Case Information
*2 Before P OSNER and R IPPLE Circuit Judges , and G ILBERT , District Judge . [*]
P OSNER Circuit Judge . The Labor Board asks us enforce its order finding that Heartland Human Services, a company provides mental health substance abuse services, committed by refusing, in wake of decertification continue recognizing union represented bargaining unit Heartland employees. See U.S.C. §§ 158(a)(1), (Until enforced by or der, has no legal force, U.S.C. § 160(e); P*I*E Nationwide, F.2d Cir. 1990); National Ass’n Manufacturers (D.C. 2013), which why petitioned us.) We must decide both whether we jurisdiction adjudicate company’s challenge setting results whether Heartland indeed prac tice union after
In August just days latest collective bar gaining agreement between expired, one employees bargaining unit asked decertification many unit’s members longer wanted represented union. Neither nor opposed request. was conducted June following year. Thirty eight votes were cast: against, remaining ballot opened contended employee who cast was member bargaining unit. rejected challenge, ballot opened, 13 1954, 13 2079 3 vote against union, which meant election resulted a tie.
Had been only challenge to un ion, lacking majority support, have decertified so longer have required to bargain with it. 29 U.S.C. § 159(a);
Ron Tirapel li Ford, Inc. v. NLRB
,
“Objectionable conduct,” though is setting results representation if conduct is found interfered voters’ “free choice,” NLRB v. O ʹ Daniel Trucking Co. , F.3d (7th Cir. 1994); Comcast Cablevision Taylor v. , F.3d (6th Cir. 2000), need “objectionable” as constitute practice. Siemens Mfg. Co. , N.L.R.B. distinction important La bor will charge pending. National Relations Board, Casehandling Manual: Representation Proceedings § (Aug. 2007); Albertson’s, F.3d Cir. 1998); Surprenant Mfg. Alpert (1st 1963). (There are exceptions this rule, see Casehandling Manual supra § but none contended applicable case.) rule grounded concern con 13 13 2079 duct charged as an unfair may, until its legali ‐ ty is determined, poison new Bishop 1974).
The agreed with three of union’s charges of ob ‐ jectionable in September ordered a Before then, however, in July, shortly de ‐ certification election, company—claiming that proved that union had lost support of majority unit—had announced it no longer cooperate with union in any ways are required company employees who certi fied collective bargaining representative. See U.S.C. §§ 159. It had, in short, rescinded its recognition union. This was premature, since challenged ballot had yet opened. Until decertified following company’s obligations it are same as they before it spurns those obli gations it guilty practice. Virginia Con crete Corp. N.L.R.B. (2003); W.A. Krueger Co ., N.L.R.B. (1990); Presbyterian Hospital N.L.R.B.
The thus on solid responding company’s withdrawal filing la bor complaint, U.S.C. §§ 158(a)(1), (5), which it did August 2012. upheld complaint ordered bargain it request. That’s asking us enforce. argues it no la bor solid grounds believing longer represented majority unit’s em ployees. 13 2079 5
The issued the order in March some nine months after the election. The ordered by the September yet held—20 months first election—because proceeding hasn’t finally resolved, owing to pendency judicial review proceeding.
Such delay undermines rationale for do over, which intended to be remedial—to be cure for irregularities prompted decision to set re sult original Rosewood Mfg. Co. N.L.R.B. (1982); see also NLRB v. Gissel Packing U.S. 610–11 (1969); v. Jamaica Towing, (2d 1980). In space months unit member ship may have changed. or may have tried with some success to alter size or composition unit its opponents would be less likely to pre vail. New employees be unfamiliar with union; some old ones may have forgotten it; could used period to accustom employees to union’s absence. logical solution problems created by long de
lay (owing judicial review) holding reelection seem company, rather than precipitating charge by bargain union, subjected ‐ or day deadline seeking sustaining union’s objections outcome first That route blocked, however, decisions Supreme Court, notably American Federation Labor U.S. 406–11 (1940), Boire Greyhound Corp ., U.S. (1964), holding cer *6 6 13 1954, 13 2079 tifying or decertifying a is subject judicial review only conjunction Board. For only a “final order” of Board is reviewa ‐ ble, 29 U.S.C. § 160(f), and cases we’ve just cited hold certification orders are “final orders.” See also Chi ‐ cago Truck Drivers, Helpers & Warehouse Workers Union v. NLRB , F.2d 816, 817–18 2 (7th Cir. 1979); Adtranz ABB Daimler Benz Transportation, N.A., v. NLRB , F.3d 19, 24–25 (D.C. Cir. 2001); Michael C. Harper, “The Case for Limiting Judicial Review of Labor Certification Deci ‐ sions,” Geo. Wash. L. Rev. 271–72, (1987). They are orders, they are final; reason given for withholding immediate judicial review is concern im ‐ mediate review delay holding of new, cura ‐ tive Boire v. Greyhound Corp. supra , U.S. at 477– 79; Mosey Mfg. v. 1983) (en banc); Leedom Kyne U.S. 191–94 (1958) (dis ‐ senting opinion). median interval between filing petition for election, is only days, whereas interval between filing petition judi cial review decision disposi tion case court appeals bound be number months. although judicial review confirming
or setting thus postponed, elimi nated. Errors electoral process must be cor rigible judicial review certification decertification acceptable as reliable determinations. Cf. U.S.C. §§ 704; Universal Camera Corp. U.S. 489–90 (1951); M. Elizabeth Magill, “Agency Choice Poli cymaking Form,” U. Chi. L. Rev. So how obtained: com pany continue to deal the union until the results the curative election were known. If the union won that election and was certified by the as the collective bar gaining representative the unit, and the company refused to accept result and deemed the refusal un fair labor and sought judicial enforcement its un fair order, company obtain Board’s determination that it had practice. And one it could raise upsetting determination was that first election been fair and therefore refusing decertify un ion been error and so company should not have required recognize union and court should enforce it do so. See, e.g., NLRB v. E.A. Sween F.3d (7th Cir. 2011); NLRB v. Lake Holiday Associates, Inc. F.2d (7th Cir. 1991); Carl Weissman & Sons, Inc. F.2d Cir. 1988) (per curiam); Timsco (D.C. 1987). It isn’t company refuse recognize should have decertified basis first election.
Heartland jumped gun before new ordered was conducted its results certified. company argues it can prove June fair square should therefore be decertified, un ion will spared bother second sup pose fails prove conducted; probably time it’s conducted, two years will elapsed since first Had withdrawn decertification election, the would have had no grounds filing an unfair labor practice complaint and the new election have conducted promptly. And had the company lost and wanted the initial election rein ‐ stated, it could withdrawing of precipitated unfair complaint and ob ‐ tained, determined refusal recogni ‐ tion practice, judicial review de ‐ termination. now suppose second election held company won fair square. Then judicial pro ‐
ceedings arising out first election pretermit ted. So while Board’s procedure dealing election challenges is unquestionably cumbersome Board’s refusal new election while la bor complaint pending, procedure suggested could prove even more cumbersome. For until new election held, there jurisdiction re view Board’s refusal decertify union, reviewing court can’t adjudicate dispute between (and union) over whether irreg ularities original election justified Board’s refusal accept results That adjudication must await outcome curative any findings ensue from it. In short, when orders new review first elec tion must abide second
Heartland cites footnote Arkema 2013), holding court ap peals could hold new decertification even though hadn’t ‐ been held yet. That case was different from this one, howev er, in setting aside the first election the Board had determined that unfair labor practices had been committed in that election. In this case the only unfair labor found by the Board was the withdrawal from the after the Board had set aside the result the first election ordered do over. Why that difference should allow review first election not explained in footnote (or elsewhere in Arkema opinion), so there an unresolved tension between footnote Supreme Court decisions that we cited earlier that seek encourage prompt election (when original election had been set aside) refusing deem setting aside first appealable. we know that find ing unfair labor appealable; pre unfair labor practices were only setting aside in Arkema then determination court appeals that had been wrong there been practices vindicate first election.
Although we lack jurisdiction this case setting we jurisdiction adjudicate parties’ dispute over whether employer when yet decertified first We conclude employer did commit practice. For remember when it drew recognition, potentially decisive ballot hadn’t opened, couldn’t confident it win (by tie vote); apart from other objections raised held “employers should allowed withdraw recognition merely because they harbor uncertain ty or even disbelief concerning unions’ majority status.” Levitz Furniture Pacific, N.L.R.B. “An employer may unilaterally withdraw recognition from incumbent only where has actually lost support majority bargaining unit em ployees.” Id. (emphasis added). (Oddly, Heartland cites footnote Arkema case endorses Levitz standard. at 11.)
To summarize, Board’s decertify instead ordering do over outside our jurisdiction at time, because old has vindicated proof un ion lost support majority members bar gaining unit hasn’t held. So remains certified employer must continue unless until it’s decertified. And since employer without justification withdrawn union,
E NFORCED .
Notes
[*] O f Southern District Illinois, sitting designation.