NLRB v. Contemporary Cars, Inc.

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 14-3723 & 15-1187
CONTEMPORARY CARS, INC. doing business as MERCEDES-BENZ
OF ORLANDO and AUTONATION, INC., single and joint employ-
ers,
Petitioners/Cross-Respondents,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent/Cross-Petitioner,
and
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE
WORKERS,
Intervening-Respondent.
____________________
Petition for Review and Cross-Application
for Enforcement of a Decision and Order of
the National Labor Relations Board
Nos. 12-CA-026126, 12-CA-026233, 12-CA-026306,
12-CA-026354, 12-CA-026386 & 12-CA-026552
____________________
ARGUED SEPTEMBER 24, 2015 — FEBRUARY 26, 2016
2 Nos. 14-3723 & 15-1187
____________________
Before MANION, ROVNER, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. This case involves a car dealer-
ship and its parent company’s efforts to frustrate their em-
ployees’ rights to organize. An administrative law judge
found that the petitioner-employers engaged in a series of un-
fair labor practices aimed at coercing their employees’ choices
in the run-up to a December 2008 union election and frustrat-
ing their employees’ protected concerted activities after the
election. The judge also found that petitioners fired an em-
ployee due to anti-union animus and after the election unlaw-
fully made multiple changes to employees’ working condi-
tions without bargaining with the union. The National Labor
Relations Board largely affirmed the judge’s order. It adopted
the judge’s findings of fact and all but one conclusion of law,
and it expanded one remedy the judge ordered.
The employers have petitioned for judicial review. The
Board has cross-petitioned for enforcement of its order. Hav-
ing reviewed the extensive record of the numerous charges in
this case, we deny the employers’ petition and enforce the
Board’s order in its entirety. 1
Specific issues are numerous. In Parts I and II, we lay out
the factual and legal backgrounds relevant to this case. In Part
III we review the findings that petitioners violated § 8(a)(1) of
the National Labor Relations Act (“the Act”) by interfering
1 The union declined to take part in this petition for judicial review.
Nos. 14-3723 & 15-1187 3
with their employees’ rights to organize a union and to en-
gage in concerted activity for mutual aid or protection. In Part
IV we review the finding that petitioners violated § 8(a)(3) of
the Act by firing an employee due to anti-union animus. Fi-
nally, in Part V we review the findings that petitioners vio-
lated § 8(a)(5) of the Act by failing to bargain with the union
over changes they made to terms and conditions of employ-
ment.
I. Factual and Procedural Background
Petitioner Contemporary Cars, which we call the “dealer-
ship,” does business as Mercedes-Benz of Orlando and sells
and services cars in Maitland, Florida. Bob Berryhill, the deal-
ership’s general manager, is responsible for the dealership’s
overall operations. Petitioner AutoNation owns the dealer-
ship, as well as over 200 other dealerships throughout the
United States.
This case focuses on the dealership’s service department.
The service department had thirty-seven technicians as of Oc-
tober 2008, although it has since shrunk to twenty-five. The
dealership divided technicians into three teams, each super-
vised by a team leader. The dealership paid technicians by the
job rather than by the hour: it assigned each service task a spe-
cific number of hours—a “book time”—and paid a technician
for those hours regardless of how long the job actually took.
Thus, if business in the service department was slow, techni-
cians sat idle and took home less pay. A technician’s “skill rat-
ing,” a letter grade from D to A with “diagnostic” technician
above A as the highest level, determined earnings per book
hour.
4 Nos. 14-3723 & 15-1187
Rumors of union organizing at the dealership had been
circulating for years. In the summer of 2008, the International
Association of Machinists began a campaign in earnest to or-
ganize the service technicians. Over the summer, the techni-
cians talked among themselves and held off-site meetings.
Technician Anthony Roberts emerged as one leader of this
campaign, frequently talking to his fellow employees about
the union. The union supporters kept their meetings rela-
tively quiet. Higher levels of dealership management seem
not to have known about the union effort, but team leader An-
dre Grobler must have known. On two occasions over the
summer, Grobler commented to a technician that the techni-
cian must have been in a rush to get to a union meeting.
In late September 2008, general manager Bob Berryhill
found out about the organizing drive. On September 25, he
began calling service technicians into his office for individual
meetings. During those meetings, Berryhill asked the techni-
cians about the union activity. He also asked them if they had
any problems with how things were run at the dealership. Ac-
cording to one technician, Berryhill said he was working on
the problems the technician brought up.
On October 3, 2008, the union filed its representation peti-
tion. The Board’s Regional Director held a hearing, approved
the proposed bargaining unit, and an election was scheduled
for December 16. The dealership sought review of this deter-
mination, and a two-member panel of the Board summarily
denied the request.
In the weeks before the election, Berryhill and AutoNation
vice president and assistant general counsel Brian Davis held
group meetings and distributed literature to “educate” the
technicians on the effects of having a union. At one of these
Nos. 14-3723 & 15-1187 5
meetings, Davis encouraged employees to call him if they had
any concerns that management was not addressing. In the
run-up to the election, Davis visited the dealership often.
Shortly before the election, he approached one technician to
ask how he felt about the union’s chances. Team leader Gro-
bler’s interrogation of employees also continued. On Decem-
ber 9, one week before the election, general manager Berryhill
held an unscheduled meeting on the service shop floor. He
announced that the dealership was working on fixing prob-
lems the technicians had and that he was replacing two team
leaders, Grobler and Oudit Manbahal, with new team leaders.
Like many businesses, the dealership encountered tough
economic times in the second half of 2008. From October to
November, the service department’s gross profit dropped
from $414,000 to $295,000. November 2008’s profits were the
worst the dealership’s controller could recall. Sometime in
2008, AutoNation area manager Pete DeVita began talking
with Berryhill about “right-sizing” the dealership. In October
or November 2008, Berryhill began talking with other manag-
ers at the dealership about laying off technician Anthony Rob-
erts, who was then playing a leading role in the union organ-
izing. On December 8, 2008, about a week before the union
election, the dealership laid off Roberts, though Roberts had
a higher skill rating, more hours, and more seniority than
many other technicians. The dealership also laid off one tire
technician and one alignment technician at that time.
Throughout the union campaign, one pro-management
technician, James Weiss, reported to Berryhill regarding the
union effort. The administrative law judge did not credit
Weiss’s testimony that he engaged in anti-union activity at
6 Nos. 14-3723 & 15-1187
management’s request, but the judge did credit, and substan-
tial evidence supports, that Weiss reported information to
management whether management asked for it or not.
On December 16, 2008, the technicians voted in favor of
unionizing, but as explained below, the dealership contested
the result. The economic woes continued into 2009, and the
service department’s decline in business accelerated. In Feb-
ruary, without attempting to bargain with the union, the deal-
ership reduced the “book times” for some pre-paid mainte-
nance jobs. According to the dealership, these were “technical
corrections” because, previously unnoticed by the dealership,
new pre-paid maintenance plans reduced the amount of work
required for each job as compared to the prior plans. That
spring, also without bargaining, the dealership temporarily
suspended the technician skill level reviews it had used to de-
termine rates of pay. Finally, again without bargaining, the
dealership laid off four more service technicians in April 2009.
Litigation of the union election has reached the United
States Courts of Appeals twice already. After the election, the
dealership challenged the certification of the union as the ex-
clusive representative of a bargaining unit consisting of ser-
vice technicians. In 2009, a two-member panel of the Board
affirmed the certification. Contemporary Cars, Inc., 354 NLRB
No. 72 (2009). The dealership petitioned for judicial review.
The D.C. Circuit held the appeal in abeyance pending the Su-
preme Court’s decision on actions by two-member panels of
the Board. In 2010, after the Supreme Court held that the Act
requires the Board to decide cases with a minimum of three
members, New Process Steel, L.P. v. NLRB, 560 U.S. 674, 676
(2010), a three-member panel of the Board set aside the 2009
two-member Board ruling. Six days later, the original two
Nos. 14-3723 & 15-1187 7
members plus a third issued a new order affirming the Re-
gional Director’s determination. Contemporary Cars, Inc., 355
N.L.R.B. 592 (2010). In 2012, the Eleventh Circuit enforced the
2010 Board order. NLRB v. Contemporary Cars, Inc., 667 F.3d
1364, 1373 (11th Cir. 2012).
These unfair labor practice proceedings began in 2010
when the Board’s general counsel filed a complaint alleging
that the dealership and AutoNation had violated sec-
tions 8(a)(1), (3), and (5) of the National Labor Relations Act.
29 U.S.C. § 158(a)(1), (3), (5). In 2011, an administrative law
judge found after an evidentiary hearing that the dealership
and AutoNation had indeed violated the Act by interfering
with their employees’ protected rights to engage in concerted
activity and to organize a union, by firing Anthony Roberts
due to anti-union animus, and by failing to bargain with the
union over mandatory subjects of bargaining. In 2012, the
Board affirmed the administrative law judge’s order with only
two minor corrections. The Board expanded one remedy or-
dered by the judge and corrected one conclusion of law,
thereby reviving one § 8(a)(1) charge that had been dismissed
by the judge. Contemporary Cars, Inc., 358 NLRB No. 163
(2012).
The dealership and AutoNation petitioned to our circuit
for judicial review. In 2014, the Supreme Court issued a deci-
sion holding that two of the Board members who decided the
2012 case had been appointed unconstitutionally. NLRB v.
Noel Canning, 573 U.S. —, 134 S. Ct. 2550, 2557 (2014). In light
of Noel Canning, we vacated the Board’s 2012 decision and re-
manded for further proceedings. In 2014, the Board issued an
order consistent with and incorporating by reference its 2012
order. Contemporary Cars, Inc., 361 NLRB No. 143 (2014). This
8 Nos. 14-3723 & 15-1187
petition for judicial review and cross-petition for enforcement
followed.
II. Legal Framework and Standard of Review
The National Labor Relations Act protects employees’
rights to organize a union and to engage in “concerted activi-
ties for the purpose of collective bargaining or other mutual
aid or protection.” 29 U.S.C. § 157. Section 8(a)(1) of the Act
makes it an unfair labor practice for an employer to “interfere
with, restrain, or coerce employees in the exercise” of these
rights. 29 U.S.C. § 158(a)(1). Section 8(a)(3) makes it an unfair
labor practice to discriminate in hiring, “tenure of employ-
ment or any term or condition of employment to encourage
or discourage membership in any labor organization.”
§ 158(a)(3). And § 8(a)(5) makes it an unfair labor practice for
an employer to refuse to bargain collectively with the employ-
ees’ representative. § 158(a)(5). The Act empowers the Board
to find that a person or company has engaged in unfair labor
practices, and it gives the Board broad discretion to remedy
unfair labor practices to “effectuate the policies” of the Act.
§ 160(a), (c).
The dealership and AutoNation petitioned under § 160(f)
to modify or set aside the Board’s order finding that they en-
gaged in unfair labor practices. The Board cross-petitioned
under § 160(e) to enforce its order. We may enforce, modify
and enforce as modified, or set aside in whole or in part the
Board’s order. § 160(e), (f).
Our review of a Board order is deferential. We review the
Board’s factual findings to see if they are supported by sub-
stantial evidence. Id. We consider the entire record and will
affirm if we find “such relevant evidence that a reasonable
Nos. 14-3723 & 15-1187 9
mind might accept as adequate to support the conclusions of
the Board.” NLRB v. Teamsters “General” Local Union No. 200,
723 F.3d 778, 783 (7th Cir. 2013) (citation and internal quota-
tion marks omitted). This requires “more than a mere scin-
tilla” of evidence, International Union of Operating Engineers,
Local 150 v. NLRB, 325 F.3d 818, 828 (7th Cir. 2003) (citation
and internal quotation marks omitted), but we do not reweigh
the evidence, NLRB v. KSM Industries, Inc., 682 F.3d 537, 543–
44 (7th Cir. 2012). Rather, we determine only whether “there
is evidence in the record supporting the Board’s outcome that
could satisfy a reasonable fact finder.” Id. The presence of con-
trary evidence does not compel us to reverse the Board’s order
as long as there is also substantial evidence supporting it.
Teamsters “General” Local Union No. 200, 723 F.3d at 783.
Because the Board has the principal responsibility for in-
terpreting and enforcing the Act, we do not overturn the
Board’s conclusions of law so long as they have “a reasonable
basis in law.” Roundy’s Inc. v. NLRB, 674 F.3d 638, 645 (7th Cir.
2012) (citation and internal quotation marks omitted); see also
Ford Motor Co. v. NLRB, 441 U.S. 488, 496 (1979); NLRB v. Local
Union No. 103, International Ass’n of Bridge, Structural & Orna-
mental Iron Workers, 434 U.S. 335, 350 (1978). And we give par-
ticular deference to the Board’s credibility determinations,
which we will disturb only in extraordinary circumstances,
such as obvious incredibility or clear bias. Teamsters “General”
Local Union No. 200, 723 F.3d at 783; Bloomington-Normal Seat-
ing Co. v. NLRB, 357 F.3d 692, 695 (7th Cir. 2004).
Where the Board has adopted the administrative law
judge’s findings of fact and conclusions of law, we review the
judge’s determinations under the same standard we apply to
a Board decision. Teamsters “General” Local Union No. 200, 723
10 Nos. 14-3723 & 15-1187
F.3d at 783. Here, the Board summarily adopted most of the
administrative law judge’s findings of fact and conclusions of
law, but with a few exceptions.
III. Section 8(a)(1) Violations
The administrative law judge found, and the Board af-
firmed, that the dealership and AutoNation in a number of
instances acted unlawfully to frustrate their employees’ pro-
tected rights to engage in concerted activity and to organize a
union. The judge’s findings are supported by substantial evi-
dence and have a reasonable basis in law.
We analyze each unfair labor practice below. We start by
reviewing the findings of coercive activity in violation of
§ 8(a)(1) in the run-up to the union election. We then review
findings of several § 8(a)(1) violations after the election.
A. Surveillance, Interrogation of Employees, and Solicitation of
Grievances in the Run-up to the Election
Substantial evidence supports the administrative law
judge’s findings that the dealership violated § 8(a)(1) in the
run-up to the election by coercively creating an impression of
surveillance of union activity, interrogating employees about
union activity, and soliciting and promising to remedy em-
ployee grievances. Employer conduct that “reasonably tends
to interfere with, restrain, or coerce employees in the free ex-
ercise of their protected rights” violates § 8(a)(1) of the Act.
NLRB v. Q-1 Motor Express, Inc., 25 F.3d 473, 477 (7th Cir. 1994)
(citation and internal quotation marks omitted). Coercion
need not be successful to be an unfair labor practice. Id.
Nos. 14-3723 & 15-1187 11
1. Creating an Impression of Surveillance
A company commits an unfair labor practice if it creates
the impression that employees’ union activities are under
management surveillance. NLRB v. Gold Standard Enterprises,
Inc., 679 F.2d 673, 676 (7th Cir. 1982) (company created an un-
lawful impression of surveillance when manager told an em-
ployee that he knew “all about” a union meeting and told an-
other employee that he knew two employees had gone to the
meeting). Under Board precedent, this occurs when an em-
ployee “reasonably could conclude” from the circumstances
that surveillance was taking place. Sam’s Club, 342 N.L.R.B. 620,
620 (2004). The administrative law judge found that in July
and August 2008, Grobler created a coercive impression of
surveillance when he commented on technician Juan Ca-
zorla’s attendance of union meetings.
Cazorla testified that in July 2008, Grobler asked why he
was in such a rush to leave work and then answered his own
question, suggesting that Cazorla had “that meeting” to go to.
Cazorla pretended not to know what Grobler was talking
about, although he was in fact rushing to get to a union meet-
ing. Again in August 2008, Grobler commented to Cazorla
that he had “better rush” since he had a meeting, although
Cazorla was not going to a union meeting at that time. Em-
ployees opposed to the union, such as James Weiss, were un-
able to find out when and where union meetings were held.
It would have been reasonable for Cazorla to infer from Gro-
bler’s comments that his union activities were under manage-
ment surveillance. Substantial evidence supports the Board’s
finding that the dealership violated § 8(a)(1) by creating an
impression of surveillance.
12 Nos. 14-3723 & 15-1187
2. Interrogation of Technician Puzon
Substantial evidence also supports the administrative law
judge’s finding that, in October 2008, team leader Grobler co-
ercively interrogated technician Larry Puzon about his union
activity. Whether interrogation is coercive depends on the cir-
cumstances of the questioning, including “the tone, duration,
and purpose of the questioning, whether it is repeated, how
many workers are involved, the setting, the authority of the
person asking the question, and whether the company other-
wise had shown hostility to the union.” Multi-Ad Services, Inc.
v. NLRB, 255 F.3d 363, 372 (7th Cir. 2001). Other important fac-
tors are whether guarantees against reprisals accompany the
questioning and “whether the interrogated worker feels con-
strained to lie or give noncommittal answers rather than an-
swering truthfully.” Id.
Here, Puzon testified that three or four times starting in
October 2008, Grobler asked him one-on-one about his at-
tendance at union meetings. All the interrogations occurred
immediately after group meetings with AutoNation vice
president Brian Davis, who led the company’s opposition to
the union. Puzon denied having attended union meetings, al-
though he had, because he knew that Grobler was “for man-
agement.” The judge credited Puzon’s testimony about the in-
cidents. Many factors thus support the judge’s finding of co-
ercive interrogation in violation of § 8(a)(1) of the Act: the tim-
ing of the questioning after management’s union “education”
meetings, the multiple unfair labor practices committed by
the dealership in the run-up to the election, the lack of guar-
antees against reprisals for union support, and the fact that
Puzon felt compelled to lie about his union support. We af-
firm the Board’s finding on this violation.
Nos. 14-3723 & 15-1187 13
3. General Manager Berryhill’s Interrogations and Solici-
tation of Grievances
Substantial evidence supports the Board’s finding that the
dealership violated § 8(a)(1) when general manager Berryhill
coercively interrogated employees. Several technicians testi-
fied that on September 25, 2008, Berryhill called them individ-
ually into his office and asked them about union activity. The
dealership’s service director was also present. Berryhill admit-
ted that the meetings happened. The setting of the meetings
in Berryhill’s office, Berryhill’s and the director’s positions of
authority, and the fact that each technician was alone and out-
numbered by managers all support the finding of coercion.
See Multi-Ad Services, 255 F.3d at 372 (listing factors indicating
coercion).
An employer’s solicitation of grievances along with ex-
press or implied promises to adjust those grievances with the
aim of frustrating employees’ concerted activity also violates
§ 8(a)(1). NLRB v. Berger Transfer & Storage Co., 678 F.2d 679,
691 (7th Cir. 1982); see also NLRB v. Exchange Parts Co., 375
U.S. 405, 409 (1964) (holding that the Act “prohibits not only
intrusive threats and promises but also conduct immediately
favorable to employees which is undertaken with the express
purpose of impinging upon their freedom of choice for or
against unionization and is reasonably calculated to have that
effect.”). An employer’s aim to frustrate concerted activity can
be inferred from the “context of the events” surrounding the
employer’s promise. NLRB v. Gerig's Dump Trucking, Inc., 137
F.3d 936, 941 (7th Cir. 1998); see also Simpson Electric Co. v.
NLRB, 654 F.2d 15, 17 (7th Cir. 1981) (“This rule is easier to
state than apply, for an employer who means to influence an
election will rarely say so, and his intent must be determined
14 Nos. 14-3723 & 15-1187
by weighing the credibility of his denial against the attendant
facts and circumstances he invites attention to.”).
Substantial evidence supports the Board’s finding that
Berryhill unlawfully solicited employee grievances and
promised at these meetings to remedy them. Multiple techni-
cians testified that at the September 25 meetings, Berryhill
asked the technicians how the dealership could improve. One
testified that Berryhill responded that he was “working on”
the problems and “in progress” on the solutions. It is true that,
before the union campaign, Berryhill held monthly Techni-
cian Advisory Panel meetings, but there is no evidence that
he had ever before sought out employee grievances through
individual meetings in his office. The individual meetings
also included inquiries about the union effort. Substantial ev-
idence supports the finding that this was an effort to frustrate
the union organizing drive by soliciting and at least implicitly
promising to adjust grievances in violation of § 8(a)(1).
There was also substantial evidence that Berryhill ad-
justed grievances in violation of the Act when he demoted
team leaders Grobler and Manbahal just one week before the
union election. At his series of meetings with technicians on
September 25, Berryhill heard complaints about Grobler.
Later, at an unscheduled December 9 meeting with the tech-
nicians on the shop floor, Berryhill told the technicians he was
going to fix some of the things they had complained about.
He said that some complaints had already been addressed
and that the dealership would try to continue making im-
provements in the future. Then Berryhill announced that he
was replacing Grobler and Manbahal as team leaders. All this
occurred just one week before the union election. These ex-
Nos. 14-3723 & 15-1187 15
plicit promises to fix the employees’ problems and the demo-
tions just one week before the election support the Board’s
finding that the dealership violated § 8(a)(1) in this instance.
4. Vice President Davis’s Interrogation and Solicitation of
Grievances
Substantial evidence also supports the Board’s finding that
AutoNation vice president and assistant general counsel Da-
vis coercively interrogated a technician in violation of
§ 8(a)(1). The technician, Tumeshwar Persaud, testified that in
December 2008, Davis approached him and asked him how
he felt about the union election. Persaud responded that he
thought “we [the union] have a good chance.” Davis smiled
and walked away. It was not unreasonable for the administra-
tive law judge to conclude that this question—coming one-
on-one from the parent company’s vice president in the final
weeks before the election—was coercive. The question forced
Persaud, who had not previously disclosed his union support,
either to disclose his own union sympathies or to report on
his perception of his fellow employees’ union support. We af-
firm this finding.
Substantial evidence also supports the Board’s finding that
the dealership and AutoNation violated § 8(a)(1) when Davis
solicited and implicitly promised to remedy employees’
grievances at a meeting on October 15 or 16.2 Technician An-
thony Roberts testified that in mid-October, Davis held a
2 The Board found it “unnecessary to pass” on whether Davis solicited
and implicitly promised to remedy employee grievances because such a
finding would have been cumulative and would not have affected the
remedy.
16 Nos. 14-3723 & 15-1187
meeting with employees at which he solicited employee com-
plaints and, upon hearing that management had been unre-
sponsive to employee complaints in the past, said that em-
ployees could call him or talk to him at any time. This meeting
was part of a series of approximately ten meetings that man-
agement held in the run-up to the union election. Given this
context, substantial evidence supports the Board’s inference
that Davis was implicitly promising to remedy grievances
with the goal of frustrating the union effort in violation of
§ 8(a)(1).
B. The Dealership’s “Coaching” of Dean Catalano
Substantial evidence and a reasonable basis in law support
the Board’s conclusion that the dealership violated § 8(a)(1) by
issuing documented “coaching” to technician Dean Catalano
after he voiced his displeasure with the presentation of a
speaker from the Orange County Health Department in Octo-
ber 2009, ten months after the election. Here, the Board dis-
agreed with the administrative law judge on a conclusion of
law.
The Board and the administrative law judge agreed on the
facts, and substantial evidence supports those findings. In
September 2009, a shop steward, Catalano, saw another em-
ployee leave the restroom without washing his hands. Cata-
lano discussed this with other employees, and they commu-
nicated their concerns to the dealership’s sales manager. The
manager arranged for a speaker from the county health de-
partment to visit the dealership. The speaker gave a presenta-
tion to employees focused largely on the flu virus. At the end
of the presentation, after the speaker asked for questions, Cat-
alano said that the presentation had not addressed his con-
cerns about hand-washing and that it was not “the meeting
Nos. 14-3723 & 15-1187 17
that we were looking to have.” The speaker suggested that
Catalano raise his concerns with management, and he said
that he had and “this is what” he got. The dealership issued
Catalano a “coaching” document reminding him to be cour-
teous and respectful to everyone in the workplace.
The Board and the administrative law judge disagreed
about whether Catalano’s comments were concerted activity
protected by the Act. The judge said no because Catalano’s re-
marks were directed toward a guest of the dealership rather
than to management. The Board reversed: “It is irrelevant that
Catalano’s comments were not directed to a management of-
ficial who was aware of employees’ concern; what is relevant
is that his comments furthered employees’ protected con-
certed activity addressing sanitary restroom habits, an em-
ployment term and condition.”
The Board’s interpretation of the Act was reasonable.
There is no logical reason or rule from case law that would
require concerted activity to be directed toward management
in order to be protected. Employees’ concerted activity may
be protected even when it takes place “through channels out-
side the immediate employee-employer relationship.” Eastex,
Inc. v. NLRB, 437 U.S. 556, 565 (1978) (distribution of a union
newsletter discussing right-to-work and minimum wage leg-
islation was protected concerted activity). Concerted activity
does not lose protection because it is unconnected to a specific
demand to management. See NLRB v. Washington Aluminum
Co., 370 U.S. 9, 14 (1962) (Act protected employee walkout be-
cause it was too cold in their workplace, though employees
did not first make any demands to management).
Catalano’s comments may have been perceived as perhaps
a little rude, but they were certainly not so rude that the Board
18 Nos. 14-3723 & 15-1187
was unreasonable in finding they were protected. Particularly
egregious conduct may lose the Act’s protection. See, e.g.,
American Steel Erectors, Inc., 339 N.L.R.B. 1315, 1317 (2003) (con-
duct was unprotected when a union member said that allow-
ing iron workers to work for the company was “like throwing
babies into the Merrimack River”); Atlantic Steel Co., 245
N.L.R.B. 814, 816–17 (1979) (calling a foreman a “lying son of a
b—” or a “motherf—ing liar” or saying that the foreman had
told a “motherf—ing lie” was sufficiently egregious to lose
the Act’s protection). To decide whether an employee’s state-
ment to management was so egregious that it forfeited the
Act’s protection, the Board examines: “(1) the place of the dis-
cussion; (2) the subject matter of the discussion; (3) the nature
of the employee’s outburst; and (4) whether the outburst was,
in any way, provoked by an employer’s unfair labor practice.”
Id. at 816.
Catalano’s conduct occurred during a meeting to address
workplace hygiene issues. He waited until the speaker called
for questions. His remarks did not disrupt the functioning of
the workplace. Although perhaps arguably rude, his remarks
did not include language unacceptable in the workplace, such
as profanity or personal attacks. Even if Catalano’s conduct
was intemperate or confrontational, that would not mean he
forfeited the Act’s protection. See Kiewit Power Constructors Co.
v. NLRB, 652 F.3d 22, 23, 28 (D.C. Cir. 2011) (holding that a
worker telling a supervisor he had “better bring [his] boxing
gloves” in a dispute over break time did not lose the Act’s pro-
tection). The Board did not err by finding that Catalano’s be-
havior was protected by the Act.
The Board also reasonably applied the law in concluding
that the “coaching” document issued to Catalano would tend
Nos. 14-3723 & 15-1187 19
to inhibit future concerted activity in violation of § 8(a)(1). Ac-
tivity that chills protected concerted activity can violate the
Act even if it falls short of a formal employment action. See
NLRB v. Air Contact Transport Inc., 403 F.3d 206, 213 (4th Cir.
2005) (noting that whether an employer action is labeled as
“counseling” or “disciplinary” does not matter for § 8(a)(1)
purposes as long as the action tends to coerce against engag-
ing in protected activity); see also Lancaster Fairfield Commu-
nity Hospital, 311 N.L.R.B. 401, 403 (1993) (“report” by employer
asking employee to stop engaging in protected concerted ac-
tivity violated § 8(a)(1) although it fell short of formal disci-
pline). The Board could reasonably conclude that the coach-
ing letter to Catalano chilled his protected activity in violation
of § 8(a)(1) of the Act.
C. AutoNation’s No-Solicitation Policy
The Board also found that AutoNation, the dealership’s
parent company, violated § 8(a)(1) when it promulgated an
overly broad no-solicitation policy in the employee handbook
used at all of its facilities. Substantial evidence supports this
finding. AutoNation’s policy prohibited any solicitation on
AutoNation property at any time. Whether or not AutoNation
or the dealership enforced the policy, the Board was entitled
to conclude that the policy’s mere existence amounted to an
unfair labor practice because of the likelihood it would chill
protected concerted activity. See Guardsmark, LLC v. NLRB,
475 F.3d 369, 374, 377–78 (D.C. Cir. 2007) (maintaining overly
broad no-solicitation policy was unfair labor practice even ab-
sent evidence that employer applied the policy to protected
concerted activity); NLRB v. General Thermodynamics, Inc., 670
F.2d 719, 721 (7th Cir. 1982) (“We have held that if an employer
were to maintain an overbroad no-solicitation rule it would
20 Nos. 14-3723 & 15-1187
violate Section 8(a)(1) of the Act even if there was no evidence
that the rule was enforced.”).
We also affirm the Board’s remedy: ordering the posting of
notices at all of AutoNation’s facilities nationwide. 3 The
Board’s remedial order must be “tailored to the unfair labor
practice it is intended to redress.” Sure-Tan, Inc. v. NLRB, 467
U.S. 883, 900 (1984). The Board’s order meets that require-
ment. AutoNation committed an unfair labor practice at all of
its facilities by issuing the no-solicitation rule in its employee
handbook. Nationwide posting of a remedial notice is well-
tailored to remedy the unfair labor practice. See Guardsmark,
LLC, 475 F.3d at 381.
D. The Dealership’s Assertion that It Would Not Recognize the
Union Until There Was a Contract
The administrative law judge found that the dealership vi-
olated § 8(a)(1) when general manager Berryhill told David
Poppo, a shop steward for the union, that the dealership
would not recognize the union until there was a contract in
place. The dealership did not urge any exceptions to this find-
ing before the Board. We thus summarily enforce the Board’s
order affirming the judge’s finding of a § 8(a)(1) violation. See
29 U.S.C. § 160(e) (prohibiting courts of appeals from consid-
ering any objection not urged before Board absent extraordi-
nary circumstances); U.S. Marine Corp. v. NLRB, 944 F.2d 1305,
1314 (7th Cir. 1991) (summarily enforcing Board determina-
3Here, the Board amended the administrative law judge’s order to
require notices at all AutoNation facilities rather than at just the Florida
dealership at the center of this case.
Nos. 14-3723 & 15-1187 21
tions regarding uncontested violations of the Act). This un-
contested violation, while not in dispute in this appeal, re-
mains relevant, “lending [its] aroma” to the rest of the facts of
this case. Id. at 1315 (internal quotation marks omitted).
IV. The § 8(a)(3) Violation by Firing Roberts
Substantial evidence supports the administrative law
judge’s finding that the dealership’s discharge of Anthony
Roberts on December 8, 2008, a week before the election, was
motivated by anti-union animus in violation of § 8(a)(3) of the
Act. Section 8(a)(3) makes it an unfair labor practice to dis-
criminate in hiring, “tenure of employment or any term or
condition of employment to encourage or discourage mem-
bership in any labor organization.” 29 U.S.C. § 158(a)(3).
The legal framework for showing that anti-union animus
motivated a layoff is well established. Under Wright Line, 251
N.L.R.B. 1083 (1980), the Board’s general counsel must show that
anti-union animus was a “substantial or motivating factor” in
the decision to lay off the employee. Huck Store Fixture Co. v.
NLRB, 327 F.3d 528, 533 (7th Cir. 2003) (internal quotation
marks omitted). This requires the general counsel to show
“that the employees were engaged in union activities, that the
employer knew of and harbored animus toward the union ac-
tivities, and there was a causal connection between the ani-
mus and the implementation of the adverse employment ac-
tion.” Id. If the general counsel shows this, the employer may
still escape an unfair labor practice finding by showing that it
would have laid off the employee anyway, regardless of anti-
union animus. Id. The Board may then conclude that the em-
ployer’s explanation was a pretext because the stated reason
did not exist or the employer did not actually rely on it. Id.
22 Nos. 14-3723 & 15-1187
Here, the Board found that Berryhill’s “identification of
Roberts as a troublemaker and instigator of the organizational
campaign” established that anti-union animus was a substan-
tial factor motivating Roberts’s layoff. The Board credited
technician James Weiss’s testimony that he had told Berryhill
and vice president Davis that Roberts was a leader for the un-
ion. The Board also found that the dealership’s stated reason
for firing Roberts—that he lacked sufficient electronic diag-
nostic skills—failed to establish that Roberts would have been
laid off in the absence of anti-union animus. The Board noted
(1) that Roberts was more productive and had a higher skill
rating than many technicians who were retained, and (2) that
the record did not show that Roberts was ever counseled
about his lack of electronic diagnostic skill before the layoff.
Substantial evidence supports the Board’s finding that
anti-union animus motivated Roberts’s layoff. Weiss testified
that on October 9, 2008, he told Berryhill that Roberts was a
leading union supporter. The Board followed the judge in
crediting that part of Weiss’s testimony. 4 Berryhill himself ad-
mitted having talked often with Weiss about the union organ-
izing drive. Weiss’s testimony also supported the finding that
Berryhill labeled Roberts a “troublemaker.”
The judge and Board did not err by choosing to credit only
part of Weiss’s testimony while discounting the rest. Guardian
Industries Corp. v. NLRB, 49 F.3d 317, 323 (7th Cir. 1995). The
judge gave plausible reasons for believing Weiss’s testimony
4 Theadministrative law judge did find that, as of September 25, Rob-
erts had not yet openly identified himself to management as a union sup-
porter. This is not inconsistent with the idea that Berryhill knew about
Roberts’s union activity because Weiss had told him on October 9.
Nos. 14-3723 & 15-1187 23
on Berryhill’s knowledge of Roberts’s union activity and his
labeling Roberts a “troublemaker.” The judge noted that Ber-
ryhill did not deny frequent talks with Weiss or that Weiss re-
ported to him about union activity. We generally reverse an
administrative law judge’s credibility findings only in “ex-
traordinary circumstances such as clear bias by the ALJ, utter
disregard of uncontroverted sworn testimony, or acceptance
of testimony that on its face is incredible.” See Bloomington-
Normal Seating Co. v. NLRB, 357 F.3d 692, 695 (7th Cir. 2004)
(citation and internal quotation marks omitted). Extraordi-
nary circumstances are not present here. Substantial evidence
supports the judge’s and the Board’s finding that Roberts’s
discharge was motivated by anti-union animus.
Substantial evidence also supports the decision not to be-
lieve the dealership’s claimed reason for laying off Roberts:
that he lagged behind other technicians in electronic diagnos-
tic skills. Although Roberts was notified in a 2007 perfor-
mance review that he needed to “continue developing electri-
cal diagnostic skills,” that same evaluation rated his skill level
as “on target.” It is of course possible to read this evaluation
as contrary to the findings or as supporting them. The dealer-
ship’s shifting explanations for laying Roberts off—initially,
Roberts was told the dealership was “just downsizing”—also
provide evidence to support the decision not to believe the
dealership’s defense. The context of an impending union elec-
tion and the other unfair labor practices also lend their aroma
to Roberts’s layoff. NLRB v. Rain-Ware, Inc., 732 F.2d 1349, 1354
(7th Cir. 1984) (timing of layoffs can support inference that
anti-union animus motivated the layoffs); NLRB v. Tom Wood
Pontiac, Inc., 447 F.2d 383, 386 (7th Cir. 1971) (other contempo-
raneous unfair labor practices are relevant in establishing dis-
charge in violation of § 8(a)(3)).
24 Nos. 14-3723 & 15-1187
The judge’s comparison of Roberts’s productivity and skill
rating to other employees further supports the finding that
Roberts would not have been laid off in the absence of anti-
union animus. Roberts’s hours and skill rating were higher
than those of some other employees. A comparison between
employees is a permissible way to support a finding that an
employee was laid off due to anti-union animus. Pacific South-
west Airlines, 201 N.L.R.B. 647, 655 (1973) (noting that employee
was senior to other employees as one reason for finding that
discharge was motivated by anti-union animus). And the use
of comparisons between workers to show pretext is not the
same as a judge substituting his business judgment for the
employer’s—rather, it is one factor that went into the conclu-
sion that the reason given by the company was a pretext.
The contrary evidence does not justify reversal under the
substantial evidence standard. There was some testimony
that Roberts did lag behind other technicians in his electrical
knowledge, and Berryhill denied labeling Roberts a “trouble-
maker.” But as explained above, there is also substantial evi-
dence in the record supporting the Board’s finding. We affirm
the finding that the dealership violated § 8(a)(3) of the Act by
firing Roberts due to anti-union animus.
V. The § 8(a)(5) Violations for Refusal to Bargain
We also enforce the Board’s order concerning the dealer-
ship’s several bargaining violations. The administrative law
judge, affirmed by the Board, reasonably applied the law in
holding that the dealership violated § 8(a)(5) of the Act when
it did not bargain over the spring 2009 layoffs of four employ-
ees, the suspension of technician skill level reviews, and the
reduction in technician pay for pre-paid maintenance jobs,
and when it refused to fulfill the union’s information request.
Nos. 14-3723 & 15-1187 25
The Board reasonably concluded that the dealership had a
duty to bargain at the relevant times and that all of these ac-
tions were mandatory subjects for bargaining.
A. The Dealership’s Duty to Bargain
The Board reasonably applied the law in holding that once
the union was certified in 2010, the dealership’s duty to bar-
gain dated back to the December 2008 election. Under the “at-
its-peril” doctrine, the dealership was liable for any bargain-
ing violations that occurred between the election itself and the
eventual resolution to election challenges that resulted in the
union’s victory. The fact that the union was not certified until
2010 does not nullify the dealership’s duty to bargain during
the interim period.
Under well-established Board precedent, “absent compel-
ling economic considerations for doing so, an employer acts
at its peril in making changes in terms and conditions of em-
ployment during the period that objections to an election are
pending and the final determination has not yet been made.”
Mike O'Connor Chevrolet, 209 N.L.R.B. 701, 703 (1974), enforce-
ment denied on other grounds, 512 F.2d 684 (8th Cir. 1975). If
the union eventually wins the election, the employer is liable
for any previous refusals to bargain. Id.
The at-its-peril doctrine is essential to effective enforce-
ment of the Act: an employer may not “box the union in on
future bargaining positions by implementing changes of pol-
icy and practice during the period when objections or deter-
minative challenges to the election are pending.” Id.; see also,
e.g., United Food & Commercial Workers v. NLRB, 519 F.3d 490,
496 (D.C. Cir. 2008) (Board reasonably applied at-its-peril doc-
trine that “considers a union the elected representative of a
26 Nos. 14-3723 & 15-1187
bargaining unit as of the date of its election, not the date of its
certification”). We decline the petitioners’ invitation to depart
from this established law and to undermine effective enforce-
ment of the Act while an employer’s challenge to an election
is pending.
The complex procedural history leading to certification of
the union in this case does not defeat the doctrine’s applica-
tion. The dealership is correct that after New Process Steel, the
Board voided its 2009 two-member decision affirming the bar-
gaining unit determination and that the 2010 three-member
Board order specified that the union was certified as of Au-
gust 23, 2010. Contemporary Cars, Inc., 355 N.L.R.B. 592, 592 & n.4
(2010). The employer’s challenge to the election thus re-
mained pending throughout this time period. But this delay
in resolving the election challenge does not change the fact
that the duty to bargain with the union related back to the De-
cember 2008 election.
The dealership also argues that it did not commit unfair
labor practices by failing to bargain because contested ballots
were erroneously opened pursuant to the later-voided 2009
two-member Board ruling. Board Rule 102.67(b) requires that
election ballots “whose validity might be affected” by a Board
decision be impounded and remain unopened pending the
decision. It is not necessary to decide here whether it was im-
proper to open the disputed ballots based on the Board’s later-
voided 2009 ruling. Whether the ballots were erroneously
opened early should not affect the application of the at-its-
peril doctrine, under which the duty to bargain dates back to
the election if the union is eventually certified. The dealership
does not argue that the possibly erroneous opening of ballots
affected the validity of the union’s certification. It also should
Nos. 14-3723 & 15-1187 27
not affect the application of the at-its-peril doctrine after the
union’s victory.
The Board thus did not err by holding that the at-its-peril
doctrine squarely applies to this situation. Absent compelling
economic considerations, the dealership violated the Act by
making unilateral changes on mandatory subjects of bargain-
ing in the period between the election and the union’s even-
tual certification.
B. Compelling Economic Considerations?
The Board reasonably applied the law in concluding that
the dealership’s situation in 2009 did not amount to compel-
ling economic considerations sufficient to excuse its duty to
bargain. The argument before the judge and the Board and
the briefing in this petition for review focused on the presence
of compelling economic considerations as related to the April
2009 layoffs. But no compelling economic considerations jus-
tified any of the dealership’s unilateral moves on mandatory
subjects of bargaining.
A compelling economic consideration is an “unforeseen
occurrence, having a major economic effect ... that requires
the company to take immediate action.” Angelica Healthcare
Services, 284 N.L.R.B. 844, 853 (1987) (holding that loss of major
customer was not a compelling economic consideration be-
cause it was not unforeseen). 5 A compelling economic consid-
eration falls somewhere between a situation requiring the
5 The dealership argues that Angelica Healthcare Services is not good
law because the decision cited a case that was denied enforcement by the
Sixth Circuit. But Angelica Healthcare Services cited that case only for the
general and undisputed proposition that a company is not excused from
28 Nos. 14-3723 & 15-1187
mere exercise of sound business judgment and an imminent
business collapse. Van Dorn Plastic Machinery Co., 286 N.L.R.B.
1233, 1245 (1987). A “sudden and unexpected loss of busi-
ness” may be a compelling economic consideration.
Sundstrand Heat Transfer, Inc. v. NLRB, 538 F.2d 1257, 1259 (7th
Cir. 1976).
The policy of the Act requires employers to bargain on
subjects that are “amenable to resolution through the bargain-
ing process.” First National Maintenance Corp. v. NLRB, 452
U.S. 666, 678 (1981). Thus, changes to employment driven by
the need to reduce labor costs are mandatory subjects of bar-
gaining. See Fibreboard Paper Products Corp. v. NLRB, 379 U.S.
203, 213–14 (1964) (management decision to outsource
maintenance work to save money was mandatory subject of
bargaining). But the decision to shut down all or part of an
enterprise due to economic conditions unrelated to labor costs
would not be a mandatory subject of bargaining. See First Na-
tional Maintenance Corp., 452 U.S. at 668–69, 687 (maintenance
contractor’s decision to end its contract to provide mainte-
nance staff to a third-party business was not mandatory sub-
ject of bargaining where the decision to end the contract was
due to the size of management fee paid to maintenance con-
tractor and third-party business was responsible for all labor
costs).
Applying these principles, compelling economic consider-
ations require more than simply a large economic change for
bargaining by economic expediency and instead must show compelling
economic considerations.
Nos. 14-3723 & 15-1187 29
an employer. Instead, whether compelling economic consid-
erations are present must be guided by whether the employ-
ment decision at issue is amenable to resolution though bar-
gaining. See Van Dorn Plastic Machinery Co. v. NLRB, 736 F.2d
343, 349 (6th Cir. 1984) (Board should analyze whether bar-
gaining is required under First National Maintenance on re-
mand to determine if “compelling economic considerations”
were present). In many cases of economic stress, a union will
be in a position to agree to changes to blunt the effects of the
stress. The need to reduce labor costs is “peculiarly suitable
for resolution within the collective bargaining framework.”
Fibreboard Paper Products Corp., 379 U.S. at 214. If bargaining
might be effective as to the employment decision or its effects,
the Act requires an employer to bargain.
We recognize that in some cases a compelling economic
consideration may be so pressing that a decision is not “ame-
nable to resolution through the bargaining process,” First Na-
tional Maintenance Corp., 452 U.S. at 678, though it would seem
rare that management would not have time at least to consult
with union leaders. An employment action that is simply in-
evitable, no matter what a union might agree to, might also
qualify. If an economic change forces a business to change its
“scope and direction” to such an extent that it is “akin to the
decision whether to be in business at all,” that could count as
a compelling economic consideration, assuming nothing the
union could agree to in bargaining could change the situation.
See First National Maintenance, 452 U.S. at 677.
Here, the Board could reasonably find that the dealership
did not face a situation inevitable or urgent enough to qualify
as a compelling economic consideration. We recognize that
the dealership faced a substantial drop in revenue and dire
30 Nos. 14-3723 & 15-1187
financial circumstances as a result of the 2008 economic crisis.
But the loss of business was neither sudden nor unexpected.
The dealership knew well in advance of the actual dates of its
unilateral actions that it was facing hard times. The dealer-
ship’s controller testified that he discussed with general man-
ager Berryhill as early as November or December of 2008 the
need for layoffs in the service department. One team leader
testified that he was told about impending layoffs in February
or the beginning of March 2009. The layoffs did not occur un-
til April, and the reduction in book hours for pre-paid service
jobs did not happen until February 2009.
The fundamental point, though, is that despite the tough
economy, there was sufficient time for the dealership at least
to attempt to bargain about the layoffs and the other changes
rather than acting unilaterally. The drop in business was se-
vere, but any need for changes was apparent months in ad-
vance. There was nothing “sudden and unexpected” about
the situation. See Sundstrand Heat Transfer, Inc., 538 F.2d at
1259. The circumstances surrounding the dealership in late
2008 and early 2009 did not rise to the level of urgency that
would have “require[d] the company to take immediate ac-
tion” without taking the time to bargain. Angelica Healthcare
Services, 284 N.L.R.B. at 853.
The dealership also argues that the Board made two legal
errors. We disagree. First, the Board applied the correct legal
standard. The Board did not erroneously apply an “economic
exigency” standard rather than a compelling economic con-
siderations standard. The judge had cited a case that used
those terms interchangeably. See United Steel Service, Inc., 351
N.L.R.B. 1361, 1369 (2007) (noting in the context of a post-certi-
fication refusal to bargain that “it is well settled that a drop in
Nos. 14-3723 & 15-1187 31
business does not rise to the level of an economic exigency or
compelling economic circumstances”). The two phrases arise
from slightly different contexts—“compelling economic con-
siderations” comes from pre-certification refusal-to-bargain
cases and “economic exigency” comes from post-certification
refusal-to-bargain cases. See, e.g., Master Window Cleaning,
Inc., 302 N.L.R.B. 373, 374 (1991) (post-certification); Mike O'Con-
nor Chevrolet, 209 N.L.R.B. at 703 (pre-certification). We are
aware of no indication that those two terms denote substan-
tively different standards. See Pleasantview Nursing Home, Inc.
v. NLRB, 351 F.3d 747, 755–56 (6th Cir. 2003) (citing pre-certi-
fication cases in discussing post-certification economic exi-
gency); United Steel Service, Inc., 351 N.L.R.B. at 1369 (using the
two terms interchangeably).
Second, the dealership argues that the Board erred by
treating unforeseeability as a necessary condition for compel-
ling economic considerations. We do not read the decision
that way. The judge and the Board treated unforeseeability as
one of several factors, albeit an important one, that go into
judging compelling economic considerations. The applicable
case law agrees. See, e.g., Sundstrand Heat Transfer, Inc., 538
F.2d at 1259 (holding that a “sudden and unexpected loss of
business” may be a compelling economic consideration); An-
gelica Healthcare Services, 284 N.L.R.B. at 853 (stating that a com-
pelling economic consideration is an “unforeseen occurrence,
having a major economic effect ... that requires the company
to take immediate action”).
C. The 2009 Layoffs and the Backpay Remedy
There can be no doubt that the four April 2009 layoffs were
a mandatory subject of bargaining. “Layoffs are not a man-
32 Nos. 14-3723 & 15-1187
agement prerogative. They are a mandatory subject of collec-
tive bargaining.” NLRB v. Advertisers Mfg. Co., 823 F.2d 1086,
1090 (7th Cir. 1987). The dealership’s duty to bargain over the
layoffs also included a duty to bargain over the layoffs’ effects,
such as recall rights and severance benefits. First National
Maintenance Corp., 452 U.S. at 677, 681–82 (a business must
bargain about the effects of a partial cessation of operations
even if it does not have to bargain about the cessation itself).
The dealership did not bargain over these subjects. Because
the dealership had a duty to bargain between the election and
the union’s eventual certification, the Board reasonably ap-
plied the law in holding that the dealership violated § 8(a)(5)
of the Act by not bargaining over the April 2009 layoffs.
The Board also did not abuse its discretion by ordering a
backpay remedy. We review the choice of remedy for abuse of
discretion and any factual basis for the remedy for substantial
evidence. NLRB v. Intersweet, Inc., 125 F.3d 1064, 1067 (7th Cir.
1997). Despite this deference, the function of a backpay rem-
edy must be to restore the affected employees to the position
they would have been in if their unlawful layoff had not hap-
pened. Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 900 (1984).
Substantial evidence supports the finding that the four
laid-off employees might have retained their jobs had there
been bargaining. The dealership paid technicians by the job,
not by the hour. Thus, management discussed laying off tech-
nicians not as a cost-cutting measure but rather as a measure
to make sure other employees had enough work to sustain
them. It would not have been unreasonable for a union to
have accepted reduced work for every technician rather than
layoffs, or to have bargained for some other cost-cutting
measures that would have saved the laid-off technicians’ jobs.
Nos. 14-3723 & 15-1187 33
Given these possibilities, it was reasonable to conclude that
the four laid-off employees could have retained their jobs
through bargaining. Despite some language that can be taken
out of context, the judge did not conclude otherwise when he
wrote that the employees “would have been discharged even
in the absence of their union activities.” The judge made that
statement in the context of concluding the layoffs were not
motivated by anti-union animus. It does not indicate a finding
of fact that the employees would have been laid off anyway
even if there had been bargaining. Substantial evidence sup-
ports the discretionary choice of the backpay remedy.
Our decision in Sundstrand Heat Transfer does not compel
a contrary conclusion. In Sundstrand, we held that a backpay
remedy for failure to bargain was inappropriate when the
layoffs were “compelled by economic necessity.” 538 F.2d at
1259–60. If economic necessity compels a layoff, the Board
cannot reasonably conclude that bargaining could have saved
the laid-off employee’s job, and thus backpay would not be
justified. Here, the circumstances were not so dire that bar-
gaining between the employer and union could not have pro-
duced any other outcome. Options other than layoffs were
available, so Sundstrand does not apply.
D. The Suspension of Skill Level Reviews, the Unilateral Re-
duction in Pay for Pre-Paid Maintenance, and the Infor-
mation Request
Substantial evidence supports the Board’s findings that
the dealership violated § 8(a)(5) of the Act when it suspended
employee skill level reviews due to the union’s election, re-
duced the amount paid to technicians for pre-paid mainte-
nance jobs, and refused to respond to a union information re-
quest. The Board reasonably held that each was a mandatory
34 Nos. 14-3723 & 15-1187
subject of bargaining and that the dealership violated that
bargaining obligation.
The Board reasonably held, and substantial evidence sup-
ports, that the dealership violated its § 8(a)(5) bargaining ob-
ligation when it refused to bargain over its suspension of skill
level reviews in the winter and spring of 2009. Although there
is evidence that the timing of skill level reviews had been er-
ratic in the past, a team leader admitted that he told employ-
ees that skill level reviews had been suspended in early 2009
to preserve the status quo pending union negotiations. There
was a wage freeze at the time, but the wage freeze did not af-
fect promotions and pay increases due to skill level reviews.
Skill level reviews, as an evaluation and promotion tool, were
certainly mandatory subjects of bargaining. See Spurlino Ma-
terials, LLC v. NLRB, 645 F.3d 870, 880 (7th Cir. 2011) (estab-
lishing new employee evaluation system was mandatory sub-
ject of bargaining). Thus the Board reasonably concluded that
the dealership violated § 8(a)(5) by unilaterally suspending
skill level reviews.
The Board also reasonably applied the law in finding that
the dealership violated § 8(a)(5) when it reduced the amount
it paid technicians for each pre-paid maintenance job without
negotiating with the union. The dealership reduced the “book
times” that determined the amounts workers were paid for
each job, regardless of how long the work actually took. The
dealership now suggests that this reduction actually resulted
in the same pay for the same work, so this “technical correc-
tion” was not a change in wages and was not a mandatory
subject for bargaining. While there is evidence in the record
that the amount of work per job went down along with the
amount paid, nothing in the record suggests that these twin
Nos. 14-3723 & 15-1187 35
decreases were commensurate with each other and thus pro-
duced no net effect on wages. And, in fact, the number of
hours per technician continued to go down during this pe-
riod. This was, after all, a recession. The Board was fully enti-
tled to view the reduction in pay per job as a unilateral pay
cut in violation of the dealership’s duty to bargain.
The Board also reasonably found that the dealership’s fail-
ure to respond to the union’s information request concerning
job classifications, wage rates, and related items was a
§ 8(a)(5) bargaining violation. Substantial evidence indicates
that the union requested this information in April 2009. An
employer’s duty to bargain includes a duty to provide the un-
ion with information “needed by the bargaining representa-
tive for the proper performance of its duties.” NLRB v. Acme
Industrial Co., 385 U.S. 432, 435–36 (1967). The dealership’s re-
fusal to provide the information violated § 8(a)(5) of the Act.
Conclusion
Substantial evidence and a reasonable basis in law support
the Board’s order and the administrative law judge’s order to
the extent affirmed by the Board. We DENY the dealership
and AutoNation’s petition for review and ENFORCE the
Board’s order in its entirety.
36 Nos. 14-3723 & 15-1187
MANION, Circuit Judge, concurring in part and dissenting
in part. While joining most of the court’s opinion, I write sep-
arately to address the four layoffs that were unrelated to ani-
mus and to highlight the need for back-pay mitigation.
When the dealership laid off Juan Cazorla, Larry Puzon,
David Poppo, and Tumeshwar Persaud, it had a duty to bar-
gain. Yet as we made clear in Sundstrand Heat Transfer, Inc. v.
N.L.R.B., 538 F.2d 1257, 1260 (7th Cir. 1976), “a full backpay
remedy must have been predicated on the assumption that
bargaining over the effects of the layoff would have kept the
employees on the job.” As the court notes, these four techni-
cians were laid off to ensure that the remaining technicians
1
had enough jobs to be adequately employed. Technicians at
this dealership were paid by the job, not by the hour, as is
standard in the industry. To keep its skilled technicians from
seeking better pay elsewhere, the dealership had to make sure
they had enough work. This required distributing the dwin-
dling workload among fewer technicians. The court specu-
lates that the union could have bargained for less work per
technician or some other unspecified deal. But in line with the
company’s business model, to keep jobs viable in that service
center and to meet customer needs, the dealership had to keep
its more skilled technicians as fully employed as possible.
This is not conjecture: technicians were leaving the dealership
for other opportunities, as they saw that the dealership could
not supply enough work per person.
1
Whether economic conditions were no longer “dire” is debatable.
When there is not enough work to go around, some technicians will have
to leave.
Nos. 14-3723 & 15-1187 37
Further, the four technicians who were laid off did not
even have the limited skill level that their ratings suggested.
The administrative law judge credited the testimony of Alex
Aviles, a team-leader technician who said that the four tech-
nicians’ lower skill ratings did not even reflect their actual
skill. Instead, Aviles testified that the ratings were “a thank
you for your seniority,” and the four did not “really have that
skill set.” Under Sundstrand, the dealership should not be pe-
nalized for attempting to keep as many of the highly skilled
technicians as fully employed as possible. Yet now, the deal-
ership is ordered to reinstate Cazorla, Puzon, Poppo, and Per-
saud—and they must be restored to seniority ratings that, on
the undisputed record, they did not deserve based upon their
actual skills. This is a punitive rather than a fair remedy,
which should not be fully enforced.
In conclusion, I note the mitigation ordered by the Board
provides that the four technicians discussed here, along with
the unlawfully discharged Anthony Roberts, are to receive
back pay and lost benefits, “less any interim net earnings.”
This would probably be a complicated formula that includes
medical benefits, any unemployment benefits, part-time
work, and possibly comparison with how layoffs were han-
dled after bargaining began. The idea that these technicians
would have received full pay if they were retained is dubious,
particularly where this court recognizes that there was not
enough work to go around when technicians were laid off.
Requiring the dealership to pay seven years of back pay also
seems too harsh, particularly when this litigation was ex-
tended by the Board’s own quorum-related problems dis-
cussed in N.L.R.B. v. Noel Canning, 134 S. Ct. 2550 (2014). The
dealership should not be penalized for significant delays that
38 Nos. 14-3723 & 15-1187
it did not create. At the least, however, mitigation for the or-
dered back-pay remedies will require careful calculation.