Heartland Human Services v. National Labor Relations Board

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 13‐1954, 13‐2079
HEARTLAND HUMAN S ERVICES,
Petitioner / Cross‐Respondent,
v.
NATIONAL LABOR R ELATIONS BOARD,
Respondent / Cross‐Petitioner,
and
A MERICAN FEDERATION OF STATE , C OUNTY & MUNICIPAL
EMPLOYEES, C OUNCIL 31, AFL‐CIO,
Intervening Respondent.
____________________
Application for Enforcement, and Cross‐Petition for Review, of an
Order of the National Labor Relations Board.
No. 14‐CA‐087886.
____________________
A RGUED J ANUARY 23, 2014 — D ECIDED MARCH 14, 2014
____________________

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2 Nos. 13‐1954, 13‐2079
Before P OSNER and R IPPLE , Circuit Judges, and G ILBERT,
District Judge. *
P OSNER , Circuit Judge. The Labor Board asks us to enforce
its order finding that Heartland Human Services, a company
that provides mental‐health and substance‐abuse services,
committed an unfair labor practice by refusing, in the wake
of a decertification election, to continue recognizing a union
that represented a bargaining unit of Heartland employees.
See 29 U.S.C. §§ 158(a)(1), (5). (Until enforced by judicial or‐
der, an unfair labor practice order has no legal force, 29
U.S.C. § 160(e); NLRB v. P*I*E Nationwide, Inc., 894 F.2d 887,
890 (7th Cir. 1990); National Ass’n of Manufacturers v. NLRB,
717 F.3d 947, 951 (D.C. Cir. 2013), which is why the Board
has petitioned us.) We must decide both whether we have
jurisdiction to adjudicate the company’s challenge to the
Board’s order setting aside the results of the election and
whether Heartland indeed committed an unfair labor prac‐
tice by refusing to recognize the union after the election.
In August 2011, just days after the latest collective bar‐
gaining agreement between the company and the union had
expired, one of the employees in the bargaining unit asked
the Labor Board to conduct a decertification election on the
ground that many of the unit’s members no longer wanted
to be represented by the union. Neither the company nor the
union opposed the request. The election was conducted in
June of the following year. Thirty‐eight votes were cast: 19
for the union and 18 against, with the remaining ballot not
opened because the union contended that the employee who
had cast it was not a member of the bargaining unit. The
Board rejected that challenge, the ballot was opened, and the
* Of the Southern District of Illinois, sitting by designation.

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Nos. 13‐1954, 13‐2079 3
vote was against the union, which meant the election had
resulted in a tie.
Had that been the only challenge to the election, the un‐
ion, lacking majority support, would have been decertified
and so the company would no longer have been required to
recognize and bargain with it. 29 U.S.C. § 159(a); Ron Tirapel‐
li Ford, Inc. v. NLRB, 987 F.2d 433, 436 (7th Cir. 1993); Kinney
Drugs, Inc. v. NLRB, 74 F.3d 1419, 1423 (2d Cir. 1996). But the
union challenged the result of the election on another
ground as well—that the company had used “objectionable
conduct” to turn the employees against the union, conduct
that included among other things the sending of a letter of
unknown but possibly management origin to a member of
the bargaining unit threatening her with jail if she voted for
the union.
“Objectionable conduct,” though it is a ground for setting
aside the results of a representation election if the conduct is
found to have interfered with the voters’ “free choice,”
NLRB v. OʹDaniel Trucking Co., 23 F.3d 1144, 1149 (7th Cir.
1994); Comcast Cablevision‐Taylor v. NLRB, 232 F.3d 490, 494
(6th Cir. 2000), need not be so “objectionable” as to constitute
an unfair labor practice. Siemens Mfg. Co., 322 N.L.R.B. 994,
994 n. 2 (1997). The distinction is important because the La‐
bor Board will not conduct a new election if an unfair labor
practice charge is pending. National Labor Relations Board,
Casehandling Manual: Representation Proceedings § 11730 (Aug.
2007); Albertson’s, Inc. v. NLRB, 161 F.3d 1231, 1239 (10th Cir.
1998); Surprenant Mfg. Co. v. Alpert, 318 F.2d 396, 397–98 (1st
Cir. 1963). (There are exceptions to this rule, see Casehandling
Manual, supra, § 11731, but none contended to be applicable
to this case.) The rule is grounded in concern that the con‐

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4 Nos. 13‐1954, 13‐2079
duct charged as an unfair labor practice may, until its legali‐
ty is determined, poison the new election. Bishop v. NLRB,
502 F.2d 1024, 1028–29 (5th Cir. 1974).
The Board agreed with three of the union’s charges of ob‐
jectionable conduct and in September 2012 ordered a new
election. Before then, however, in July, shortly after the de‐
certification election, the company—claiming that the result
of the election proved that the union had lost the support of
a majority of the unit—had announced that it would no
longer cooperate with the union in any of the ways that are
required of a company that has employees who have a certi‐
fied collective bargaining representative. See 29 U.S.C.
§§ 158, 159. It had, in short, rescinded its recognition of the
union. This was premature, since the challenged ballot had
not yet been opened. Until a union is decertified following
an election, the company’s obligations to it are the same as
they had been before the election and if it spurns those obli‐
gations it is guilty of an unfair labor practice. Virginia Con‐
crete Corp., 338 N.L.R.B. 1182, 1184 n. 5 (2003); W.A. Krueger
Co., 325 N.L.R.B. 1225, 1226 (1990); Presbyterian Hospital, 241
N.L.R.B. 996, 998 (1979).
The union was thus on solid ground in responding to the
company’s withdrawal of recognition by filing an unfair la‐
bor practice complaint, 29 U.S.C. §§ 158(a)(1), (5), which it
did in August 2012. The Board upheld the complaint and
ordered the company to recognize the union and bargain
with it on request. That’s the order the Board is asking us to
enforce. The company argues that it committed no unfair la‐
bor practice because it had solid grounds for believing that
the union no longer represented a majority of the unit’s em‐
ployees.

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Nos. 13‐1954, 13‐2079 5
The Board issued the unfair labor practice order in March
2013, some nine months after the election. The new election
ordered by the Board in September 2012 has not yet been
held—20 months after the first election—because the unfair
labor practice proceeding hasn’t been finally resolved, owing
to the pendency of this judicial review proceeding.
Such delay undermines the rationale for an election do‐
over, which is intended to be remedial—to be a cure for the
irregularities that prompted the decision to set aside the re‐
sult of the original election. Rosewood Mfg. Co., 263 N.L.R.B.
420 (1982); see also NLRB v. Gissel Packing Co., 395 U.S. 575,
610–11 (1969); NLRB v. Jamaica Towing, Inc., 632 F.2d 208, 212
(2d Cir. 1980). In the space of 20 months the unit member‐
ship may have changed. The company or the union may
have tried with some success to alter the size or composition
of the unit so that its opponents would be less likely to pre‐
vail. New employees would be unfamiliar with the union;
some old ones may have forgotten it; and the company
could have used the period to accustom the employees to the
union’s absence.
The logical solution to the problems created by a long de‐
lay (owing to judicial review) in the holding of the reelection
would seem to be for the company, rather than precipitating
an unfair labor practice charge by refusing to bargain with
the union, to be subjected to a 30‐ or 60‐day deadline for
seeking judicial review of the Board’s order sustaining the
union’s objections to the outcome of the first election. That
route is blocked, however, by decisions by the Supreme
Court, notably American Federation of Labor v. NLRB, 308 U.S.
401, 406–11 (1940), and Boire v. Greyhound Corp., 376 U.S. 473,
476–79 (1964), holding that an order by the Labor Board cer‐

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6 Nos. 13‐1954, 13‐2079
tifying or decertifying a union is subject to judicial review
only in conjunction with an unfair labor practice order by
the Board. For only a “final order” of the Board is reviewa‐
ble, 29 U.S.C. § 160(f), and the cases we’ve just cited hold
that certification orders are not “final orders.” See also Chi‐
cago Truck Drivers, Helpers & Warehouse Workers Union v.
NLRB, 599 F.2d 816, 817–18 and n. 2 (7th Cir. 1979); Adtranz
ABB Daimler‐Benz Transportation, N.A., Inc. v. NLRB, 253 F.3d
19, 24–25 (D.C. Cir. 2001); Michael C. Harper, “The Case for
Limiting Judicial Review of Labor Board Certification Deci‐
sions,” 55 Geo. Wash. L. Rev. 262, 271–72, 275 (1987). They are
orders, and they are final; the reason that has been given for
withholding immediate judicial review is concern that im‐
mediate review would delay the holding of the new, cura‐
tive election. Boire v. Greyhound Corp., supra, 376 U.S. at 477–
79; Mosey Mfg. Co. v. NLRB, 701 F.2d 610, 614 (7th Cir. 1983)
(en banc); Leedom v. Kyne, 358 U.S. 184, 191–94 (1958) (dis‐
senting opinion). The median interval between the filing of a
petition for an election, and the election, is only 38 days,
whereas the interval between the filing of a petition for judi‐
cial review of a decision by the Labor Board and the disposi‐
tion of the case by the court of appeals is bound to be a
number of months.
But although judicial review of a Board order confirming
or setting aside an election is thus postponed, it is not elimi‐
nated. Errors committed in the electoral process must be cor‐
rigible on judicial review for certification and decertification
to be acceptable as reliable determinations. Cf. 5 U.S.C.
§§ 702, 704; Universal Camera Corp. v. NLRB, 340 U.S. 474,
489–90 (1951); M. Elizabeth Magill, “Agency Choice of Poli‐
cymaking Form,” 71 U. Chi. L. Rev. 1383, 1412–13 (2004). So
this was how judicial review would be obtained: The com‐

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Nos. 13‐1954, 13‐2079 7
pany would continue to deal with the union until the results
of the curative election were known. If the union won that
election and was certified by the Board as the collective bar‐
gaining representative of the unit, and the company refused
to accept the result and the Board deemed the refusal an un‐
fair labor practice and sought judicial enforcement of its un‐
fair labor practice order, the company would obtain judicial
review of the Board’s determination that it had committed
an unfair labor practice. And one ground it could raise for
upsetting the determination was that the first election had
been fair and therefore the order refusing to decertify the un‐
ion had been error and so the company should not have
been required to recognize the union and the court should
not enforce the Board’s order that it do so. See, e.g., NLRB v.
E.A. Sween Co., 640 F.3d 781, 782, 784 (7th Cir. 2011); NLRB v.
Lake Holiday Associates, Inc., 930 F.2d 1231, 1233 (7th Cir.
1991); NLRB v. Carl Weissman & Sons, Inc., 849 F.2d 449, 450
(9th Cir. 1988) (per curiam); Timsco Inc. v. NLRB, 819 F.2d
1173, 1175–76 (D.C. Cir. 1987). It isn’t an unfair labor practice
for a company to refuse to recognize a union that should
have been decertified on the basis of the result of the first
election.
Heartland jumped the gun by refusing to recognize the
union before the new election ordered by the Board was
conducted and its results certified. The company argues that
if it can prove that the June 2012 election was fair and square
and the union should therefore be decertified, it and the un‐
ion will be spared the bother of a second election. But sup‐
pose the company fails to prove that and so a new election
has to be conducted; probably by the time it’s conducted,
two years will have elapsed since the first election. Had the
company not withdrawn recognition of the union after the

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8 Nos. 13‐1954, 13‐2079
decertification election, the union would have had no
grounds for filing an unfair labor practice complaint and the
new election would have been conducted promptly. And
had the company lost and wanted the initial election rein‐
stated, it could by withdrawing recognition of the union
have precipitated an unfair labor practice complaint and ob‐
tained, if the Board determined that the refusal of recogni‐
tion was an unfair labor practice, judicial review of that de‐
termination.
But now suppose the second election had been held and
the company had won it fair and square. Then judicial pro‐
ceedings arising out of the first election would be pretermit‐
ted. So while the Board’s procedure for dealing with election
challenges is unquestionably cumbersome because of the
Board’s refusal to conduct a new election while an unfair la‐
bor practice complaint is pending, the procedure suggested
by the company could prove even more cumbersome. For
until the new election is held, there is no jurisdiction to re‐
view the Board’s refusal to decertify the union, and so the
reviewing court can’t adjudicate the dispute between the
company and the Board (and union) over whether the irreg‐
ularities in the original election justified the Board’s refusal
to accept the results of that election. That adjudication must
await the outcome of the curative election and any unfair
labor practice findings that ensue from it. In short, when the
Board orders a new election, judicial review of the first elec‐
tion must abide the second election.
Heartland cites a footnote in NLRB v. Arkema, 710 F.3d
308, 319 n. 10 (5th Cir. 2013), holding that the court of ap‐
peals could review the Labor Board’s order to hold a new
decertification election even though the new election hadn’t

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Nos. 13‐1954, 13‐2079 9
been held yet. That case was different from this one, howev‐
er, because 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 practice
found by the Board was the withdrawal of recognition from
the union after the Board had set aside the result of the first
election and ordered a do‐over. Why that difference should
allow judicial review of the first election is not explained in
the footnote (or elsewhere in the Arkema opinion), and so
there is an unresolved tension between the footnote and the
Supreme Court decisions that we cited earlier that seek to
encourage a prompt new election (when the original election
had been set aside) by refusing to deem the order setting
aside the first election appealable. But we know that a find‐
ing of an unfair labor practice by the Board is appealable; if
the pre‐election unfair labor practices were the only ground
for setting aside the election in Arkema, then a determination
by the court of appeals that the Board had been wrong and
there had been no unfair labor practices would vindicate the
result of the first election.
Although we lack jurisdiction in this case to review the
Board’s order setting aside the election, we have jurisdiction
to adjudicate the parties’ dispute over whether the employer
committed an unfair labor practice in refusing to recognize
the union when the union had not yet been decertified after
the first election. We conclude that the employer did commit
an unfair labor practice. For remember that when it with‐
drew recognition, the potentially decisive ballot hadn’t been
opened, so it couldn’t be confident that it would win (by a
tie vote); and this was apart from the other objections that
the union raised to the conduct of the election. The Labor
Board has held that “employers should not be allowed to

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10 Nos. 13‐1954, 13‐2079
withdraw recognition merely because they harbor uncertain‐
ty or even disbelief concerning unions’ majority status.”
Levitz Furniture Co. of the Pacific, Inc., 333 N.L.R.B. 717, 717
(2001). “An employer may unilaterally withdraw recognition
from an incumbent union only where the union has actually
lost the support of the majority of the bargaining unit em‐
ployees.” Id. (emphasis added). (Oddly, Heartland cites a
footnote in the Arkema case that endorses the Levitz standard.
710 F.3d at 320 n. 11.)
To summarize, the Board’s order refusing to decertify the
union and instead ordering an election do‐over is outside
our jurisdiction to review at this time, because the result of
the old election has not been vindicated by proof that the un‐
ion lost the support of a majority of the members of the bar‐
gaining unit and because a new election hasn’t been held. So
the union remains certified and the employer must continue
to recognize it unless and until it’s decertified. And since the
employer has without justification withdrawn recognition of
the union, the Board’s unfair labor practice order is
ENFORCED.

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