230 F.3d 909 (7th Cir. 2000)
General Service Employees Union,  Local No. 73, SEIU, AFL-CIO, CLC, Petitioner,v.National Labor Relations Board, Respondent.
No. 99-2577
In the  United States Court of Appeals  For the Seventh Circuit
Argued February 10, 2000Decided October 16, 2000

Petition to Set Aside Decision  of the National Labor Relations Board.  Nos. 13 CA 33078 & 13 CA 33382[Copyrighted Material Omitted]
Before Flaum, Chief Judge, and Coffey and Diane P.  Wood, Circuit Judges.
Diane P. Wood, Circuit Judge.


1
The National Labor  Relations Act (the Act) sets forth the general  framework under which employees and management  structure their relationships, whether in a union  context or a non-union context. This case  requires us to decide whether the Board strayed  beyond the permissible boundaries of  interpretation of the Act when it decided that a  prohibition against certification of so-called  mixed unions (including both security guards and  non-guards) really meant that such unions were  for many purposes entirely outside the scope of  the Act. We conclude that the Board pushed  further than the Act permits when it concluded  that a prohibition against certifying certain  types of unions under the terms of section  9(b)(3), 29 U.S.C. sec. 159(b)(3), also meant  that the unions were otherwise unprotected under  the statute. We therefore set aside the Board's  decision and remand for further proceedings.


2
Temple Security provides security services for  various clients, through security guards that it  employs. On September 2, 1986, Temple voluntarily  recognized the General Service Employees Union  (Union) as the representative of all of its  employed guards. Temple and the Union entered  into a collective bargaining agreement (CBA), and  for several years they maintained a smooth  relationship, renewing their CBA every two years.  The latest of these CBAs was effective from  October 1, 1992, until December 31, 1994. On  October 4, 1994, the Union, in keeping with the  parties' usual practice, sent Temple a letter  indicating that it was ready to begin  negotiations for the next two year contract.  Temple abruptly and unilaterally informed the  Union that it planned to discontinue their  relationship at the end of the contract term,  December 31, 1994. Nine days later it recognized  a new union (the Independent Courier Guards  Union, or ICG) as its guards' representative and  signed a CBA with this new union on January 31,  1995.


3
The Union filed charges with the National Labor  Relations Board (the Board), claiming that  Temple's refusal to bargain and its recognition  of a new union violated sections 8(a)(5), (3),  (2), and (1) of the National Labor Relations Act  (the Act). The Board and the parties agreed to  skip the step of going to an Administrative Law  Judge, and on May 28, 1999, the Board issued an  order against the Union. The key fact, in the  Board's view, was that the Union admitted both  guards and non-guards to its membership, and  hence was a "mixed" union for purposes of section  9(b)(3). That section prohibits the Board from  certifying mixed unions as the representative of  employees in the bargaining unit, but it says  nothing about their status for other purposes  under the Act. Nonetheless, the Board reasoned  from the prohibition on certification that the  Union also had no rights under section 8 that it  could enforce, and it rejected all the Union's  claims.


4
We review the Board's decision deferentially.  See NLRB v. Transport Service Co., 973 F.2d 562,  566 (7th Cir. 1992). The facts below are not  contested; we examine only the Board's legal  conclusions to determine whether they are  irrational or inconsistent with the Act. See id.  Our review is also constrained by the analysis  set forth in Chevron U.S.A. Inc. v. Natural  Resources Defense Council, Inc., 467 U.S. 837  (1984). The Supreme Court recently summarized the  approach required by Chevron as follows


5
. . . [A] reviewing court must first ask whether  Congress has directly spoken to the precise  question at issue. If Congress has done so, the  inquiry is at an end; the court must give effect  to the unambiguously expressed intent of  Congress. But if Congress has not specifically  addressed the question, a reviewing court must  respect the agency's construction of the statute  so long as it is permissible.


6
FDA v. Brown & Williamson Tobacco Corp., 120 S.  Ct. 1291, 1300 (2000) (internal quotations and  citations omitted). Brown & Williamson also made  clear that the determination of whether Congress  has specifically addressed a point is a  contextual one, and that "[t]he meaning--or  ambiguity--of certain words or phrases may only  become evident when placed in context." Id. at  1300-01.


7
The Court has made it clear in a number of  decisions that the NLRB is one of the agencies to  which Chevron deference is owed. See, e.g., Holly  Farms Corp. v. NLRB, 517 U.S. 392, 398-99 (1996);  NLRB v. Town & Country Electric, Inc., 516 U.S.  85, 90 (1995); Lechmere, Inc. v. NLRB, 502 U.S.  527, 536 (1992). Nonetheless, that means the  Chevron doctrine in its entirety both the part  that requires a court to defer when ambiguities  exist, and the part that requires a court to  enforce the plain terms of a statute against the  agency when there is no ambiguity. It is in that  light, therefore, that we approach the question  whether the limitation on certification found in  section 9(b)(3) has the broad implications the  Board attributed to it.


8
The Act considers guards "employees." See 29  U.S.C. sec.sec. 152, 159. It grants employees  rights to join labor unions and bargain  collectively in section 7. See 29 U.S.C. sec.  157. In section 8(a), it limits employer activity  in order to protect those section 7 rights pertinent to our discussion here, section 8(a)(1)  prohibits employers from interfering with,  restraining, or coercing employees in the  exercise of their section 7 rights; section  8(a)(3) forbids employers from discriminating in  regard to hiring or any term or condition of  employment to encourage or discourage employee  membership in a labor union; and section 8(a)(5)  prohibits an employer from refusing to bargain  collectively with a representative union. See 29  U.S.C. sec.sec. 158(a)(1), (3), and (5).


9
The duty to bargain and to refrain from  instituting unilateral changes in wages and  working conditions under section 8(a)(5) normally  outlives the parties' CBA. An employer is  required to "maintain the status quo after the  expiration of a collective bargaining agreement  until a new agreement is reached or until the  parties bargain in good faith to impasse." NLRB  v. Emsing's Supermarket, 872 F.2d 1279, 1285 (7th  Cir. 1989) (internal quotations omitted); see  also Peerless Roofing Co. v. NLRB, 641 F.2d 734,  736 (9th Cir. 1981). This rule is designed to  promote industrial peace by protecting the  stability of long term employer-union  relationships. See Fall River Dyeing & Finishing  Corp. v. NLRB, 482 U.S. 27, 38 (1987). The  enforcement of the status quo ante during  renegotiations helps to ensure that the employer  will not be able to exercise an unfair advantage  by threatening to remove all the concessions for  which the union has previously bargained. See  Peerless Roofing, 641 F.2d at 736.


10
The twist here is that, as a mixed-guard union,  the Union was not entitled at the outset to be  certified as the representative of its employees.  Nothing in section 9(b)(3), however, forbids an  employer from voluntarily recognizing such a  union. (We note as well that section 9(b)(3)  looks nothing like section 8(a)(2), 29 U.S.C.  sec. 158(a)(2), which absolutely forbids  employer-dominated unions. See NLRB v. Newport  News Shipbuilding & Dry Dock Co., 308 U.S. 241,  251 (1939).) The Board insists that the fact that  certification is forbidden has consequences  beyond the usual benefits that go along with  certification (about which we have more to say  below). It reasons that the prohibition found in  section 8 against employer unilateral action  after a CBA has expired cannot apply to a union  whose role in the workplace began with voluntary  recognition. Instead, it continues, once the term  of a CBA is up, the Act entirely ceases to apply  to the parties. One could imagine policy  arguments both for and against the Board's  position proponents would argue that there  should be a way of ending a voluntary  relationship, while opponents would point out  that this position runs counter to the Act's  policy of attempting to ensure fair and smooth  CBA renegotiations in order to promote stable,  long term employer-union relationships. In our  view, however, the policy arguments are all  beside the point (and thus we have no duty to  defer to the Board's preferred policy), because  the exception proposed by the Board is simply not  a part of the Act's plain text.


11
The Board relies on a Second Circuit decision,  Truck Drivers Local Union No. 807 v. NLRB, 755  F.2d 5 (2d Cir. 1985), which upheld Wells Fargo  Armored Service Corp., 270 NLRB 787 (1984), to  support its position. The Truck Drivers and Wells  Fargo argument proceeds as follows (1) section  9(b)(3) of the Act states that the Board may not  certify a unit represented by a mixed-guard  union; (2) the purpose of this prohibition is to  prevent potential intra-union conflicts between  guards and non-guards; and (3) (here is the  imaginative leap) requiring maintenance of the  status quo under section 8(b)(5) of the Act after  the term of the CBA has expired is analogous to  requiring certification of the unit; since the  Act prohibits the latter, it must prohibit the  former.


12
The Truck Drivers court, writing before the  Supreme Court had elaborated upon the Chevron  test, first saw this as a case in which it was  obliged to defer to the Board's interpretation of  the statute. After acknowledging both the  prohibition on certification for mixed unions and  the validity of voluntary recognition of such  unions, it examined in some detail the  legislative history of section 9(b)(3), which it  found was directed toward the risk of divided  loyalties when a guard is called upon to enforce  the employer's rules against a fellow union  member. Last, the court thought that it was  "reasonable to infer from the statutory language  and the decisions under it that the preclusion of  certification portends more than merely a simple  check on the Board's power to certify the results  of an election." 755 F.2d at 9-10. In other  words, the court seemed to be saying, it is  reasonable to infer that prohibiting  certification means something more than  prohibiting certification.


13
With part of this we have no disagreement.  Section 9(b) plainly cabins the power of the  Board to certify appropriate bargaining units.  See 29 U.S.C. sec. 159(b). Section 9(b)(1)  prohibits the Board from deciding that a unit  including professionals and non-professionals is  appropriate unless a majority of the  professionals vote for inclusion. See id. Section  9(b)(3) does two things. First, it prohibits the  Board from deciding that a unit including guards  and non-guards is appropriate. See id. Second, it  explains that "no labor organization shall be  certified as the representative of employees in  a bargaining unit of guards" if that labor  organization is a mixed-guard union. Id.  (emphasis added). Section 9(b)(3), then, does not  prohibit the Board from finding that units made  up solely of guards are appropriate. The only  limitation on the Board's power vis- -vis units  including guards is that, under 9(b)(3), the  Board may not certify unions to represent them if  the union also includes non-guards (i.e. it is  "mixed").


14
We do not agree, however, that there is any  need to look beyond the language of the Act to  understand the scope of the limitation created by  section 9(b)(3). See Air Line Pilots Ass'n,  Intern. v. United Air Lines, Inc., 802 F.2d 886,  914 (7th Cir. 1986). The Act clearly describes  the certification process, and in so doing it  provides the kind of context for understanding  section 9(b)(3) that the Supreme Court called for  in Brown & Williamson. Section 9 lays out a  process by which employees, labor organizations,  and employers may petition the Board to conduct  an election and then to certify the results. See  29 U.S.C. sec. 159. An employer also has a right,  under section 9(c), to petition the Board and  force a union claiming to represent a majority of  employees in an appropriate unit to undergo a  Board-certified election. See 29 U.S.C. sec.  159(c); Exxel/ Atmos, Inc. v. NLRB, 28 F.3d 1243,  1246 (D.C. Cir. 1994). Once a unit has been  certified by the Board, the representative union  is protected from interference with its  representation by other unions, the employer, and  even dissatisfied employees for a period of one  year (a breaking-in period). See 29 U.S.C. sec.  159(c).


15
This certification process is not the only way  for a union to become a representative under the  Act. An employer may also extend the Act's  coverage to its relationship with a union  representing a majority of a group of its  employees by voluntarily recognizing the union.  See NLRB v. Gissel Packing Co., 395 U.S. 575, 600  (1969); Lincoln Park Zoological Soc. v. NLRB, 116  F.3d 216, 219 (7th Cir. 1997). Importantly, there  are differences between a certified union and a  voluntarily recognized union. A voluntarily  recognized union is not entitled to the special  privileges afforded to Board-certified unions those privileges include the section 9(c)(3) one-  year non-rebuttable presumption of majority  status; the section 8(b)(4)(C) prohibition  against recognitional picketing by rival unions;  and the freedom from work assignments disputes  restrictions in section 8(b)(4)(D) and from  restrictions on recognitional and organizational  picketing in section 8(b)(7). See 29 U.S.C.  sec.sec. 159, 158; Gissel Packing Co., 395 U.S.  at 599 n.14.


16
On the other hand, voluntarily recognized unions  are entitled to the basic protections of the Act: "[c]ertification gives an organization which  achieves it additional rights[,] not all its  rights." NLRB v. White Superior Division, White  Motor Corp., 404 F.2d 1100, 1103 n.5 (6th Cir.  1968). "Section 9(b)(3) is a limitation not upon  employee rights [(such as those found in sections  7 and 8 of the Act)] but upon Board powers." NLRB  v. Bel-Air Mart, Inc., 497 F.2d 322, 327 (4th  Cir. 1974). Thus, voluntarily recognized unions  and the employees represented by them are still  protected by 8(a)(5)'s duty to bargain. See  Gissel Packing Co., 395 U.S. at 600. The Act does  not hinge employees' section 7 rights, or their  section 8 protections, on certification; neither  section 7 nor section 8 mentions the term. See 29  U.S.C. sec.sec. 157, 158; Bel-Air Mart, 497 F.2d  at 327. To qualify for section 7 and section 8  protections, a union must simply be a  "representative[ ] of [the] employees." 29 U.S.C.  sec. 158(a)(5). Representatives include all of  those unions "designated or selected for the  purposes of collective bargaining by the majority  of the employees in [an appropriate] unit." 29  U.S.C. sec. 159(a).


17
In keeping with these principles, courts  normally apply the Act's protections to  voluntarily recognized unions. For example,  sections 7, 8(b)(3), and 8(b)(1) have been found  to apply to protect guard employees from their  employer's attempts to discourage their  membership in a mixed-guard union. See White  Superior, 404 F.2d at 1103 (refusing to create an  exception to section 8(b)(3) for uncertified  unions, because Congress did not do so); see also  Bel-Air Mart, Inc., 497 F.2d at 327-28. Section  8(a)(5) has also been found to apply whether or  not certification has occurred. See NLRB v.  Montgomery Ward & Co., 399 F.2d 409, 412-13 (7th  Cir. 1968) (finding that a voluntarily recognized  union representative, just like a certified  representative, must be bargained with, in good  faith, for a reasonable time before a  decertification petition will be allowed). The  Board itself has found that the Act's contract-  bar rule applies to uncertifiable mixed-guard  union representatives to protect parties to  collective bargaining agreements from outside  petitions. See Stay Security and United Union of  Security Guards, 311 NLRB 252, 252-53 (1993).


18
We may not attribute more to certification than  Congress has chosen to. Creating an exception to  section 8(a)(5) protections based on  uncertifiability would do just that. The Act  specifically limits mixed-guard unions only with  respect to Board certification. It attaches  particular benefits to certification, and it  refrains from conditioning the benefits of  sections 7 and 8(a) on certification. This has  the effect of establishing a balance between the  right of an employer to protect its property, and  "the importance of stability in collective  bargaining agreements." Stay Security, 311 NLRB  at 252-53. Part of that balance is the Act's  determination that its concern for an employer's  property rights "is not undermined when the  employer voluntarily waives its 9(b)(3) rights  and recognizes a guard/nonguard union for a unit  of guards." Id. Contrary to the Board's  arguments, voluntary recognition does not  permanently lock the parties into their  relationship. An impasse in good-faith  bargaining, or a showing, after a reasonable  time, of minority rather than majority support,  will both allow an employer to end its pairing  with a recognized representative (whether that  recognition began voluntarily or through more  formal processes). We express no opinion at this  juncture on the question whether either of those  exceptions--particularly the majority support  requirement, given the fact that there is now  another union representing these guards--might  defeat the Union's claim here. Questions like  that are best left to the Board's consideration  on remand.


19
Other courts have accepted the Act's balancing  of section 9(b) interests with the general  policies of the Act, refusing to create  exceptions to section 8(b)(5) based on concerns  dealt with elsewhere in the Act. See, e.g.,  International Tel. & Tel. Corp. v. NLRB, 382 F.2d  366, 369-71 (3d Cir. 1967) (finding that a mixed  unit of professional and non-professional  employees, though frowned upon within section 9  of the Act, was still protected by section  8(a)(5)'s bargaining requirement). We similarly  decline to create an exception to the application  of section 8(b)(5) for mixed unions.1


20
The Union's petition to set aside the decision  of the National Labor Relations Board is Granted,  and the case is Remanded for consideration of the  Union's section 8 claims.



Notes:


1
 Because our decision disagrees with that of the  Second Circuit in Truck Drivers Local Union No.  807 v. NLRB, 755 F.2d 5 (2d Cir. 1985), this  opinion has been circulated to all judges in  active service under Circuit Rule 40(e). A  majority of the judges voted against hearing this  case en banc; Judge Ripple voted to hear the case  en banc.


