In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2577

General Service Employees Union,
Local No. 73, SEIU, AFL-CIO, CLC,

Petitioner,

v.

National Labor Relations Board,

Respondent.



Petition to Set Aside Decision
of the National Labor Relations Board.
Nos. 13 CA 33078 & 13 CA 33382


Argued February 10, 2000--Decided October 16, 2000




  Before Flaum, Chief Judge, and Coffey and Diane P.
Wood, Circuit Judges.


  Diane P. Wood, Circuit Judge. 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.

  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.


  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.


  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:

. . . [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.

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.


  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.


  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).


  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.


  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.


  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.


  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.


  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-a-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").
  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).

  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.


  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).


  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).


  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.


  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


  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.



/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.
