") to bargain with the International Union of Elevator Constructors ("the Union"). River City argues that, during the election to determine whether the Union would represent River City employees, it sought to influence the election outcome by promising employees certain benefits.
For the reasons stated below, we deny the Board's application to enforce its order and reverse any finding by the Board that River City committed an unfair labor practice.
In October of 1999, the Union filed a petition with the NLRB seeking certification as the collective bargaining representative of River City's elevator mechanics and helpers. On November 18, 1999, an election was conducted among seven River City employees to determine whether they wished to be represented by the Union. The results of the secret ballot election were very close--with four out of seven employees choosing Union representation.
On November 24, 1999, River City filed objections to the election. According to River City, the Union interfered with election conditions by promising certain benefits to the voting employees. An NLRB hearing officer and subsequently the Board itself denied River City's objections. The Union was then certified as the bargaining representative for River City's employees. Shortly after this certification, the Union sent River City a request to enter into collective bargaining.*fn1 River City refused this request and, as a result, the Union filed an unfair labor practice charge against it for its failure to recognize and negotiate with the Union. Pursuant to the Union's complaint, the General Counsel of the NLRB filed a motion with the Board requesting that River City be compelled to enter into negotiations with the Union. The NLRB granted that motion. This appeal, on application for the enforcement of the order compelling River City to bargain, has ensued.
The allegations contained in River City's objections to the results of the Union election also form the gravamen of its appeal. Specifically, River City contends that, by offering reductions in initiation fees and union dues, as well as by giving River City employees Mechanic's cards (when those employees had not completed the requisite course work and examinations), the Union intended to interfere with the laboratory conditions of the election.*fn2
During the period leading up to the election, representatives of the Union met with River City employees. During these meetings, Union representatives informed the employees that, normally, new members were charged an initiation fee of $440. However, the Union told the employees that, because of the organizing drive, it would reduce the initiation fees that they would be required to pay to $50.*fn3 The Union's offer to reduce initiation fees and dues was made to all employees and was not conditioned uponemployee support for the Union at the ballot box.
Representatives from the Union also offered all of the River City employees Mechanic's cards, even though they had not completed the requisite training programs.*fn4 The National Elevator Industry Educational Program (NEIEP) was established in 1967. Pursuant to collective bargaining entered into between the Union and the National Elevator Industry, the NEIEP prescribes the course of training individuals must undertake in order to qualify as a Mechanic. According to the Union's Standard Agreement, no individual "may qualify or be raised to the Capacity of Mechanic until he has worked for a period of three (3) years in the elevator industry, has successfully completed the required NEIEP courses, and has passed a Mechanic's Examination administered by the NEIEP Director's Office." IUEC Standard Agreement, p. 51. In the period leading up to the election, the Union promised River City employees Mechanic's cards based upon their experience (as determined by Union representatives) regardless of whether they had completed NEIEP requirements.
Because River City refused to enter into collective bargaining with the Union, the issue presented in this appeal is whether the Board acted reasonably in certifying the Union as the employees' representative. If we determine that the Board's action was reasonable, the Board is entitled to the enforcement of its order compelling River City to enter into collective bargaining. See National By-Products, Inc. v. NLRB, 931 F.2d 445, 448 (7th Cir. 1991).
In reviewing the factual findings of the NLRB, we examine them to see if there is substantial evidence in the record as a whole to support the Board's conclusions. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951); Overnite Transp. Co. v. NLRB, 104 F.3d 109, 112 (7th Cir. 1997). When an objecting party disputes the result of a Board supervised election, there is a formidable burden upon the objecting party to prove that it was not valid. NLRB v. Service American Corp., 841 F.2d 191, 195 (7th Cir. 1988). Indeed, the objecting party must demonstrate that misconduct occurred and that such misconduct "damaged the fairness of the election." Clearwater Transport, Inc. v. NLRB, 133 F.3d 1004, 1010 (7th Cir. 1998). When we examine the tactics leading up ...