Heartland Human Servs. v. Nat'l Labor Relations Bd.

• Decision Date: 14 March 2014
• Docket Number: Nos. 13–1954,13–2079.,s. 13–1954
• Citation: 746 F.3d 802
• Court: U.S. Court of Appeals — Seventh Circuit
• Parties: HEARTLAND HUMAN SERVICES, Petitioner/Cross–Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross–Petitioner, and American Federation of State, County & Municipal Employees, Council 31, AFL–CIO, Intervening Respondent.

746 F.3d 802

HEARTLAND HUMAN SERVICES, Petitioner/Cross–Respondent,

v.NATIONAL LABOR RELATIONS BOARD, Respondent/Cross–Petitioner,andAmerican Federation of State, County & Municipal Employees, Council 31, AFL–CIO, Intervening Respondent.

Nos. 13–1954, 13–2079.

United States Court of Appeals,Seventh Circuit.

Argued Jan. 23, 2014.

Decided March 14, 2014.

Linda Dreeben, Jill A. Griffin, David Habenstreit, Barbara A. Sheehy, Attorneys, National Labor Relations Board, Office of the General Counsel, Washington, DC, Daniel L. Hubbel, National Labor Relations Board, St. Louis, MO, for Respondent/Cross–Petitioner.

John L. Gilbert, Attorney, Sandberg, Phoenix & Von Gontard, Edwardsville, IL, Joshua G. Vincent, Attorney, Hinshaw & Culbertson, Chicago, IL, James H. Wyman, Attorney, Hinshaw & Culbertson LLP, Coral Gables, FL, for Petitioner/Cross–Respondent.

Melissa J. Auerbach, Attorney, Cornfield & Feldman, Chicago, IL, for Intervening Respondent.

Before POSNER and RIPPLE, Circuit Judges, and GILBERT, District Judge.^*

POSNER, Circuit Judge.

The Labor Board asks us to enforce its order finding that Heartland Human Services, a company that provides mental-health and substance-abuse services, committed an unfair labor practice by refusing, in the wake of a decertification election, to continue recognizing a union that represented a bargaining unit of Heartland employees. See 29 U.S.C. § 158(a)(1), (5). (Until enforced by judicial order, an unfair labor practice order has no legal force, 29 U.S.C. § 160(e); NLRB v. P*I*E Nationwide, Inc., 894 F.2d 887, 890 (7th Cir.1990); National Ass'n of Manufacturers v. NLRB, 717 F.3d 947, 951 (D.C.Cir.2013), which is why the Board has petitioned us.) We must decide both whether we have jurisdiction to adjudicate the company's challenge to the Board's order setting aside the results of the election and whether Heartland indeed committed an unfair labor practice by refusing to recognize the union after the election.

In August 2011, just days after the latest collective bargaining agreement between the company and the union had expired, one of the employees in the bargaining unit asked the Labor Board to conduct a decertification election on the ground that many of the unit's members no longer wanted to be represented by the union. Neither the company nor the union opposed the request. The election was conducted in June of the following year. Thirty-eight votes were cast: 19 for the union and 18 against, with the remaining ballot not opened because the union contended that the employee who had cast it was not a member of the bargaining unit. The Board rejected that challenge, the ballot was opened, and the vote was against the union, which meant the election had resulted in a tie.

Had that been the only challenge to the election, the union, lacking majority support, would have been decertified and so the company would no longer have been required to recognize and bargain with it. 29 U.S.C. § 159(a); Ron Tirapelli Ford, Inc. v. NLRB, 987 F.2d 433, 436 (7th Cir.1993); Kinney Drugs, Inc. v. NLRB, 74 F.3d 1419, 1423 (2d Cir.1996). But the union challenged the result of the election on another ground as well—that the company had used “objectionable conduct” to turn the employees against the union, conduct that included among other things the sending of a letter of unknown but possibly management origin to a member of the bargaining unit threatening her with jail if she voted for the union.

“Objectionable conduct,” though it is a ground for setting aside the results of a representation election if the conduct is found to have interfered with the voters' “free choice,” NLRB v. O'Daniel Trucking Co., 23 F.3d 1144, 1149 (7th Cir.1994); Comcast Cablevision Taylor v. NLRB, 232 F.3d 490, 494 (6th Cir.2000), need not be so “objectionable” as to constitute an unfair labor practice. Siemens Mfg. Co., 322 N.L.R.B. 994, 994 n. 2 (1997). The distinction is important because the Labor Board will not conduct a new election if an unfair labor practice charge is pending. National Labor Relations Board, Casehandling Manual: Representation Proceedings § 11730 (Aug.2007); Albertson's, Inc. v. NLRB, 161 F.3d 1231, 1239 (10th Cir.1998); Surprenant Mfg. Co. v. Alpert, 318 F.2d 396, 397–98 (1st Cir.1963). (There are exceptions to this rule, see Casehandling Manual, supra, § 11731, but none contended to be applicable to this case.) The rule is grounded in concern that the conduct charged as an unfair labor practice may, until its legality is determined, poison the new election. Bishop v. NLRB, 502 F.2d 1024, 1028–29 (5th Cir.1974).

The Board agreed with three of the union's charges of objectionable conduct and in September 2012 ordered a new election. Before then, however, in July, shortly after the decertification election, the company—claiming that the result of the election proved that the union had lost the support of a majority of the unit—had announced that it would no longer cooperate with the union in any of the ways that are required of a company that has employees who have a certified collective bargaining representative. See 29 U.S.C. §§ 158, 159. It had, in short, rescinded its recognition of the union. This was premature, since the challenged ballot had not yet been opened. Until a union is decertified following an election, the company's obligations to it are the same as they had been before the election and if it spurns those obligations it is guilty of an unfair labor practice. Virginia Concrete Corp., 338 N.L.R.B. 1182, 1184 n. 5 (2003); W. A. Krueger Co., 325 N.L.R.B. 1225, 1226 (1990); Presbyterian Hospital, 241 N.L.R.B. 996, 998 (1979).

The union was thus on solid ground in responding to the company's withdrawal of recognition by filing an unfair labor practice complaint, 29 U.S.C. § 158(a)(1), (5), which it did in August 2012. The Board upheld the complaint and ordered the company to recognize the union and bargain with it on request. That's the order the Board is asking us to enforce. The company argues that it committed no unfair labor practice because it had solid grounds for believing that the union no longer represented a majority of the unit's employees.

The Board issued the unfair labor practice order in March 2013, some nine months after the election. The new election ordered by the Board in September 2012 has not yet been held—20 months after the first election—because the unfair labor practice proceeding hasn't been finally resolved, owing to the pendency of this judicial review proceeding.

Such delay undermines the rationale for an election do-over, which is intended to be remedial—to be a cure for the irregularities that prompted the decision to set aside the result of the original election. Rosewood Mfg. Co., 263 N.L.R.B. 420 (1982); see also NLRB v. Gissel Packing Co., 395 U.S. 575, 610–11, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969); NLRB v. Jamaica Towing, Inc., 632 F.2d 208, 212 (2d Cir.1980). In the space of 20 months the unit membership may have changed. The company or the union may have tried with some success to alter the size or composition of the unit so that its opponents would be less likely to prevail. New employees would be unfamiliar with the union; some old ones may have forgotten it; and the company could have used the period to accustom the employees to the union's absence.

The logical solution to the problems created by a long delay (owing to judicial review) in the holding of the reelection would seem to be for the company, rather than precipitating an unfair labor practice charge by refusing to bargain with the union, to be subjected to a 30– or 60–day deadline for seeking judicial review of the Board's order sustaining the union's objections to the outcome of the first election. That route is blocked, however, by decisions by the Supreme Court, notably American Federation of Labor v. NLRB, 308 U.S. 401, 406–11, 60 S.Ct. 300, 84 L.Ed. 347 (1940), and Boire v. Greyhound Corp., 376 U.S. 473, 476–79, 84 S.Ct. 894, 11 L.Ed.2d 849 (1964), holding that an order by the Labor Board certifying or decertifying a union is subject to judicial review only in conjunction with an unfair labor practice order by the Board. For only a “final order” of the Board is reviewable, 29 U.S.C. § 160(f), and the cases we've just cited hold that certification orders are not “final orders.” See also Chicago Truck Drivers, Helpers & Warehouse Workers Union v. NLRB, 599 F.2d 816, 817–18 and n. 2 (7th Cir.1979); Adtranz ABB Daimler–Benz Transportation, N.A., Inc. v. NLRB, 253 F.3d 19, 24–25 (D.C.Cir.2001); Michael C. Harper, “The Case for Limiting Judicial Review of Labor Board Certification Decisions,” 55 Geo. Wash. L.Rev. 262, 271–72, 275 (1987). They are orders, and they are final; the reason that has been given for withholding immediate judicial review is concern that immediate review would delay the holding of the new, curative election. Boire v. Greyhound Corp., supra, 376 U.S. at 477–79, 84 S.Ct. 894;Mosey Mfg. Co. v. NLRB, 701 F.2d 610, 614 (7th Cir.1983) (en banc); Leedom v. Kyne, 358 U.S. 184, 191–94, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958) (dissenting opinion). The median interval between the filing of a petition for an election, and the election, is only 38 days, whereas the interval between the filing of a petition for judicial review of a decision by the Labor Board and the disposition of the case by the court of appeals is bound to be a number of months.

But although judicial review of a Board order confirming or setting aside an election is thus postponed, it is not eliminated. Errors committed in the electoral process must be corrigible on judicial review for certification and decertification to be...