In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-4121

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

v.

MICKEY’S LINEN AND TOWEL SUPPLY, INC.,

d/b/a DOMESTIC LINEN AND UNIFORM,

Respondent.

____________

On Application for Review of an Order of

the National Labor Relations Board.

No. 33-CA-14877.

____________

SUBMITTED MAY 30, 2006—DECIDED AUGUST 16, 2006

____________

Before POSNER, KANNE, and WOOD, Circuit Judges.

KANNE, Circuit Judge. The National Labor Relations

Board (the “Board”) has applied for enforcement of its

August 23, 2005 order, No. 33-CA-14877 (the “Order”),

issued against Mickey’s Linen and Towel Supply, Inc., d/b/a

Domestic Linen and Uniform (“Mickey’s”). In the Order, the

Board found Mickey’s refusal to bargain with Teamsters

Local 705, a/w International Brotherhood of Teamsters (the

“Union”) to be an unfair trade practice. Mickey’s challenge

of the Board’s certification of the Union is without merit,

and, therefore, we grant the application.

Mickey’s, located in Kankakee, Illinois, sells, rents, and

cleans uniforms and linens. The Union petitioned the Board

to represent a unit of Mickey’s full-time and regular parttime laundry production and maintenance employees. On
2 No. 05-4121

May 21, 2004, the Board conducted a secret-ballot election

in which the Union prevailed by a margin of 22 to 12.

Mickey’s objected, contending the election was unfair, and

a hearing was set. Despite Mickey’s request that the

hearing be held near Kankakee, the hearing was scheduled

to take place on December 2, 2004, in Peoria, approximately

125 miles from Mickey’s plant (about a two-hour drive).

Mickey’s objections to the election were founded upon

its allegation that a former supervisor named Lynell

Watts made racially inflammatory remarks and coerced

support for unionizing. Mickey’s produced three employees who voted in the election who testified that Watts

uttered remarks such as “it looks like the blacks against the

whites”; “all black people should stick together”; “the blacks

stick together”; and “[the black voters] had it wrapped up.”

Mickey’s fourth witness, a manager, authenticated (without

his personal knowledge) employees’ written statements to

that effect. Watts testified that he never made the statements, and two of the Union’s witnesses corroborated

Watts’s version of events.

The hearing officer recommended to the Board that

Mickey’s objections be overruled. Mickey’s filed exceptions

to the hearing officer’s findings and recommendations, but

to no avail. The Board adopted the hearing officer’s findings

and certified the Union on March 29, 2005.

“Refusing to bargain is the only way for an employer to

get judicial review of an NLRB decision upholding an

election and certifying a union.” NLRB v. AmeriCold

Logistics, Inc., 214 F.3d 935, 937 (7th Cir. 2000) (citing

NLRB v. Serv. Am. Corp., 841 F.2d 191, 193 n.3 (7th Cir.

1988)). Following the certification: (1) Mickey’s refused the

Union’s request to bargain, (2) the Union filed a charge, (3)

the Board issued a complaint, (4) Mickey’s admitted it

refused to bargain but contested the certification, and (5)

the Board granted summary judgment against Mickey’s
No. 05-4121 3

after finding it violated 29 U.S.C. § 158(a)(1) and (5). “That

labyrinthian chain of events finally brings us to this appeal,

where the real issue is whether the NLRB was right in

finding that the [U]nion won the election fair and square.”

Id.

The Board has wide discretion to set rules and procedural

safeguards to protect employees’ freedom to choose bargaining representatives. NLRB v. Precise Castings, 915 F.2d

1160, 1162 (7th Cir. 1990) (citing NLRB v. A.J. Tower Co.,

329 U.S. 324 (1946)). A Board-conducted representation

election is presumptively valid. Uniroyal Tech. Corp. v.

NLRB, 98 F.3d 993, 997 (7th Cir. 1996) (citation omitted).

Our review of the Board’s certification of a collective

bargaining agent after an election is “extremely limited,”

and we will affirm if it is supported by substantial evidence.

NLRB v. Erie Brush & Mfg. Co., 406 F.3d 795, 801 (7th Cir.

2005) (citation omitted); AmeriCold Logistics, 214 F.3d at

937. “Substantial evidence is ‘such relevant evidence as a

reasonable mind might accept as adequate to support the

conclusion of the Board.’ ” SCA Tissue N. Am. LLC v. NLRB,

371 F.3d 983, 988 (7th Cir. 2004) (quoting Huck Store

Fixture Co. v. NLRB, 327 F.3d 528, 533 (7th Cir. 2003)).

“Where the Board adopts the ALJ’s findings of fact and

conclusions of law, it is the ALJ’s determinations that we

review.” Id. (citing Sears, Roebuck & Co. v. NLRB, 349 F.3d

493, 508 (7th Cir. 2003)).

Mickey’s must show “that the unlawful acts occurred

and ‘that those acts interfered with the employees’ exercise of free choice to such an extent that they materially

affected the results of the election.’ ” See NLRB v. Chicago

Tribune Co., 943 F.2d 791, 794 (7th Cir. 1991) (quoting

Serv. Am. Corp., 841 F.2d at 195). Thus, Mickey’s must

demonstrate not only that Watts made the aforementioned remarks, but also that they caused the Union to

prevail in the election. Because the parties presented

conflicting testimony regarding whether Watts did utter the
4 No. 05-4121

remarks, the hearing officer was required to make a

credibility determination, which is entitled to great deference and will be upheld absent the most extraordinary

circumstances. See Erie Brush, 406 F.3d at 801 (citations

omitted); NLRB v. Joy Recovery Tech. Corp., 134 F.3d 1307,

1312 (7th Cir. 1998) (“As to credibility determinations when

there are two conflicting versions of the same incident, the

ALJ’s credibility determinations are entitled to deference.

We avoid determining credibility on the basis of a cold

record.”) (quotation omitted).

The hearing officer discredited two of Mickey’s witnesses:

Don Papineau, who testified that Watts said, “it looks like

the Union is the blacks against the whites”; and Denise

Wright, who testified that Watts said “all black people

should stick together.” The hearing officer pointed out that

each of these witnesses gave vague and conflicting answers.

As for Mickey’s third witness, Christine Hardy, the hearing

officer expressed “reservations” about her credibility

but—assuming Watts did make racially inflammatory

statements to her—determined Hardy was not part of the

bargaining unit and did not divulge the communication to

anyone. A fourth witness, John Betenia, testified he lacked

personal knowledge of Watts’s conduct, and the hearing

officer discredited it as hearsay. In the face of Watts’s

testimony to the contrary, which was corroborated by two

witnesses, the hearing officer concluded Mickey’s had not

presented sufficient evidence to prove Watts made any of

the purported statements.

Beyond its erroneous claim that the hearing officer’s

credibility determinations are entitled to no deference,

Mickey’s presents no argument warranting more than

minimal discussion. At most, Mickey’s points to circumstances in which the hearing officer could have inferred that

Watts lied; Mickey’s then adds conclusory statements to

suggest contradictions in Watts’s testimony. Suffice it

to say, none of these instances were material to the issue of
No. 05-4121 5

1 Of course, we need not consider whether the statements, if

made, were indeed of an inflammatory nature.

whether Watts made the statements, nor were they sufficiently specific to refute Watts’s testimony.

There may be some doubt as to Watts’s loyalties when he

testified (he had been fired), but that is insufficient to

overturn the hearing officer’s credibility decisions and

his conclusion that Mickey’s failed to prove any objectionable conduct did occur. The hearing officer stated he

made his findings based upon the entire record and his

observation of the witnesses, and he was not required to

itemize the witnesses’ physical characteristics to support

his conclusion. See Bloomington-Normal Seating Co. v.

NLRB, 357 F.3d 692, 695 (7th Cir. 2004). In sum, Mickey’s

does not explain why it would be extraordinary to conclude Watts told the truth.1 See id. (noting examples of

extraordinary circumstances include “ ‘clear bias by the

ALJ, utter disregard of uncontroverted sworn testimony, or

acceptance of testimony that on its face is incredible’ ”)

(quoting NLRB v. Gerig’s Dump Trucking, Inc., 137 F.3d

936, 941 (7th Cir. 1998)).

Mickey’s argues holding the December 2 hearing in Peoria

rather than Kankakee deprived it of the opportunity to

produce two additional witnesses, but the issue has not

been preserved for our review. “[A] party waives the right

to appeal an issue to the NLRB if it did not raise the issue

below.” NLRB v. Gen. Teamsters Union Local 662, 368 F.3d

741, 746 (7th Cir. 2004) (citation omitted). Mickey’s points

to its November 10 letter to the NLRB regional office, in

which it asked, “We assume that the hearing will be in

Kankakee, and will begin at 10:00?”

Mickey’s could not have raised the issue to the hearing

officer on November 10 because the hearing’s location had

not been established. And Mickey’s did nothing when the
6 No. 05-4121

notice of hearing was issued on November 18. Mickey’s

attended the hearing, and it was not until after calling

all but one of its witnesses that Mickey’s first complained

about the hearing’s location. Mickey’s rightfully does not

contend such an untimely objection was sufficient to

preserve the issue, and the NLRB rightfully refused to

consider it.

And even if it were properly before us, there is no reason to find an abuse of discretion. Mickey’s alleges that due

to the 125-mile distance, it lacked subpoena power under

Federal Rule of Civil Procedure 45. But Rule 45 sets a 100-

mile limit for subpoenas issued by district courts. Applicable here is 29 U.S.C. § 161(1), which establishes nationwide

subpoena authority for the Board. Had Mickey’s issued

subpoenas compelling these individuals to attend the

hearing, they would have been valid.

The Board’s application is GRANTED, and its Order will be

ENFORCED in full.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-16-06