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Hanson Cold Storage Company of Indiana v. National Labor Relations Board

United States Court of Appeals, Seventh Circuit

June 20, 2017

Hanson Cold Storage Company of Indiana d/b/a HansonLogistics, Petitioner/Cross-Respondent,
v.
National Labor Relations Board, Respondent/Cross-Petitioner.

          Argued March 28, 2017

         On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board. No. 13-CA-178619.

          Before Flaum, Kanne, and Hamilton, Circuit Judges.

          Kanne, Circuit Judge.

         Thirty-seven employees of an Indiana employer voted in a union-representation election. The employer and the union disputed two of the votes, a sufficient number to affect the outcome of the election. The employer argued that one vote should not count, claiming that the voter's intent could not be discerned from the ballot; the union argued that another vote should not count, claiming that the voter was not employed by the employer at the time of the vote. The National Labor Relations Board rejected the employer's argument and counted the first disputed vote as a vote in favor of representation. The Board then concluded that the second disputed vote was no longer outcome determinative of the election. So it dismissed that dispute as moot and certified the union.

         The parties now contest the Board's counting of the first disputed vote, a dispute that turns on the intent of a voter who produced a hopelessly unclear ballot. Because we find it impossible to divine the voter's intent from the face of the ballot, we hold that the Board abused its discretion by counting that vote. We further hold that the Board erred by dismissing as moot the union's challenge to the second disputed vote.

         I. Background

         Hanson Logistics is one of the leading providers of public-refrigerated warehousing and transportation services in the Midwest. It employs dozens of workers at its facilities in Michigan and Indiana. On February 4, 2016, the International Brotherhood of Teamsters Union Local No. 142 filed a petition to be the exclusive collective-bargaining representative for a subset of Hanson's employees. (App. 5.)[1] Specifically, Local 142 sought to represent Hanson's "full-time and regu- lar part-time warehousemen, dockworkers, pickers, runners, team leads, inventory workers and maintenance workers employed by [Hanson] at its facility currently located at 2201 North wind Parkway, Hobart, Indiana 46342." (App. 6 at 2.)[2]Pursuant to a stipulated election agreement between Hanson and Local 142, on February 29, 2016, the Board conducted an election at Hanson's Hobart facility to determine whether Local 142 would represent those employees. The notice of election stated that "[a] majority of the valid ballots cast will determine the results of the election." (App. 6 at 1.) The ballot instructed each voting employee to "mark an 'X' in the square of your choice." (App. 6 at 2.)

         Thirty-seven employees each cast a ballot in the election. Hanson and Local 142 did not dispute thirty-five of those ballots, eighteen cast in favor of Local 142's representation and seventeen cast against it. Instead, the parties disputed the validity of the two other ballots. Hanson contested a vote cast by an unknown voter ("Unknown Voter Ballot"), arguing that the unknown voter's intent was unclear from the markings on the ballot. And Local 142 contested a vote cast by a voter named Lawrence Kelly ("Lawrence Kelly Ballot"), arguing that Kelly was not a Hanson employee at the time of the vote. Because the two disputed votes were outcome determinative of the election, the Board's Field Examiner ordered Hanson and Local 142 to submit offers of proof, including relevant legal authority, as to the votes' validity.

         Both parties complied with the Field Examiner's order, and the Board's Acting Regional Director-Daniel Nelson- considered the parties' challenges. On March 25, 2016, Nelson issued a decision overruling Hanson's challenge to the Unknown Voter Ballot. In so doing, Nelson counted the Unknown Voter Ballot as a vote in favor of Local 142's representation, increasing the vote count from 18-17 to 19-17 in favor of Local 142's representation. Because Local 142's challenge to the Lawrence Kelly Ballot was no longer outcome determinative, Nelson dismissed that challenge as moot. He then certified Local 142 as the exclusive collective-bargaining representative of the aforementioned subset of Hanson's employees. Hanson filed a request for review with the Board. But on May 26, 2016, the Board summarily denied that request, finding that Hanson raised "no substantial issues warranting review." (App. 4.)

         Nearly two weeks later, on June 6, 2016, Local 142 sent a letter to Hanson requesting recognition of Local 142 as the exclusive collective-bargaining representative of the applicable subset of Hanson's employees. Hanson responded in a letter that it would "not recognize Local No. 142 as the representative of any of its employees" because it "believe[d] that the Region incorrectly decided the challenged ballots from the February 29, 2016 election." (App. 15.) Three days later, on June 20, 2016, Hanson filed a charge with the Board alleging that Hanson "ha[d] failed to bargain in good faith with the Union." (App. 16.)

         On July 12, 2016, the Regional Director issued a complaint against Hanson, alleging that Hanson had violated section 8(a)(1) and (5) of the National Labor Relations Act- 29 U.S.C. § 158(a)(1), (5)-by refusing to recognize and bar- gain with Local 142. Hanson responded to the complaint by again denying that Local 142 was the exclusive collective-bargaining representative. Counsel for the Board then filed a motion to transfer proceedings to the Board and a motion for summary judgment. On September 13, 2016, the Board issued an order affirming Nelson's certification of Local 142 as the exclusive collective-bargaining representative and holding that Hanson's refusal to bargain with Local 142 constituted an unfair labor practice. Hanson then filed a petition for review of the Board's decision in this court, and the Board filed a cross-application for enforcement of its order.

         II. Analysis

         We begin with a note on our jurisdiction. An employer's path to judicial review of a Board's decision upholding an election and certifying a union is "circuitous." N.L.R.B. v. Serv. Am. Corp.,841 F.2d 191, 193 n.3 (7th Cir. 1988). Because Board-certification decisions are not immediately-appealable orders, an employer can obtain judicial review of them only "in conjunction with an unfair labor practice order by the Board, " which is immediately appealable. Heartland Human Sews. v. N.L.R.B.,746 F.3d 802, 805 (7th Cir. 2014). Thus, an employer who wants judicial review of a Board's certification decision must first affirmatively refuse to bargain with the Board-certified union, "thereby exposing itself to an unfair labor practice charge"; then wait for the union to file that charge with the Board; and then wait for the Board to hold that the employer committed an unfair labor practice by ...


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