Vic Koenig Chevrolet, Inc. v. N.L.R.B.

• Decision Date: 29 September 1997
• Docket Number: 96-3770,Nos. 96-3523,s. 96-3523
• Citation: 126 F.3d 947
• Parties: 156 L.R.R.M. (BNA) 2385, 134 Lab.Cas. P 10,057 VIC KOENIG CHEVROLET, INC., Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 947

126 F.3d 947

156 L.R.R.M. (BNA) 2385, 134 Lab.Cas. P 10,057

VIC KOENIG CHEVROLET, INC., Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.

Nos. 96-3523, 96-3770.

United States Court of Appeals Seventh Circuit.

Argued May 21, 1997.

Decided Sept. 29, 1997.

Wendy L. Nutt, James F. Hendricks (argued), Brittain, Sledz, Morris & Slovak, Chicago, IL, for Petitioner, Cross-Respondent.

Charles P. Donnelly, Jr., National Labor Relations Board, Contempt Litigation Branch, Washington, DC, Elizabeth Kinney, National Labor Relations Board, Region 13, Chicago, IL, Aileen A. Armstrong, William M. Bernstein (argued), National Labor Relations Board, Appellate Court, Enforcement Litigation, Washington, DC, Robert S. Seigel, National Labor Relations Board, Region 14, St. Louis, MO, for Respondent, Cross-Petitioner.

Before POSNER, Chief Judge, and BAUER and MANION, Circuit Judges.

POSNER, Chief Judge.

The Labor Board found that the employer improperly withdrew recognition of the union that was the certified bargaining representative of its workers. 321 N.L.R.B. 1255, 1996 WL 496374 (1996). The National Labor Relations Act entitles workers to bargain collectively, or not, as they choose by majority vote of their bargaining unit. 29 U.S.C. §§ 157, 159(a). So even if they have chosen to bargain collectively, and a union has been certified as their bargaining representative, they can revoke that choice and decide to bargain individually with their employer; but this is subject to limitations designed, like the rules governing political representation, to limit the frequency of regime changes. Thus, if a collective bargaining agreement is in force, the workers usually must continue to bargain collectively through their union representative until the agreement expires, NLRB v. Burns Int'l Security Services, Inc., 406 U.S. 272, 290 n. 12, 92 S.Ct. 1571, 1583-84 n. 12, 32 L.Ed.2d 61 (1972); NLRB v. Dominick's Finer Foods, Inc., 28 F.3d 678, 683 (7th Cir.1994); NLRB v. Katz's Delicatessen of Houston Street, Inc., 80 F.3d 755, 760 n. 3 (2d Cir.1996), and there is also a bar against holding a decertification election within a year after a valid representation election or after certification of a union as the representative of the bargaining unit, and within a reasonable time after the voluntary recognition of the union as bargaining agent by the employer. 29 U.S.C. § 159(c)(3); Brooks v. NLRB, 348 U.S. 96, 75 S.Ct. 176, 99 L.Ed. 125 (1954); Rock-Tenn Co. v. NLRB, 69 F.3d 803, 808 (7th Cir.1995); Randall Division of Textron, Inc. v. NLRB, 965 F.2d 141, 145 (7th Cir.1992). The Act forbids the employer to interfere with the workers' choice, 29 U.S.C. § 158(a)(1), but is silent on whether, if some or all of the workers want to abandon collective bargaining, he may help them do so.

The standard method for revoking union representation is for the workers to file a petition for decertification with the Labor Board, which, if satisfied that the petition presents a real question of whether the union continues to be supported by a majority of the workers in the unit, will conduct an election, provided none of the election bars mentioned above is in the way. 29 U.S.C. § 159(c)(1); 29 C.F.R. § 101.18(a). But even before the petition is filed or granted, the employer can (subject to the same qualification) stop bargaining with the union if he has a reasonable belief that a majority of the workers in the bargaining unit no longer want to be represented. Auciello Iron Works, Inc. v. NLRB, --- U.S. ----, ----, 116 S.Ct. 1754, 1758, 135 L.Ed.2d 64 (1996); Rock-Tenn Co. v. NLRB, supra, 69 F.3d at 808; Lee Lumber & Bldg. Material Corp. v. NLRB, 117 F.3d 1454, 1458 (D.C.Cir.1997) (per curiam); NLRB v. Katz's Delicatessen of Houston Street, Inc., supra, 80 F.3d at 764; NLRB v. American Linen Supply Co., 945 F.2d 1428, 1433 (8th Cir.1991). Even if, as in this case, a collective bargaining agreement is in force, bringing the "contract bar" rule into play, the employer can withdraw recognition so far as negotiating future contracts is concerned. Rock-Tenn Co. v. NLRB, supra, 69 F.3d at 808; Abbey Medical/Abbey Rents, Inc., 264 N.L.R.B. 969, 1982 WL 23766 (1982), enforced without opinion, 709 F.2d 1514 (9th Cir.1983).

So far, the parties are on common ground. They diverge when it comes to the amount of assistance that the employer may lawfully provide to the workers' efforts to decertify the union. The employer, an automobile dealer in southern Illinois, claims the right to provide the workers with any assistance that doesn't interfere with their freedom of choice. This is the standard implied by sections 7 and 8 of the Act and explicit in a number of the Board's cases. E.g., Eastern States Optical Co., 275 N.L.R.B. 371, 1985 WL 45678 (1985); Washington Street Brass & Iron Foundry, Inc., 268 N.L.R.B. 338, 339, 1983 WL 24743 (1983). In the present case, however, the Board argues that the employer may provide only "ministerial" assistance; anything more "taints" the workers' efforts fatally. This is a prophylactic rule, also with support in prior Board cases, e.g., Cummins Component Plant, 259 N.L.R.B. 456, 460-61, 1981 WL 21032 (1981); Times-Herald, Inc., 253 N.L.R.B. 524, 1980 WL 12610 (1980); cf. Dayton Blueprint Co., 193 N.L.R.B. 1100, 1107-08 (1971), and born either of fear that employers might seek to influence the workers by means too subtle to be detected by the union or proved by the Board, or of a bias in favor of unionization.

The courts have not had to choose between these rules, and have not done so; the cases in which the Board's finding of unlawful assistance has been upheld on judicial review are ones in which the employer had been found to have interfered with the free choice of the employees. E.g., Rock-Tenn Co. v. NLRB, supra, 69 F.3d at 808-09; Caterair Int'l v. NLRB, 22 F.3d 1114, 1120-21 (D.C.Cir.1994); NLRB v. American Linen Supply Co., supra, 945 F.2d at 1433. There would be no practical difference between the employer's and the Board's formulation if "ministerial" meant the same as "not likely to sway the workers one way or the other"; in many cases it does mean just this, see, e.g., Placke Toyota, Inc., 215 N.L.R.B. 395, 1974 WL 11227 (1974); but in some it does not--a good example being Dayton Blueprint Co., supra, 193 N.L.R.B. at 1107-08, where the employer's act in carrying the petition for decertification to the Board, after the workers had signed it, was held to be forbidden assistance. Yet neither in that case nor in any other case in which the assistance was rendered after the workers had decided to petition for decertification was this the only form of assistance; in all the cases the employer had also provided assistance that might have affected the decision. Royal Himmel Distilling Co., 203 N.L.R.B. 370, 377, 1973 WL 4385 (1973), intimates that if the only assistance is after the fact, as it were, it is not unlawful.

In its opinion in the present case, the Board expressly endorsed the "no more than ministerial aid" formula, see 321 N.L.R.B. at 1259-60, but failed to indicate whether the formula means anything more than that the employer may not give aid that is likely to affect the outcome of the decertification effort. The Board began its discussion with a quotation from the Eastern States Optical case, which had seemed to define "ministerial aid" as aid not likely to affect the outcome. 321 N.L.R.B. at 1259, quoting 275 N.L.R.B. at 372. But elsewhere the opinion in the present case discusses the "ministerial aid" formula as if its interpretation stood free from any reference to the objective of protecting the free choice of the employees, in much the same way that the Miranda rule stands free from its underlying objective of preventing coerced confessions: even if the circumstances thoroughly negate any inference of coercion, if the rule is violated the confession must be suppressed. Given the lack of clarity in the Board's standard and the Board's much-criticized yet stubbornly persisted-in reluctance to use its express rulemaking power to clarify such muddles, see, e.g., American Hospital Ass'n v. NLRB, 899 F.2d 651, 655 (7th Cir.1990), aff'd on other grounds, 499 U.S. 606, 111 S.Ct. 1539, 113 L.Ed.2d 675 (1991); International Union v. NLRB, 802 F.2d 969, 974 (7th Cir.1986); Retail, Wholesale & Department Store Union v. NLRB, 466 F.2d 380, 388-89 (D.C.Cir.1972); NLRB v. Majestic Weaving Co., 355 F.2d 854, 860 (2d Cir.1966) (Friendly, J.), we are unclear just what the Board's rule is. Sullivan Industries v. NLRB, 957 F.2d 890, 897-902 (D.C.Cir.1992); see also Continental Web Press, Inc. v. NLRB, 742 F.2d 1087, 1093-94 (7th Cir.1984).

We may assume without having to decide that it would not be irrational for the Board to take the strictest view and bar all nontrivial assistance whenever rendered; the argument would be that assistance in filing the petition for decertification could conceivably influence the workers' vote in the subsequent decertification election if one were ordered. This would still be some distance from interfering with free choice; choices are made on a weighing of influences. And the bearing of the free-speech clause in the National Labor Relations Act, 29 U.S.C. § 158(c), would have to be considered, though it is not argued that the clause entitles employers to engage in as it were continuous campaigning to persuade their employees to forgo collective bargaining, and it is the very core of the rule whose scope is in issue in this case that the employer may not urge his employees to seek decertification. E.g., NLRB v. United Union, 915 F.2d 508, 509, 512 (9th Cir.1990); Twin City Concrete, Inc., 317 N.L.R.B. 1313, 1321, 1995 WL 451928 (1995); Allou Distributors, Inc., 201 N.L.R.B. 47, 53, 1973 WL 4953 (1973). We need not pursue these fascinating byways. The Board's previous cases, as we have seen, do not announce or instantiate the...