K-mart Corporation, Petitioner, Cross-respondent, v. National Labor Relations Board, Respondent, Cross-petitioner,andtruck Drivers, Oil Drivers, Filling Station and Platformworkers, Local 705, International Brotherhood Ofteamsters, Intervening Respondent,intervening Cross-petitioner, 125 F.3d 572 (7th Cir. 1997)

This is a successive appeal. We shall assume familiarity with our earlier decision in this case. See K-Mart Corp. v. NLRB, 62 F.3d 209 (7th Cir. 1995). In that decision, we remanded this case to the Board because it previously had failed to provide a sufficient analysis of the evidence that several employees were photographed by persons associated with the union campaign effort. On remand, the Board examined the evidence of record and concluded that it was insufficient to establish objectionable conduct. In the Board's view, the testimony of the four individuals who testified was insufficient to establish that the photographing interfered with employee free choice in the election.

After considering the arguments of counsel in their respective briefs, the court does not believe that there is need for further oral argument. We are further of the view that the proceedings of the Board upon remand are in compliance with our earlier direction and that the conclusion of the Board is supported by substantial evidence. Its decision represents a reasonable exercise of its discretion and expertise in assessing the impact of conditions surrounding an election. We must recognize and pay due deference to the "Board's special function of applying the provisions of the Act to the complexities of industrial life." NLRB v. P*I*E Nationwide, Inc., 923 F.2d 506, 513 (7th Cir. 1991) (quoting NLRB v. Erie Resistor Corp., 373 U.S. 221, 236, 83 S. Ct. 1139, 1149, 10 L. Ed. 2d 308 (1963)).

Accordingly, the petition for review is denied and the order of the board is enforced. The Board may recover its costs in this court.