On Application for Enforcement of an Order of the National Labor Relations Board. No. 13-CA-45563
The opinion of the court was delivered by: Lefkow, District Judge.
Before POSNER and MANION, Circuit Judges, and LEFKOW, District Judge.*fn1
The National Labor Relations Board seeks to enforce its order halting E.A. Sween Company's refusal to bargain with Teamsters Local Union No. 754 after it had been certified as the exclusive collec-tive bargaining representative of E.A. Sween's truck drivers. E.A. Sween argues that the court should deny the application because the election was invalid. This court has jurisdiction to review the Board's application for enforcement pursuant to 29 U.S.C. § 160(e). We grant the Board's application.
E.A. Sween distributes food, primarily to 7-Eleven stores in the Chicago area. The Union petitioned the Board to conduct a representation election for the company's truck drivers, and an election was scheduled for August 29, 2008. On the evening of August 28, before the drivers left for their evening shifts, the Union distributed to the drivers a one-page flyer bearing the letter-head of "Teamsters Local 754" in large type along with the Union's logo. The first paragraphs stated:
TO ALL E.A. SWEEN DRIVERS:
'THE U.S. SUPREME [sic] HAS HELD THAT ALL EXITING [sic] TERMS AND CONDITIONS OF EMPLOYMENT BY LAW MUST REMAIN THE SAME UNTIL AND DURING CONTRACT NEGOTIATIONS OR APPROVED BY EMPLOYEES.'
THAT STATEMENT MEANS THAT IF YOU ARE DUE A SCHEDULED RAISE AT ANY TIME DURING THE CONTRACT NEGOTIATION PERIOD, BY LAW THE COMPANY MUST GIVE YOU THAT RAISE.
IT IS UNLAWFUL FOR ANY COMPANY MANAGER, SUPERVISOR, OR HR REPRESENTATIVE TO TELL AN EMPLOYEE THAT DUE TO UNION ACTIVITY THAT EMPLOYEE WILL NOT RECEIVE THEIR [sic] RAISE.
After several more sentences touting the benefits the Union would confer, the flyer provided contact information should any employee be subjected to violation of the rule it described. Of the approximately thirty-eight eligible employees, twenty-seven voted for the Union, six voted against, and one ballot was challenged (thus not material to the outcome).
E.A. Sween filed an objection with the Board. It contended that the flyer "used forged and misrepresented documents and quotes" that were falsely attributed to the Supreme Court. According to the company, these quotes were presented in such a manner that employees would not have been able to recognize them as union propaganda. E.A. Sween also argued that it had insufficient time to rebut the false information. It contended that the flyer improperly influenced the employees to vote for the Union. At a hearing, E.A. Sween presented its human resources and operations managers who testified that employees had been particularly focused on whether they would receive a wage increase because their last collective bargaining agreement, negotiated by the Union, had resulted in a three-year wage freeze. The human resources manager testified that "at least 19 employees" had stated within days of the election that they intended to vote against the Union, and a number of employees had asked questions about the flyer.
The hearing officer found that the flyer, although it contained a misrepresentation of the law, did not interfere with the employees' ability to make a free choice and recommended that the Board certify the Union. She found that E.A. Sween's evidence was insufficient to establish that the document was a forgery "as it was clearly issued by the Union and there is no evidence that the Union attempted to deceive employees into believing that the flyer was issued by the government." She discounted as "unsubstantiated hearsay" the testimony of managers about employees' plans to vote against the Union, stating that it was not entitled to dispositive weight.
E.A. Sween filed exceptions. On August 17, 2009, the two sitting members of the Board adopted the hearing officer's report and certified the Union as the exclusive bargaining representative of E.A. Sween's drivers. Still, E.A. Sween refused to bargain. On October 7, 2009, the Union filed an unfair labor practice charge, claiming violation of sections 8(a)(1) and (5) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(1) and (5). The Board's general counsel issued a complaint, and on December 24, 2009 the two sitting members of the Board issued a decision concluding that the ...