NLRB v. Orland Park Motor , 309 F.3d 452 ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-2894
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
and
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
LOCAL #731, AFL-CIO,
Intervenor,
v.
ORLAND PARK MOTOR CARS, d/b/a MERCEDES
BENZ OF ORLAND PARK,
Respondent.
____________
On Application for Enforcement of an
Order of the National Labor Relations Board
Nos. 13-CA-38061 and 13-CA-38185
____________
ARGUED APRIL 16, 2002—DECIDED OCTOBER 29, 2002
____________
Before CUDAHY, COFFEY and WILLIAMS, Circuit Judges.
COFFEY, Circuit Judge. Mercedes Benz of Orland Park
operates a car dealership in south suburban Cook County,
Illinois. In August 1999, the company’s non-mechanical
service employees (consisting of car drivers, porters, de-
tailers, and parts department employees) voted to join the
International Brotherhood of Teamsters Local #731 and
thereafter went on strike. The purpose of the strike was
2 No. 01-2894
to pressure the dealership to recognize the union as the
employees’ bargaining agent and to protest various unfair
labor practices that the workers alleged were being com-
mitted by the company. The National Labor Relations
Board subsequently concluded—and the employer did
not dispute on appeal1—that certain of the dealership’s
managers violated the National Labor Relations Act
when due to anti-union animus they discharged or threat-
ened to discharge several employees, coerced striking em-
ployees through the use of surveillance tactics, abandoned
their commitment to improve the employees’ benefit plans,
and refused to allow any striking employees to return to
work despite their unconditional offers to do so. The Board
thereafter issued an order directing the company to en-
ter into good-faith bargaining with the union. 333 NLRB
No. 127. We enforce the order of the Board.
I. FACTUAL BACKGROUND
Michael Chiarito, a porter at Orland Park Motor Cars’s
Mercedes-Benz dealership, arranged for officials from
Teamsters Local #731 to meet with the company’s non-
mechanical service employees in late August 1999 for the
purpose of discussing the possibility of securing union rep-
resentation. Chiarito obtained signed union authorization
1
When this case was originally tried before an administrative
law judge, the company disputed the allegation that it violated
any provisions of the Act. In this court, however, the company has
elected to contest only the Board’s choice of remedies and argue
that “the National Labor Relations Board erred in its finding that
a Gissel bargaining order was an appropriate remedy.” (Br. at 9.)
“The Company does not challenge the Board’s finding that it
committed unfair labor practices in its efforts to thwart the Union
election campaign, and therefore this part of the Board’s Order is
summarily enforced.” Livingston Pipe & Tube Inc. v. NLRB, 987
F.2d 422, 425-26 (7th Cir. 1993).
No. 01-2894 3
cards from twelve out of the twenty-one workers (approxi-
mately fifty-seven percent of the workforce) between August
24 and August 30 and thereafter notified the Teamsters of
the employees’ wishes to join the union.
Chiarito’s attempt to organize his fellow employees was
opposed by members of Orland Park’s management team.
For example, during the union membership drive, the com-
pany’s service manager, Michael Maus, asked two employ-
ees, “Who started the union?” and stated that when he
found out the organizer’s name he would “f---king fire” the
man. Maus later made similar threats in the presence of
Chiarito. The company’s vice-president and general man-
ager, Barry Taylor, allegedly advised several employees
that they should vote against the union because “any
organizational drive would be futile.” Taylor also called a
meeting with the employees on August 30, 1999 and was
alleged to have told them that in light of the union activity
he was withdrawing his previously expressed commitment
to improve the firm’s employee benefit plan. Orland Park
has not challenged the Board’s ruling that Maus and
Taylor’s actions were motivated by an intent to undermine
majority support for the union.
After the conclusion of Taylor’s meeting and comments to
the employees on August 30, union officials approached
Taylor in his office and demanded that Orland Park rec-
ognize Teamsters Local #731 as their collective bargaining
representative. When Taylor refused, the employees walked
off the job and set up a picket line on the sidewalk in front
of the entrances to the dealership. The Board found—and
the company did not contest during oral argument—that
certain Orland Park officials participated in a number of
unfair labor practices during the month-long strike. For
example, on September 2, the company’s finance and in-
surance manager, Todd Koleno, paused while walking
through the picket line and informed the picketers that they
were “going to be fired” or otherwise lose their jobs. The
4 No. 01-2894
company’s dispatcher, Al Sizemore, followed through on this
threat the following day by terminating Brad Patrylak, an
employee who was on strike at the time. When Patrylak
approached Sizemore’s desk and attempted to pick up his
paycheck for work performed prior to the strike, Sizemore
handed Patrylak his check and advised him that this was
his “last” check, for he was fired “like the rest of them
outside.” Almost four weeks later, despite the fact that
many of the strikers had made unconditional offers to
return to work on September 29, General Sales Manager
David Nocera terminated Chiarito and further stated that
the remaining employees who had participated in the strike
also “were no longer employees of the company.”2
The administrative law judge found that the company’s
actions violated three separate provisions of the Act. Spe-
cifically, the judge ruled that the employer: (1) violated
§ 8(a)(1) of the Act by coercing or interfering with the
employees’ right to form and join a labor union; (2) violated
§ 8(a)(3) of the Act by engaging in discriminatory hiring
practices in order to discourage the employees from forming
and joining a labor union; and (3) violated § 8(a)(5) of the
Act by refusing to bargain with Teamsters Local #731 after
the union had been designated by the employees as their
collective bargaining agent of choice. The Board determined
that the appropriate remedy for Orland Park’s unlawful
activity was to: (1) order Orland Park to cease and desist its
unfair labor practices; (2) offer full reinstatement with back
pay to any striking employee who was discharged; and (3)
engage in collective bargaining with the union.
2
Orland Park subsequently mailed letters to some of the em-
ployees stating that they had been placed on a “preferential hiring
list,” but only one man was offered a position—and this offer was
not made until December 23, 1999, just two weeks prior to the
commencement of the initial hearing in this case before the Na-
tional Labor Relations Board.
No. 01-2894 5
II. DISCUSSION
This matter comes before the court on a petition for
enforcement filed by the National Labor Relations Board.
The sole argument raised by Orland Park in opposition to
the Board’s petition is that it was improper for the Board to
order the company to initiate collective bargaining with the
Teamsters union. We review the Board’s decision to impose
a bargaining order for an abuse of discretion. NLRB v.
Intersweet Inc., 125 F.3d 1064, 1067 (7th Cir. 1997).
Congress has entrusted the Board with eliminating the
effects of an employer’s unfair labor practices and protect-
ing the rights of employees to determine, in an environment
free of coercion and interference, whether or not to join a
labor union of their choice. If a majority of employees have
signed authorization cards designating a particular union
as their representative, but the employer has engaged in
unfair labor practices during an organizational campaign
which have had “the tendency to undermine majority
strength and impede election processes,” then after a hear-
ing the Board is empowered to certify the designated union
and order the company to enter into collective bargaining
with that union. NLRB v. Gissel Packaging Co., 395 U.S.
575, 614 (1969).
The agency is required to conduct a fair, impartial, and
detailed analysis before imposing a bargaining order so as
to rule out the possibility that other less intrusive measures
would compensate for the damages caused by an employer’s
unfair labor practices. Orland Park maintains that the
Board improperly imposed a bargaining order in this case,
alleging that the Board failed to explain why other reme-
dies (such as issuing a cease-and-desist order and holding
another election in a closely monitored environment free of
coercion) would have been insufficient to protect the organ-
izational rights of the company’s employees. The employer
relies heavily on Peerless of America Inc. v. NLRB, 484 F.2d
1108 (7th Cir. 1973), to support the position that a bargain-
6 No. 01-2894
ing order is inappropriate. In Peerless, we stated that the
Board’s decision to issue such an order must be accompa-
nied by “ ‘specific findings’ as to the immediate and residual
impact of unfair labor practices on the election process . . .
and ‘a detailed analysis’ assessing the possibility of holding
a fair election . . . and the potential effectiveness of ordinary
remedies.” Id. at 1118. Orland Park argues that the Board’s
order in the case before us, like the order in Peerless, fails
to contain the “detailed analysis” and justification of the
Board’s choice of remedies that is required by our case law.
We disagree with the company.
Orland Park’s discussion of the applicable legal standards
ignores this Circuit’s post-Peerless cases, which have elab-
orated upon the “detailed analysis” requirement and made
clear that the Board’s analysis needs only to be sufficiently
detailed to “permit the court to perform its task of judicial
review.” Justak Brothers v. NLRB, 664 F.2d 1074, 1081 (7th
Cir. 1981). “Although we will find an abuse of discretion if
the Board fails to adequately consider alternatives and
explain its choice, we will not otherwise disturb the Board’s
decision unless it can be shown that the order is a patent
attempt to achieve ends other than those which can fairly
be said to effectuate the policies of the Act.” Intersweet, 125
F.3d at 1068 (quotation omitted). As we stated in Justak
Brothers, 664 F.2d at 1081, the “detailed analysis” require-
ment enunciated in Peerless should be understood in light
of its purpose of insuring judicial review of the Board’s
orders. The requirement
is meant neither to burden the Board nor to curtail the
issuance of bargaining orders. Elaborate explanations
are not essential; indeed, scientific accuracy in estimat-
ing the impact of unfair labor practices is impossible.
Rather we only require that the Board delineate the
factors that it considers in its estimation and describe
how those factors have been weighed.
Id.
No. 01-2894 7
The company’s argument that the Board should have
made “more specific findings” appears to be a disingenuous
attempt to force the Board to provide the type of “elaborate
explanations” that Justak Brothers, Intersweet, and other
cases have determined to be unnecessary. Upon review, we
hold that the Board complied with its mandate under the
law to explain and justify its decision when issuing the
bargaining order in this case. See America’s Best Quality
Coatings Corp. v. NLRB, 44 F.3d 516, 522 (7th Cir. 1995);
NLRB v. Berger Transfer, 678 F.2d 679, 694-95 (7th Cir.
1982). Initially, the Board identified and discussed the
company’s undisputed unfair labor practices, such as its
repeated threats to discharge labor organizers, its termina-
tion of a leading and outspoken union organizer, its retalia-
tory refusal to implement previously advertised improve-
ments to the firm’s employee benefits plan, its coercive
surveillance of employees on the picket line, and its refusal
to reinstate the striking employees despite their uncondi-
tional offer to return to work. The Board reasonably found
that such violations were likely to chill the employees’
future exercise of organizational rights, for the violations:
(1) were committed by no less than three senior managers
in the company who remained in positions of authority as
of the date of the Board’s order; (2) were widely known by
the employees in the putative bargaining unit; (3) began
within days of the organizational drive and continued
throughout the month-long strike; and (4) never were
repudiated by the company. In addition, the Board reason-
ably determined that an election would be infeasible and
would fail to reflect the true attitudes of the workers be-
cause most employees “would not likely risk again incurring
the company’s wrath and another period of unemployment
by resuming their union activities.” Finally, the Board
rejected the company’s argument that a bargaining order
would undermine the § 7 rights of any employees who might
oppose joining the union, stating that these workers will
remain free to call for an election to decertify the bargain-
8 No. 01-2894
ing unit at some point in the future if the union fails to
represent their interests. 29 U.S.C. § 159(c)(1).
We recognize that in many cases an employer has the
right to request a representation election if a majority of
employees have signed union authorization cards designat-
ing a particular union as their collective bargaining agent.
However, the Board may determine that the employer has
forfeited its right to call for an election by engaging in
conduct that is likely to undermine majority support for the
labor organization and disrupt the potential for fair elec-
tions. See Gissel, 395 U.S. at 612-15. In the case before us,
the NLRB concluded that Orland Park’s unfair labor prac-
tices were so pervasive that any election would be unlikely
to reflect the true sentiment of the service employees who
were members of the putative bargaining unit. The Board’s
analysis has allowed for meaningful judicial review and has
explained the basis of its decision. Because the Board’s
order is lawful, rational, supported by substantial evidence,
and sufficiently detailed in compliance with existing case
law, we are obligated to enforce the order as issued. See,
e.g., America’s Best, 44 F.3d at 522; NLRB v. Q-1 Motor
Express Inc., 25 F.3d 473, 481-82 (7th Cir. 1994); Berger
Transfer, 678 F.2d at 694-95.
In reaching this decision, we reject the employer’s
argument that the Board should have provided a more
extensive discussion regarding whether mitigating circum-
stances, such as employee turnover, have defeated the need
for a bargaining order. It might very well have been an
abuse of discretion if the Board had ignored evidence
presented by the employer establishing that relevant
circumstances at the company had significantly changed
between the time of the employer’s unfair labor practices
and the time that the Board’s bargaining order was issued.
See Impact Indus. v. NLRB, 847 F.2d 379, 383 (7th Cir.
1988). However, the burden rests on the employer to
present the Board with evidence of turnover prior to raising
No. 01-2894 9
such an argument in federal court. The Board has no
affirmative duty to inquire into employee turnover unless
the issue is first raised by the employer. NLRB v. USA
Polymer Corp., 272 F.3d 289, 295-96 (5th Cir. 2001);
Traction Wholesale Center Co. v. NLRB, 216 F.3d 92, 108
(D.C. Cir. 2000). Orland Park failed to argue the issue of
turnover before the Board, and thus it cannot do so now.
LSF Transp. Inc. v. NLRB, 282 F.3d 972, 983 (7th Cir.
2002); 29 U.S.C. § 160(e).
III. CONCLUSION
We hold that the Board’s analysis has adequately identi-
fied and discussed the unfair labor practices committed by
Mercedes Benz of Orland Park, demonstrated that the effect
of these unlawful practices undermined the potential for a
fair election, and balanced the relevant interests prior to
issuing a bargaining order in the case before us. The order
of the Board is ENFORCED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-29-02