The Honorable Joan Humphrey Lefkow of the Northern



District of Illinois, sitting by designation.

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-3639

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

v.

E.A. SWEEN COMPANY,

Respondent.

On Application for Enforcement of an

Order of the National Labor Relations Board.

No. 13-CA-45563

ARGUED APRIL 15, 2011—DECIDED MAY 16, 2011

Before POSNER and MANION, Circuit Judges, and

LEFKOW, District Judge.



LEFKOW, District Judge. 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-
2 No. 10-3639

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.

I.

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 letterhead 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
No. 10-3639 3

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.
4 No. 10-3639

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 election was

valid and that E.A. Sween had engaged in unfair labor

practices by refusing to bargain. It issued a plenary order

directing the company to bargain.

The Board filed an application for enforcement in this

court (NLRB v. E.A. Sween Co., No. 10-1075). We remanded

after New Process Steel, L.P. v. NLRB, ___ U.S. ___, 130
No. 10-3639 5

S. Ct. 2635, 177 L. Ed. 2d 162 (2010), for further proceedings before a three-member panel of the Board. On

November 9, 2010, the Board, by a three-member panel,

issued a decision finding that the company’s refusal to

bargain violated sections 8(a)(1) and (5). The Board

did not address the validity of the election, noting

that no new evidence or special circumstances would

require the Board to reexamine the decision made in the

first proceeding. Again, the Board ordered the company

to bargain with the Union. E.A. Sween persisting in

its refusal to bargain, the Board filed this application for

enforcement.

II.

We may review the Board’s certification decision once

the Board has determined that an unfair labor practice

has occurred. See 29 U.S.C. § 159(d); Boire v. Greyhound

Corp., 376 U.S. 473, 476-79, 84 S. Ct. 894, 11 L. Ed. 2d

849 (1964); NLRB v. AmeriCold Logistics, Inc., 214 F.3d

935, 937 (7th Cir. 2000). We defer to the Board’s findings

of fact if they are supported by substantial evidence and

to its legal conclusions if they have a “reasonable basis

in law.” SCA Tissue N. Amer. LLC v. NLRB, 371 F.3d

983, 987-88 (7th Cir. 2004); NLRB v. City Wide Insulation

of Madison, Inc., 370 F.3d 654, 657 (7th Cir. 2004).

The issue is whether the Board was correct in certifying

the election. E.A. Sween argues again that the election

should be set aside because the Union’s campaign flyer

was deceptive and misleading and because the flyer was

a forgery. Under Midland National Life Ins. Co., 263 N.L.R.B.
6 No. 10-3639

127, 133 (1982), the Board will not “probe into the truth

or falsity of the parties’ campaign statements, [or] set

elections aside on the basis of misleading campaign

statements. [It] will, however, intervene in cases where

a party has used forged documents which render the

voters unable to recognize propaganda for what it is.”

The rationale for the rule is that employees are

“ ‘mature individuals who are capable of recognizing

campaign propaganda . . . and discounting it.’ ” Id. at 130

(quoting Shopping Kart Food Market, Inc., 228 N.L.R.B.

1311, 1313 (1977)).

E.A. Sween urges focus on the first sentence: “ ’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.’ ” Irrespective of whether it is deceptive or

misleading, the sentence is certainly not a “forgery”—a

counterfeit—of a Supreme Court decision. It is not explicitly attributed to the Supreme Court; neither does

the quoted portion reflect language or syntax a learned

justice would possibly use.

Failing that, E.A. Sween argues that the first sentence

led employees to believe that the quoted text was the

holding of a Supreme Court case, a deception that

justifies our adopting the Sixth Circuit’s exception to

Midland in circumstances “where no forgery can be

proved, but . . . the misrepresentation is so pervasive

and the deception so artful that employees will be

unable to separate truth from untruth and . . . their right
No. 10-3639 7

to free and fair choice will be affected.” NLRB v. Hub

Plastics, 52 F.3d 608, 612 (6th Cir. 1995) (quoting Van Dorn

Plastic Mach. Co. v. NLRB, 736 F.2d 343, 348 (6th Cir.

1984)). As this court has previously recognized, however,

there is no need to determine the limits of Midland

where the “situation . . . fall[s] squarely in the heartland of

the Midland doctrine—statements regarding a campaign

issue that voters could easily recognize as propaganda.”

Uniroyal Tech. Corp., Royalite Div. v. NLRB, 98 F.3d 993,

1003 & n.29 (7th Cir. 1996) (citing NLRB v. Affiliated Midwest Hosp., 789 F.2d 524, 528-29 & n.3 (7th Cir. 1986);

NLRB v. Chicago Marine Containers, 745 F.2d 493, 498-500

(7th Cir. 1984)). Far from artfully deceptive, the first

sentence makes no sense. Apparently the author recognized as much because the second sentence explains the

first with an essentially correct statement of the law:

“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.” See

Advo System Inc., 297 N.L.R.B. 926, 940 (1990); Arrow

Elastic Corp., 230 N.L.R.B. 110, 113 (1977), enforced, 573

F.2d 702 (1st Cir. 1978). Whether the first sentence is

misleading or simply meaningless, the second sentence

clearly explains what the Union intended to convey.

The findings of the Board that the statement was not

a forgery and, although misleading, did not justify

setting aside the election, is neither without substantial evidentiary basis in the hearing record nor based

on an incorrect statement of the law.
8 No. 10-3639

CONCLUSION

Accordingly, the Board’s application for an order judicially enforcing its entire order is granted.

5-16-11