893 F.3d 1037
7th Cir.2018Background
- Local No. 2 petitioned to represent part-time, sporadically-employed stagehands at Jam Productions’ Chicago venues; parties signed a Stipulated Election Agreement setting an eligibility payroll cutoff of October 4, 2015.
- An unfair-labor-practice (ULP) charge concerning Jam’s termination of a Riviera crew leader held the representation petition in abeyance for ~7 months; resolution reinstated the terminated Shaw crew to Jam’s on-call list.
- Election occurred May 16, 2016; Local No. 2 won 22–10, but 21 ballots were challenged (13 contested, all by Jam). Jam alleged the union steered premium, higher‑paying union jobs to members of the recently reinstated Shaw crew in the critical pre-election period.
- Regional Director declined Jam’s request for a hearing on its objection that the union’s referrals were a tangible economic inducement to influence votes, and sustained several ballot challenges based on the agreed eligibility date and work-qualification rules.
- NLRB panel affirmed certification; Jam refused to bargain, Board found an unfair labor practice and ordered bargaining; Jam petitioned for judicial review of the Board’s certification and the refusal to hold a hearing.
Issues
| Issue | Plaintiff's Argument (Jam) | Defendant's Argument (Board/Local No. 2) | Held |
|---|---|---|---|
| Whether the Board erred in refusing to hold an evidentiary hearing on Jam’s election objection alleging the union steered premium union jobs to non‑union employees to induce votes | Jam argued its proffered evidence (names, texts, production manager testimony, employment records showing unusual referrals during the critical period) created substantial and material factual issues warranting a hearing to determine if the jobs were an improper, tangible economic inducement | Board/Local No. 2 argued referrals occurred through the union’s ordinary open automated call system available to non‑members, so no reason to suspect unlawful vote‑buying; Jam hadn’t produced union records or direct proof of deviation from ordinary practice | Held for Jam: the proffer created a substantial and material factual issue; remanded for an evidentiary hearing because the Regional Director abused discretion by not investigating or holding a hearing |
| Whether the Board clearly erred in sustaining ballot challenges and enforcing the stipulated eligibility date after the ULP-caused delay | Jam argued the 7‑month delay caused by the ULP warranted moving the eligibility date (or allowing the nearly‑hired workers to vote) to avoid disenfranchising employees who shared a community of interest | Board argued election agreements are binding and the payroll-period cutoff was clear and enforceable; delays here were not so extraordinary as to require relief | Held for Board on ballots: the stipulated eligibility date was clear and enforcing it was not clear error; the challenged post‑cutoff ballots were properly excluded |
Key Cases Cited
- Savair Mfg. Co. v. NLRB, 414 U.S. 270 (1973) (unions/employers may not use rewards inducements to buy votes; Board must ensure fair and free choice)
- Exchange Parts Co. v. NLRB, 375 U.S. 405 (1964) (employees may infer future benefits from current grants when considering votes)
- Freund Baking Co. v. NLRB, 165 F.3d 928 (D.C. Cir. 1999) (both crude and subtle forms of union vote‑buying are prohibited)
- NLRB v. Service Am. Corp., 841 F.2d 191 (7th Cir. 1988) (employer need only make prima facie showing of misconduct to obtain hearing; hearing purpose is to develop evidence)
- NLRB v. River City Elevator Co., 289 F.3d 1029 (7th Cir. 2002) (test for whether an offered benefit could influence a voter)
- Clearwater Transport, Inc. v. NLRB, 133 F.3d 1004 (7th Cir. 1998) (standard for reviewing Board’s refusal to hold hearing)
- Sears, Roebuck & Co. v. NLRB, 349 F.3d 493 (7th Cir. 2003) (substantial‑evidence standard for Board factual findings)