In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 01-2894

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

and

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

LOCAL #731, AFL-CIO,

Intervenor,

v.

ORLAND PARK MOTOR CARS, d/b/a MERCEDES

BENZ OF ORLAND PARK,

Respondent.

____________

On Application for Enforcement of an

Order of the National Labor Relations Board

Nos. 13-CA-38061 and 13-CA-38185

____________

ARGUED APRIL 16, 2002—DECIDED OCTOBER 29, 2002

____________

Before CUDAHY, COFFEY and WILLIAMS, Circuit Judges.

COFFEY, Circuit Judge. Mercedes Benz of Orland Park

operates a car dealership in south suburban Cook County,

Illinois. In August 1999, the company’s non-mechanical

service employees (consisting of car drivers, porters, detailers, and parts department employees) voted to join the

International Brotherhood of Teamsters Local #731 and

thereafter went on strike. The purpose of the strike was
2 No. 01-2894

1 When this case was originally tried before an administrative

law judge, the company disputed the allegation that it violated

any provisions of the Act. In this court, however, the company has

elected to contest only the Board’s choice of remedies and argue

that “the National Labor Relations Board erred in its finding that

a Gissel bargaining order was an appropriate remedy.” (Br. at 9.)

“The Company does not challenge the Board’s finding that it

committed unfair labor practices in its efforts to thwart the Union

election campaign, and therefore this part of the Board’s Order is

summarily enforced.” Livingston Pipe & Tube Inc. v. NLRB, 987

F.2d 422, 425-26 (7th Cir. 1993).

to pressure the dealership to recognize the union as the

employees’ bargaining agent and to protest various unfair

labor practices that the workers alleged were being committed by the company. The National Labor Relations

Board subsequently concluded—and the employer did

not dispute on appeal1

—that certain of the dealership’s

managers violated the National Labor Relations Act

when due to anti-union animus they discharged or threatened to discharge several employees, coerced striking employees through the use of surveillance tactics, abandoned

their commitment to improve the employees’ benefit plans,

and refused to allow any striking employees to return to

work despite their unconditional offers to do so. The Board

thereafter issued an order directing the company to enter into good-faith bargaining with the union. 333 NLRB

No. 127. We enforce the order of the Board.

I. FACTUAL BACKGROUND

Michael Chiarito, a porter at Orland Park Motor Cars’s

Mercedes-Benz dealership, arranged for officials from

Teamsters Local #731 to meet with the company’s nonmechanical service employees in late August 1999 for the

purpose of discussing the possibility of securing union representation. Chiarito obtained signed union authorization
No. 01-2894 3

cards from twelve out of the twenty-one workers (approximately fifty-seven percent of the workforce) between August

24 and August 30 and thereafter notified the Teamsters of

the employees’ wishes to join the union.

Chiarito’s attempt to organize his fellow employees was

opposed by members of Orland Park’s management team.

For example, during the union membership drive, the company’s service manager, Michael Maus, asked two employees, “Who started the union?” and stated that when he

found out the organizer’s name he would “f---king fire” the

man. Maus later made similar threats in the presence of

Chiarito. The company’s vice-president and general manager, Barry Taylor, allegedly advised several employees

that they should vote against the union because “any

organizational drive would be futile.” Taylor also called a

meeting with the employees on August 30, 1999 and was

alleged to have told them that in light of the union activity

he was withdrawing his previously expressed commitment

to improve the firm’s employee benefit plan. Orland Park

has not challenged the Board’s ruling that Maus and

Taylor’s actions were motivated by an intent to undermine

majority support for the union.

After the conclusion of Taylor’s meeting and comments to

the employees on August 30, union officials approached

Taylor in his office and demanded that Orland Park recognize Teamsters Local #731 as their collective bargaining

representative. When Taylor refused, the employees walked

off the job and set up a picket line on the sidewalk in front

of the entrances to the dealership. The Board found—and

the company did not contest during oral argument—that

certain Orland Park officials participated in a number of

unfair labor practices during the month-long strike. For

example, on September 2, the company’s finance and insurance manager, Todd Koleno, paused while walking

through the picket line and informed the picketers that they

were “going to be fired” or otherwise lose their jobs. The
4 No. 01-2894

2 Orland Park subsequently mailed letters to some of the employees stating that they had been placed on a “preferential hiring

list,” but only one man was offered a position—and this offer was

not made until December 23, 1999, just two weeks prior to the

commencement of the initial hearing in this case before the National Labor Relations Board.

company’s dispatcher, Al Sizemore, followed through on this

threat the following day by terminating Brad Patrylak, an

employee who was on strike at the time. When Patrylak

approached Sizemore’s desk and attempted to pick up his

paycheck for work performed prior to the strike, Sizemore

handed Patrylak his check and advised him that this was

his “last” check, for he was fired “like the rest of them

outside.” Almost four weeks later, despite the fact that

many of the strikers had made unconditional offers to

return to work on September 29, General Sales Manager

David Nocera terminated Chiarito and further stated that

the remaining employees who had participated in the strike

also “were no longer employees of the company.”2

The administrative law judge found that the company’s

actions violated three separate provisions of the Act. Specifically, the judge ruled that the employer: (1) violated

§ 8(a)(1) of the Act by coercing or interfering with the

employees’ right to form and join a labor union; (2) violated

§ 8(a)(3) of the Act by engaging in discriminatory hiring

practices in order to discourage the employees from forming

and joining a labor union; and (3) violated § 8(a)(5) of the

Act by refusing to bargain with Teamsters Local #731 after

the union had been designated by the employees as their

collective bargaining agent of choice. The Board determined

that the appropriate remedy for Orland Park’s unlawful

activity was to: (1) order Orland Park to cease and desist its

unfair labor practices; (2) offer full reinstatement with back

pay to any striking employee who was discharged; and (3)

engage in collective bargaining with the union.
No. 01-2894 5

II. DISCUSSION

This matter comes before the court on a petition for

enforcement filed by the National Labor Relations Board.

The sole argument raised by Orland Park in opposition to

the Board’s petition is that it was improper for the Board to

order the company to initiate collective bargaining with the

Teamsters union. We review the Board’s decision to impose

a bargaining order for an abuse of discretion. NLRB v.

Intersweet Inc., 125 F.3d 1064, 1067 (7th Cir. 1997).

Congress has entrusted the Board with eliminating the

effects of an employer’s unfair labor practices and protecting the rights of employees to determine, in an environment

free of coercion and interference, whether or not to join a

labor union of their choice. If a majority of employees have

signed authorization cards designating a particular union

as their representative, but the employer has engaged in

unfair labor practices during an organizational campaign

which have had “the tendency to undermine majority

strength and impede election processes,” then after a hearing the Board is empowered to certify the designated union

and order the company to enter into collective bargaining

with that union. NLRB v. Gissel Packaging Co., 395 U.S.

575, 614 (1969).

The agency is required to conduct a fair, impartial, and

detailed analysis before imposing a bargaining order so as

to rule out the possibility that other less intrusive measures

would compensate for the damages caused by an employer’s

unfair labor practices. Orland Park maintains that the

Board improperly imposed a bargaining order in this case,

alleging that the Board failed to explain why other remedies (such as issuing a cease-and-desist order and holding

another election in a closely monitored environment free of

coercion) would have been insufficient to protect the organizational rights of the company’s employees. The employer

relies heavily on Peerless of America Inc. v. NLRB, 484 F.2d

1108 (7th Cir. 1973), to support the position that a bargain-
6 No. 01-2894

ing order is inappropriate. In Peerless, we stated that the

Board’s decision to issue such an order must be accompanied by “ ‘specific findings’ as to the immediate and residual

impact of unfair labor practices on the election process . . .

and ‘a detailed analysis’ assessing the possibility of holding

a fair election . . . and the potential effectiveness of ordinary

remedies.” Id. at 1118. Orland Park argues that the Board’s

order in the case before us, like the order in Peerless, fails

to contain the “detailed analysis” and justification of the

Board’s choice of remedies that is required by our case law.

We disagree with the company.

Orland Park’s discussion of the applicable legal standards

ignores this Circuit’s post-Peerless cases, which have elaborated upon the “detailed analysis” requirement and made

clear that the Board’s analysis needs only to be sufficiently

detailed to “permit the court to perform its task of judicial

review.” Justak Brothers v. NLRB, 664 F.2d 1074, 1081 (7th

Cir. 1981). “Although we will find an abuse of discretion if

the Board fails to adequately consider alternatives and

explain its choice, we will not otherwise disturb the Board’s

decision unless it can be shown that the order is a patent

attempt to achieve ends other than those which can fairly

be said to effectuate the policies of the Act.” Intersweet, 125

F.3d at 1068 (quotation omitted). As we stated in Justak

Brothers, 664 F.2d at 1081, the “detailed analysis” requirement enunciated in Peerless should be understood in light

of its purpose of insuring judicial review of the Board’s

orders. The requirement

is meant neither to burden the Board nor to curtail the

issuance of bargaining orders. Elaborate explanations

are not essential; indeed, scientific accuracy in estimating the impact of unfair labor practices is impossible.

Rather we only require that the Board delineate the

factors that it considers in its estimation and describe

how those factors have been weighed.

Id.
No. 01-2894 7

The company’s argument that the Board should have

made “more specific findings” appears to be a disingenuous

attempt to force the Board to provide the type of “elaborate

explanations” that Justak Brothers, Intersweet, and other

cases have determined to be unnecessary. Upon review, we

hold that the Board complied with its mandate under the

law to explain and justify its decision when issuing the

bargaining order in this case. See America’s Best Quality

Coatings Corp. v. NLRB, 44 F.3d 516, 522 (7th Cir. 1995);

NLRB v. Berger Transfer, 678 F.2d 679, 694-95 (7th Cir.

1982). Initially, the Board identified and discussed the

company’s undisputed unfair labor practices, such as its

repeated threats to discharge labor organizers, its termination of a leading and outspoken union organizer, its retaliatory refusal to implement previously advertised improvements to the firm’s employee benefits plan, its coercive

surveillance of employees on the picket line, and its refusal

to reinstate the striking employees despite their unconditional offer to return to work. The Board reasonably found

that such violations were likely to chill the employees’

future exercise of organizational rights, for the violations:

(1) were committed by no less than three senior managers

in the company who remained in positions of authority as

of the date of the Board’s order; (2) were widely known by

the employees in the putative bargaining unit; (3) began

within days of the organizational drive and continued

throughout the month-long strike; and (4) never were

repudiated by the company. In addition, the Board reasonably determined that an election would be infeasible and

would fail to reflect the true attitudes of the workers because most employees “would not likely risk again incurring

the company’s wrath and another period of unemployment

by resuming their union activities.” Finally, the Board

rejected the company’s argument that a bargaining order

would undermine the § 7 rights of any employees who might

oppose joining the union, stating that these workers will

remain free to call for an election to decertify the bargain-
8 No. 01-2894

ing unit at some point in the future if the union fails to

represent their interests. 29 U.S.C. § 159(c)(1).

We recognize that in many cases an employer has the

right to request a representation election if a majority of

employees have signed union authorization cards designating a particular union as their collective bargaining agent.

However, the Board may determine that the employer has

forfeited its right to call for an election by engaging in

conduct that is likely to undermine majority support for the

labor organization and disrupt the potential for fair elections. See Gissel, 395 U.S. at 612-15. In the case before us,

the NLRB concluded that Orland Park’s unfair labor practices were so pervasive that any election would be unlikely

to reflect the true sentiment of the service employees who

were members of the putative bargaining unit. The Board’s

analysis has allowed for meaningful judicial review and has

explained the basis of its decision. Because the Board’s

order is lawful, rational, supported by substantial evidence,

and sufficiently detailed in compliance with existing case

law, we are obligated to enforce the order as issued. See,

e.g., America’s Best, 44 F.3d at 522; NLRB v. Q-1 Motor

Express Inc., 25 F.3d 473, 481-82 (7th Cir. 1994); Berger

Transfer, 678 F.2d at 694-95.

In reaching this decision, we reject the employer’s

argument that the Board should have provided a more

extensive discussion regarding whether mitigating circumstances, such as employee turnover, have defeated the need

for a bargaining order. It might very well have been an

abuse of discretion if the Board had ignored evidence

presented by the employer establishing that relevant

circumstances at the company had significantly changed

between the time of the employer’s unfair labor practices

and the time that the Board’s bargaining order was issued.

See Impact Indus. v. NLRB, 847 F.2d 379, 383 (7th Cir.

1988). However, the burden rests on the employer to

present the Board with evidence of turnover prior to raising
No. 01-2894 9

such an argument in federal court. The Board has no

affirmative duty to inquire into employee turnover unless

the issue is first raised by the employer. NLRB v. USA

Polymer Corp., 272 F.3d 289, 295-96 (5th Cir. 2001);

Traction Wholesale Center Co. v. NLRB, 216 F.3d 92, 108

(D.C. Cir. 2000). Orland Park failed to argue the issue of

turnover before the Board, and thus it cannot do so now.

LSF Transp. Inc. v. NLRB, 282 F.3d 972, 983 (7th Cir.

2002); 29 U.S.C. § 160(e).

III. CONCLUSION

We hold that the Board’s analysis has adequately identified and discussed the unfair labor practices committed by

Mercedes Benz of Orland Park, demonstrated that the effect

of these unlawful practices undermined the potential for a

fair election, and balanced the relevant interests prior to

issuing a bargaining order in the case before us. The order

of the Board is ENFORCED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—10-29-02