Hill-Rom Company, Inc., Petitioner/cross-Respondent v. National Labor Relations Board, Respondent/cross-Petitioner

Burger estate the real owned J.K. franchises, while Mar-

King Hardee’s management ser- provided corporation, Jo Mid- Hardee’s franchises. to the vices for Schie- income additional earned States constructing the Har- felbein Guiles The district buildings for Wolverine. dee’s Schiefelbein correctly concluded that court franchise his violation of failed to cure King. Burger agreement with of the district judgment Affirm We court. COMPANY, INC.,

HILL-ROM Petitioner/Cross-

Respondent, LABOR RELATIONS NATIONAL BOARD, Respondent/Cross-

Petitioner. 89-3721, 90-1236. Nos. Appeals, Court United States Seventh Circuit. 2, 1990. Argued Nov. March Decided unilaterally transfer

Rom decided position, and the Union work to the new filing subsequently responded by an unfair practices charge with the National labor Concluding Board. that Labor Relations action constituted an Hill-Rom’s unilateral illegal alteration bar- found that Hill- the Board 8(a)(5) (1) Rom Na- violated §§ by excluding Relations Act tional Labor QAT classification bargaining unit without from the refusing agreement of the Union agreement apply the collective The Board then employees. those en- Hill-Rom to requiring order cease tered an practice. Hill- this unfair labor and desist petitions for review of Board’s order; cross-applied for NLRB en- has of its forcement order.

I. N.L.R.B., Contempt Stewart, R. William Hill-Rom, subsidiary of Hillenbrand In- Armstrong, Branch, A. Aileen

Litigation dustries, Inc., hospital beds manufactures N.L.R.B., Ap- (argued), I. Tendrich Robert and furniture as well as other architectural Court, Litigation, Enforcement pellate industry. The care products for the health Washington, D.C. competitive is a hospital furniture market Robles, Little, James S. T. William one; only hospitals there Ind., 25, Indianapolis, for N.L.R.B., Region hospitals of these States United N.L.R.B. Acknowledging of the beds. control 80% quality of its improve it needed Yerkes, Bellamy K. Robert J. Kenneth compete effective- hospital order beds Indianapo- Thornburg, Barnes & (argued), suppliers, Hill-Rom decided ly other Co., with Ind., Inc. lis, Hill-Rom system quality control revamp its EASTERBROOK, MANION Before change, implement this Hill-Rom To KANNE, Judges. Circuit inspection duties to consolidate planned Inspector positions Inspector of its KANNE, Judge. Circuit new, non- under additional duties with program, quality control improve its To Quality Assurance classification that cer- proposed Inc. Company, Technician. recognized bar- from one tain work its in- the Union Hill-Rom informed new, into a transferred gaining units be pro- change quality assurance tent to Quality Assur- position entitled non-unit position. The creating gram However, (“QAT”). after ance Technician pro- discuss three times to parties met Hill-Rom, the union meetings with several implications for changes and their posed employees the representing Hill-Rom’s However, the employees. Local Union Workers & Casket Furniture could insisted that Union Union Upholsterers International No. to a non-unit the work (“Union”) re- America, AFL-CIO of North concerning reached was ever agreement Not- transfer. proposed work jected the changes. Hill- disapproval, withstanding the Union’s hearing, the adminis- its own conclusion impasse, to an Having that Hill-Rom determined judge law it intended trative Union Rom advised scope of unlawfully altered change had proposed implement unilaterally pointed out The ALJ April bargaining On unit. program. quality assurance in its time of their QATs spent work the 75% new 2, 1984, transferred the Hill-Rom by unit performed classifica- inspector doing previously by the two work performed time QAT positions. the other 25% new while employees, fourteen tions to applica- re- including product filled were positions new tasks These new involved fourteen, were work, twelve com- laboratory electronic tion, of these and and view remaining The par- inspectors. Both by former field work. testing, filled and ponent and were apply inspectors declined were new tasks two that these ties concede posi- to different reassigned employ- subsequently by non-unit traditionally performed of- 4s were and Inspector 3s The that tions. noted specifically judge also The ees. if and benefits higher salaries fered anti- sign of displayed no had Hill-Rom QATs. as accepted for applied and Nonetheless, citing the ov- animus. union unilaterally removed employee was No unit by the old performed the duties erlap of to leave or forced bargaining unit from the Board determined the positions, new and it. QATs should Inspectors cum that unit. bargaining members un- considered 1984, filed an 6, the Union April On against charge practices labor fair administrative the affirmed Board The had company violat- Rom, the alleging that 21, 1989. on November decision judge’s agreement bargaining collective ed their Inc., No. Co., NLRB 297 bargaining unit removed twelve it when the of affirmance Board’s Following the De- Quality Assurance from the positions decision, Hill- judge’s law administrative the Regional Director of The partment.1 The petition for review. filed its arbitration, as the case Board referred enforce- for cross-petitioned later Board agree- bargaining parties’ specified the of order. ment would defer that it ment, indicated and findings. At the arbitra- the arbitrator’s II. in favor found arbitrator hearing, the tion reasoning dispute “the transfer Hill-Rom, do not in this case parties of The to the which inspection is, duties contest final but law rather the what the did not violate situation. classification factual to this non-unit apply should law bargaining consti- language its actions recognition [their contends the Accordingly, because agreement].” of work out a lawful tuted impasse and requirements had company unit, within bargaining animus, arbitra- v. anti-union harbored forth set actions were Hill-Rom’s Cir.1985). The (7th tor concluded NLRB, 942 514 F.2d parties’ did not violate hand, reasonable insists that Board, other on the agreement. alteration an unlawful constitutes case defined unit as bargaining scope of the however, arbitration, Following this Corp., 721 Shipbuilding Bay by NLRB not defer that it would concluded Therefore, we be- a F.2d then It issued decision. the arbitrator’s reviewing principles analysis by gin our hearing. At complaint and notice drivers, salesmen, employees, truck clerical parties to been the Union have 1. Hill-Rom watchmen, mechanics, engineers, fire- agreements. garage bargaining collective series depart- agree- men, painters, carpenters, research "Recognition” clause Under ment, employ- supervisory agreed parties that: and all ment recognizes Union as Company ees. The pur- representative agreement does bargaining and exclusive collective sole The bargaining respect to work poses specifying that certain provision of collective include work, other wages, hours pay, were covered rates or titles classifications conditions, production and working for all agreement. except for office employees, maintenance Newspaper upon by parties. subtle distinction between Printing underlying NLRB, Corp. from a transferring 956, 625 F.2d denied, changing Cir.1980), of a cert. 911, 450 U.S. 1349, unit. The Ida (1981); S.Ct. 67 L.Ed.2d 335 Statesman, ho also 836 F.2d at 1400. See potential topics of collective Corp., Boise Cascade 474-77; 860 F.2d at bargaining2 generally fall within three . Newport Shipbuilding News Dry& Dock mandatory subjects, classifications: broad Co., 73, (4th Cir.1979); 602 F.2d Shell illegal permissive subjects subjects. Co., 988, Oil (1972), N.L.R.B. enf'd generally NLRB v. Wooster Div. See nom., NLRB, sub OCAW v. 1266, 486 F.2d Borg-Warner Corp., 356 U.S. 78 S.Ct. (D.C.Cir.1973). 1268 Accordingly, once a (1958); The Idaho 718, 2 L.Ed.2d 823 specific job has been included within the NLRB, 1396, v. 836 F.2d 1400 Statesman scope bargaining by of the unit either Enterpris See also Facet (D.C.Cir.1988). parties, Board action or consent of the es, NLRB, 963, Inc. v. 907 F.2d 975 employer unilaterally cannot remove or Cir.1990). Mandatory subjects, over which modify securing without first employer and the union are obli both consent the union or the Board. faith, bargain good speci gated to are Bay Shipbuilding Corp., 721 F.2d at 191. 8(d) “wages, the NLRA as fied § Statesman, also See The Idaho 836 F.2d at hours, terms and conditions of and other 1400; Hess Corp. Oil & Chemical v. 158(d). See employment.” 29 U.S.C. § NLRB, 440, (5th Cir.1969), 415 F.2d 445 Paper Corp. Products v. also Fibreboard denied, 916, cert. 920, 397 U.S. 90 S.Ct. 25 NLRB, 379 U.S. 203, 210, 398, 402, 85 S.Ct. (1970). why L.Ed.2d 97 The reason the law Enterprises, Facet (1964); 13 L.Ed.2d 233 changes disfavors unilateral in the unit de employer If 907 F.2d at 975. an and a scription simple is as as it is fundamental: bargain good faith a manda union over employer vary descriptions if an could during tory subject impasse but reach an will, power at it would have the to sever negotiations, employer may then their recognizable the link group between a proposal implement unilaterally its without employees and union as the collective Pipe the union’s consent. Trustees Col. bargaining representative employ of these v. Indus. Pension Trust Howard Elec. & “This, turn, ees. would have the effect Mechanical, Inc., 1379, 909 F.2d undermining both of a basic tenet of union — denied, U.S.-, Cir.1990), cert. recognition bargaining in the con collective 958, (1991); Facet 112 L.Ed.2d 1046 S.Ct. greatly complicating text and of coherence Enterprises, 907 F.2d at 975 n. 2. Permis Boise Cas negotiation process.” in the contrast, subjects, by sive are those which Corp., 860 F.2d at 474-75. cade 8(d) scope of fall outside the cannot § implemented by employer without altering scope Unlike the of a bar Boise Cascade approval. union or Board unit, a transfer of work out of a NLRB, 471, Corp. v. F.2d 475-76 by employer ordinarily an constitutes a (D.C.Cir.1988). Illegal subjects simply Facet mandatory subject bargaining. federal, proscribed by ap those or where Enterprises, Newspaper 975; 907 F.2d at propriately applied, state law. The Idaho Printing Corp., 625 F.2d at 964. Uni In Statesman, F.2d at 1400. Chicago, this court set forth the versity of basic circumstances under which work scope There is no doubt that the mandatory a transfers would be treated as employees’ bargaining permis unit is a subject during negotiations: subject bargaining, regardless sive [Ujnless specifically prohib- previously whether the unit has certi transfers are been an em- voluntarily agreed bargaining agreement, fied the Board or ited 8(d) respect wages, good 2. Collective as: converse in faith with § is defined in hours, of em- and other terms and conditions performance obligation of the mutual ployment. employer representative and the 158(d). 29 U.S.C. § to meet at reasonable times and offered and twelve of fourteen were ployer is free to transfer out (1) accepted jobs. employer if: com- We overruled bargaining unit University’s plies Paper Products Board’s determination that with Fibreboard 203, NLRB, an proposal 85 S.Ct. 398 was unlawful alteration U.S. [13 (1964) by bargaining proceeded scope L.Ed.2d 233] (2) the em- good impasse; University’s faith under to examine the conduct ani- ployer is not motivated anti-union two-pronged analysis. work transfer mus, Darlington Textile Workers Chicago, 514 F.2d at 948-47. University of Co., 263, 85 S.Ct. 994 Mfg. 380 U.S. specifi- [13 Finding that the transfer was (1965). L.Ed.2d prohibited bargaining agree- cally 827] ment, University’s concluded that the we Boeing Compa- 514 F.2d at 949. also See legitimate (9th proposal was work transfer NLRB, F.2d 796-97 ny v. proposal since good impasse reflect- faith an without Distinguishing between any at ing motive of anti-union animus. Id. and an alteration in of work unit, however, easy In is not an task. argues any the for appeal, this unable to discern basis We are by ac distinguishing error case the Board committed reversible this from facts new cepting holding conclusion that the In a University Chicago. AU’s in of QAT ly positions reflected an alter virtually mirroring created that in factual scenario bargaining ation in the of the unit. University Chicago, of the four- twelve of Hill-Rom, no According to the Board had employees off teen Hill-Rom who were laid interpreting legal grounds proposal its accepted QAT positions applied for and than a lawful work anything as other employees The Hill-Rom outside the unit. governed should be transfer therefore jobs accept left the unit to the new who by University Hill-Rom sub Chicago. buildings in same in which worked of to mits it not been found should have before, employees did had worked as agree. the NLRA. We violate Significantly, the University Chicago. of no in this case likewise found that AU argument support To that Hill-Rom its provision bargaining of the collective scope of unlawfully altered the the bar- agreement precluded Hill-Rom from trans- unit, repeatedly points ferring out and that Hill- of work QAT work included out that 75% bargained proposal good its faith to Rom previously performed duties were which alleged, impasse. an The Union has never inspector In our classifications. former find, nor did the AU or Board ever view, however, previously assigning work any by Hill-Rom was motivated anti-union by employees to em- performed unit other Indeed, Hill- University, like the animus. perfectly ployees outside the unit is consist- clearly proposal its established that by ent with transfer of work as construed solely by in- motivated its desire to was University In University Chicago.3 efficiency in services. In crease the employer unilaterally trans- Chicago, noteworthy light parallels, con- we janitorial work out of bargain- ferred all applying in- clude that Board erred ing into unit in order to another principles of efficiency University Chicago a re- crease the service. As off, sult, laid but the instant case.4 fourteen (decision (1986) illustrating trans- No. 149 cases lawful work N.L.R.B. 3. For other fers, bargaining Company, No. 70 unit to a su- see Kohler 292 N.L.R.B. unit work outside (1989) (employer’s employee mandatory subject pervisory of stock clerk and removal is layout bargaining bargaining). unit are mandato- work from ry subjects bargaining, where reclassifi- even issue, unit); Although bargaining Fish it devotes little time to has on Dahl cation effect (1986) (decision attempt distinguish Uni- make an Company, 279 No. 150 Board does N.L.R.B. Chicago plant versity present from the facts of to another outside transfer unit work first, mandatory grounds: University subject of mere- is a case on two ly the bargaining); Inc., bar- Enquirer, from union to another transferred work The Cincinnati “Inspector proper application A 4” turned “Quality into Assur- ance fully supports Hill-Rom’s conten- Technician.” Hill-Rom great- wanted (1) flexibility assignments er did the NLRA: both tion that it not violate incen- tives than bargaining agree- its collective provision of the collective ment with the union prohibited Many allowed. an agreement Hill-Rom from trans- employer chafes work; (2) under the work rules and ferring pay structures (3) agree- embedded such proposal good impasse; faith Employers may (or ments. believe find it allegation is no that Hill-Rom there acted believe) in their interest that new ar- animus. Both the under anti-union ALJ rangements good would be for both labor and the Board determined that 25% management but that the union resists QATs performed by was different mutually changes. even beneficial performed by from that the two former Rom reached put this conclusion and it to inspector provisions, and that these new bargaining. test direct After the required duties additional train- substantial proposed union balked at the change, Hill- ing of which was conducted de- —some Rom made directly its offer to the employ- greed engineers. electronic These new ees. It pay described duties and of a encompassed qual- duties different kinds of “Quality posi- Assurance Technician”—a work, ity including product assurance re- tion that would any jur- be outside union’s work, laboratory view electronic com- inspectors isdiction—and invited the ap- work, ponent testing, and field duties ply. Twelve of the fourteen did. previously which were all conducted personnel. non-unit therefore hold that We ways There are two to characterize what implementation QAT pro- Hill-Rom’s happened. One is that the employer gram constituted a lawful transfer of work changed scope the unit. meaning University the within Chica- Inspectors, initially juris- within the union’s go.5 diction, have been removed from it. The employer changed

other is that assignment leaving of work while the bar- III. work, gaining Inspection unit alone. ini- Deny foregoing For reasons we En- tially assigned employees represented to forcement of the National Labor Relations union, assigned has been to against Board’s cease and order desist spurned representation. who have These Company, Inc. dramatically characterizations have differ- legal consequences. ent Because the EASTERBROOK, Judge, Circuit “permissive” of the unit is a rather than dissenting. “mandatory” bargaining, subject the un- Company, (subject dissatisfied with the has a veto ion to override inspectors, changed NLRB). By refusing accept employ- work of their to duties, pay, “Inspector proposal jurisdiction, and title. 3” and er’s the union about union; gaining and, second, represented by technology. a different unit and non-unit was the use of perma- Otherwise, the case did not involve the jobs Bay were still the same. existing job nent removal of an from a 190; Shipbuilding, 721 F.2d at United Technolo representative scope newly union’s to a created gies, Bay Shipbuilding 884 F.2d at 1573. significantly changed, which was not Technologies using United that declare technolo representation. but for the lack of union We gy complete job to the same is an insufficient support fail to find for either distinction in the posi basis to differentiate unit from non-unit case law. above, explained tions. As more than technolo gy distinguishes QATs inspectors. from There Bay Ship 5. The NLRB’s reliance on NLRB v. fore, appropriate rely analy it is more on the (7th Cir.1983) building, 721 F.2d 187 and NLRB University Chicago, sis in a which involved (2d Technologies Corp., v. United F.2d employees performing a transfer of work Cir.1989) misplaced. Bay Shipbuild is In both job, Bay Shipbuilding different than on or Unit ing Technologies and United the court found Technologies, a ed which involved transfer of support substantial evidence on the record to employees performing finding primary work to the same the NLRB’s that the difference jobs employers using technological between the that the as advances. classified old work shoes of simply stood changes. making firm from prevents not That is bargaining unit.” in the man- title contrast, is a work, by Assignment of change; understanding of an inevitable bar- After bargaining. subject of datory understanding. the best it is (as not perhaps impasse good faith to ac- us to requires review its final But deferential may put employer did), an cept it. unilaterally. into force offer deciding if Proceeding as we prefers union say, the Needless prefer the novo, colleagues my competing characterizations case de first that They say Hill-Rom employer’s while characterization. jurisdiction) (change be assignment cannot reassignment at Hill-Rom (change second trumpets the jani- reassignment of- difficulty distinguished is that from work). The thing. “work put here, the same court that our ten, come torial work superiors our Cases, including assignment” decisions bin. jur- is It establish hierarchy, judicial NLRB, F.2d sub- permissive from case distinguish are our questions isdictional hard indeed assignment bargaining and distinguish jects of harder It is even that one. subjects of bar- mandatory are Technolo- disputes v. United from NLRB our case court nor our the NLRB Cir.1989), Neither gaining. (2d Corp., 884 F.2d gies when this. Yet about anything Corp., can do Shipbuilding Bay NLRB category in either put facts can same Cir.1983), which sifted F.2d 187 col- the distinction plausibility, equal with “jurisdictional into reassignments the same equal to things Two lapses. cases three change” bin. None yet we equal to each thing are other — define problem; rather solves countermand authority we cannot told solve. for the problem equal. they are Ship- Shipbuilding. Bay with Start comes all When done? is to be What the amount minimize seek to wrights characterization, the ato battle down make metal to they cut scrap when created choice Neither must choose. fact trier “lofting.” Un- is called process parts. wrong, as because be condemned can manually. lofting recently was done til is variety there contests rhetorical parts and models built Someone next by the wrong. right or Review Today by hand. them around moved is corre hierarchy tribunals in the level Feed the computer. may done work & E.g., Cooter spondingly deferential. memory, its parts into dimensions 384, 110 496 Corp., U.S. v. Hartmarx Gell arrange- which computer decides and the (1990); 2457-61, 110 2447, L.Ed.2d 359 S.Ct. scrap the amount minimize ment will 557-63, 552, Underwood, U.S. 487 Pierce lofting Lofting by hand and metal. 2545-49, 101 L.Ed.2d S.Ct. in common skills require some computer 602, 604- 792 F.2d King, (1988); Mucha Shipbuild- Bay skills. different some but Corp. v. Cir.1986); Down Scandia computer as lofting by ing established 1423, 1427-29 Inc., F.2d Euroquilt, both gradually moved and job accorded deference Add the to manual employees from and work it is Board’s decisions—for the Labor out- position lofting latter electronic —the courts, that Con Board, not the held Board The domain. union's side the of labor the resolution delegated has gress jurisdiction union’s altered that this has done?” is to be disputes “what —and statute, we enforced violation the Board way Whichever simple answer. the difference to see hard It is order. The its order. decides, enforce digi- from manual the transfer between existed differences “whatever found “Inspector transfer from lofting and the tal as quality inspector the final between Technician.” “Quality Assurance 4” to resulted classifications technician surance Ship- Bay like Technologies, United job change ... technological from a claim case, presented our building and un significantly remained functions reassign- change followed technological title Accordingly, the new changed. Technologies My colleagues right ment of work. United em- to think it hard distinguish ployed “expediters,” University who were about from supposed parts of vital Hill-Rom’s case. But it is know location easier to do so distinguish than it is supply get production Bay them to Shipbuilding short or prevent employed Technologies. United lines to idle time. It also Neither Local 321 nor clerks,” jurisdiction Local 1657 had “production inventory of all who janitorial University. work at the parts. inventories of these The Before maintained transfer, and after the each represent- local jurisdiction expediters union’s included the ed some janitors. but not all of the Each Technologies not the clerks. but United jurisdiction union’s was defined refer- arrangement unsatisfactory, found the component ence to the employ- which its part because the clerks’ information could jurisdiction, ees served. Local 321’s day be a whole behind. It created a new example, “[sjervice included and mainte- merging expediters’ attributes of the nance Depart- classifications the Plant duties with the clerks’ and invited both ment”. 514 F.2d at Moving some apply. exped- Within a short time 77 of the custodial work from the Department Plant changed jobs. had iters United Technolo- Biological to the Sciences Division did not gies deemed the new outside the jurisdiction, affect that although it meant jurisdiction, union’s but the Board held oth- represent that Local 321 would a smaller erwise, appeals and the court of enforced proportion University’s phalanx of Any that order. distinction between the janitors. It was correspondingly hard to change change at Hill-Rom and the at change jurisdiction find a in the of either Technologies per- United is too small to local. ceive. recognition Contrast clause pepper Dozens of similar cases agreement between Hill-Rom and Local only I books. The other one shall mention Company recognizes 525: “The the Union Chicago, is which holds cen- as the sole and representative exclusive ... stage majority’s opinion. ter The production for all its and maintenance em- University Chicago Hospitals and Clinics ployees, except for office and clerical em- buildings. Dispensaries, is a warren of ployees department ... research employ- rooms, laboratories, operating recovery ees, supervisory employees.” and all offices, and classrooms are scattered about formula except “all ...” is sub- complex. janitors working Until 1971 stantially comprehensive more than a for- University’s Biological for the Di- Sciences “[sjervice mula such as and maintenance represented by vision and Local 1657 Department”. classifications in the Plant portions complex cleaned the devot- Hill-Rom needed to establish that patients, janitors working ed to while “Quality Assurance Technicians” were “re- University’s Department rep- Plant department employees”; only search such portions resented Local 321 cleaned the a characterization would take them outside devoted to An offices classrooms. representation the union’s without archway long might in a hall mark the change jurisdiction. in the union’s Yet the point. transition Frustrated the ineffici- “research”; employees were not shifted to ency arrangement entailed in the and the inspectors the same as before Department’s Plant low standards of clean- So, rate, grandiloquent any with titles. at (more School, liness suited to the Law found, the Board and therefore we should paper where is the most serious contami- enforce its order. nant), Biological told the Division to clean the Sciences whole com-

plex. extra’janitors The Division needed

comply, away and it hired some from the Department. University

Plant characterizes this as work transfer rather jurisdictional than a shift.

Case Details

Case Name: Hill-Rom Company, Inc., Petitioner/cross-Respondent v. National Labor Relations Board, Respondent/cross-Petitioner

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Mar 6, 1992

Citation: 957 F.2d 454

Docket Number: 89-3721, 90-1236

Court Abbreviation: 7th Cir.