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 employers,

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 dealership and its parent company’s efforts to frustrate their employees’ rights to organize. An administrative law judge 

found that the petitioner-employers engaged in a series of unfair labor practices aimed at coercing their employees’ choices 

in the run-up to a December 2008 union election and frustrating their employees’ protected concerted activities after the 

election. The judge also found that petitioners fired an employee due to anti-union animus and after the election unlawfully made multiple changes to employees’ working conditions 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. Having 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 engage 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. Finally, in Part V we review the findings that petitioners violated § 8(a)(5) of the Act by failing to bargain with the union 

over changes they made to terms and conditions of employment.

I. Factual and Procedural Background

Petitioner Contemporary Cars, which we call the “dealership,” does business as Mercedes-Benz of Orlando and sells 

and services cars in Maitland, Florida. Bob Berryhill, the dealership’s general manager, is responsible for the dealership’s 

overall operations. Petitioner AutoNation owns the dealership, 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 October 2008, although it has since shrunk to twenty-five. The 

dealership divided technicians into three teams, each supervised by a team leader. The dealership paid technicians by the 

job rather than by the hour: it assigned each service task a specific 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, technicians sat idle and took home less pay. A technician’s “skill rating,” 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 organize the service technicians. Over the summer, the technicians 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 relatively quiet. Higher levels of dealership management seem 

not to have known about the union effort, but team leader Andre Grobler must have known. On two occasions over the 

summer, Grobler commented to a technician that the technician 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 technicians about the union activity. He also asked them if they had 

any problems with how things were run at the dealership. According to one technician, Berryhill said he was working on 

the problems the technician brought up. 

On October 3, 2008, the union filed its representation petition. 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 determination, 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 Grobler’s interrogation of employees also continued. On December 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 problems 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 managers at the dealership about laying off technician Anthony Roberts, who was then playing a leading role in the union organizing. 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 substantial 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 February, without attempting to bargain with the union, the dealership reduced the “book times” for some pre-paid maintenance 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 determine 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 exclusive representative of a bargaining unit consisting of service 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 Supreme 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 Regional Director’s determination. Contemporary Cars, Inc., 355 

NLRB 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 sections 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 ordered 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 decision 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 remanded 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 activities 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 employment 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 employees’ 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 engaged 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 substantial 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 quotation marks omitted). This requires “more than a mere scintilla” 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 contrary 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 interpreting 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 & Ornamental Iron Workers, 434 U.S. 335, 350 (1978). And we give particular 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 Seating 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 affirmed, that the dealership and AutoNation in a number of 

instances acted unlawfully to frustrate their employees’ protected rights to engage in concerted activity and to organize a 

union. The judge’s findings are supported by substantial evidence 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 employee grievances. Employer conduct that “reasonably tends 

to interfere with, restrain, or coerce employees in the free exercise 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 unlawful impression of surveillance when manager told an employee that he knew “all about” a union meeting and told another employee that he knew two employees had gone to the 

meeting). Under Board precedent, this occurs when an employee “reasonably could conclude” from the circumstances 

that surveillance was taking place. Sam’s Club, 342 NLRB 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 Cazorla’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 meeting. 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. Employees opposed to the union, such as James Weiss, were unable to find out when and where union meetings were held. 

It would have been reasonable for Cazorla to infer from Grobler’s comments that his union activities were under management 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 coercively interrogated technician Larry Puzon about his union 

activity. Whether interrogation is coercive depends on the circumstances 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 otherwise had shown hostility to the union.” Multi-Ad Services, Inc. 

v. NLRB, 255 F.3d 363, 372 (7th Cir. 2001). Other important factors are whether guarantees against reprisals accompany the 

questioning and “whether the interrogated worker feels constrained to lie or give noncommittal answers rather than answering truthfully.” Id.

Here, Puzon testified that three or four times starting in 

October 2008, Grobler asked him one-on-one about his attendance 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, although he had, because he knew that Grobler was “for management.” The judge credited Puzon’s testimony about the incidents. Many factors thus support the judge’s finding of coercive interrogation in violation of § 8(a)(1) of the Act: the timing 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 guarantees against reprisals for union support, and the fact that 

Puzon felt compelled to lie about his union support. We affirm the Board’s finding on this violation.
Nos. 14-3723 & 15-1187 13

3. General Manager Berryhill’s Interrogations and Solicitation 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 testified that on September 25, 2008, Berryhill called them individually into his office and asked them about union activity. The 

dealership’s service director was also present. Berryhill admitted 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 outnumbered 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 express 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 technicians 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 Technician 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 evidence 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 adjusted 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 technicians 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 improvements 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 demotions 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 Davis 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 administrative law judge to conclude that this question—coming oneon-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 affirm 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 Anthony 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 complaints and, upon hearing that management had been unresponsive to employee complaints in the past, said that employees could call him or talk to him at any time. This meeting 

was part of a series of approximately ten meetings that management 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 October 2009, ten months after the election. Here, the Board disagreed 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 employee leave the restroom without washing his hands. Catalano discussed this with other employees, and they communicated their concerns to the dealership’s sales manager. The 

manager arranged for a speaker from the county health department to visit the dealership. The speaker gave a presentation to employees focused largely on the flu virus. At the end 

of the presentation, after the speaker asked for questions, Catalano said that the presentation had not addressed his concerns 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 courteous 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 remarks 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 official who was aware of employees’ concern; what is relevant 

is that his comments furthered employees’ protected concerted activity addressing sanitary restroom habits, an employment 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 outside 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 legislation 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 because 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 NLRB 1315, 1317 (2003) (conduct was unprotected when a union member said that allowing iron workers to work for the company was “like throwing 

babies into the Merrimack River”); Atlantic Steel Co., 245 

NLRB 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 statement to management was so egregious that it forfeited the 

Act’s protection, the Board examines: “(1) the place of the discussion; (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 protection). The Board did not err by finding that Catalano’s behavior 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). Activity 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 engaging in protected activity); see also Lancaster Fairfield Community Hospital, 311 NLRB 401, 403 (1993) (“report” by employer 

asking employee to stop engaging in protected concerted activity violated § 8(a)(1) although it fell short of formal discipline). The Board could reasonably conclude that the coaching 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 absent 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 requirement. 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 welltailored 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 violated § 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 finding 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 considering any objection not urged before Board absent extraordinary circumstances); U.S. Marine Corp. v. NLRB, 944 F.2d 1305, 

1314 (7th Cir. 1991) (summarily enforcing Board determina-

 3 Here, 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 uncontested violation, while not in dispute in this appeal, remains 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 discriminate in hiring, “tenure of employment or any term or 

condition of employment to encourage or discourage membership 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 

NLRB 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 activities, and there was a causal connection between the animus and the implementation of the adverse employment action.” 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 antiunion animus. Id. The Board may then conclude that the employer’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 substantial 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 union. The Board also found that the dealership’s stated reason 

for firing Roberts—that he lacked sufficient electronic diagnostic 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 admitted having talked often with Weiss about the union organizing 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 The administrative law judge did find that, as of September 25, Roberts had not yet openly identified himself to management as a union supporter. 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 Berryhill did not deny frequent talks with Weiss or that Weiss reported to him about union activity. We generally reverse an 

administrative law judge’s credibility findings only in “extraordinary 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 BloomingtonNormal Seating Co. v. NLRB, 357 F.3d 692, 695 (7th Cir. 2004) 

(citation and internal quotation marks omitted). Extraordinary 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 believe the dealership’s claimed reason for laying off Roberts: 

that he lagged behind other technicians in electronic diagnostic skills. Although Roberts was notified in a 2007 performance review that he needed to “continue developing electrical 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 dealership’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 election 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 contemporaneous unfair labor practices are relevant in establishing discharge 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 antiunion 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 Southwest Airlines, 201 NLRB 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 conclusion 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 “troublemaker.” But as explained above, there is also substantial evidence 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 dealership’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 employees, 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 actions 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 bargain dated back to the December 2008 election. Under the “atits-peril” doctrine, the dealership was liable for any bargaining 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 compelling economic considerations for doing so, an employer acts 

at its peril in making changes in terms and conditions of employment during the period that objections to an election are 

pending and the final determination has not yet been made.” 

Mike O'Connor Chevrolet, 209 NLRB 701, 703 (1974), enforcement 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 enforcement of the Act: an employer may not “box the union in on 

future bargaining positions by implementing changes of policy and practice during the period when objections or determinative 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 doctrine 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 enforcement 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 application. The dealership is correct that after New Process Steel, the 

Board voided its 2009 two-member decision affirming the bargaining unit determination and that the 2010 three-member 

Board order specified that the union was certified as of August 23, 2010. Contemporary Cars, Inc., 355 NLRB 592, 592 & n.4 

(2010). The employer’s challenge to the election thus remained 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 December 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 improper to open the disputed ballots based on the Board’s latervoided 2009 ruling. Whether the ballots were erroneously 

opened early should not affect the application of the at-itsperil 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 bargaining in the period between the election and the union’s eventual certification.

B. Compelling Economic Considerations?

The Board reasonably applied the law in concluding that 

the dealership’s situation in 2009 did not amount to compelling 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 justified 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 NLRB 844, 853 (1987) (holding that loss of major 

customer was not a compelling economic consideration because it was not unforeseen).5 A compelling economic consideration 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 NLRB 

1233, 1245 (1987). A “sudden and unexpected loss of business” 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 bargaining 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 bargaining. 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 National Maintenance Corp., 452 U.S. at 668–69, 687 (maintenance 

contractor’s decision to end its contract to provide maintenance staff to a third-party business was not mandatory subject of bargaining where the decision to end the contract was 

due to the size of management fee paid to maintenance contractor and third-party business was responsible for all labor 

costs).

Applying these principles, compelling economic considerations 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 considerations are present must be guided by whether the employment decision at issue is amenable to resolution though bargaining. See Van Dorn Plastic Machinery Co. v. NLRB, 736 F.2d 

343, 349 (6th Cir. 1984) (Board should analyze whether bargaining is required under First National Maintenance on remand 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 “amenable to resolution through the bargaining process,” First National 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 inevitable, 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 dealership’s controller testified that he discussed with general manager 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 until 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 severe, but any need for changes was apparent months in advance. 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 action” without taking the time to bargain. Angelica Healthcare 

Services, 284 NLRB 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 considerations standard. The judge had cited a case that used 

those terms interchangeably. See United Steel Service, Inc., 351 

NLRB 1361, 1369 (2007) (noting in the context of a post-certification 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 considerations” 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 NLRB 373, 374 (1991) (post-certification); Mike O'Connor Chevrolet, 209 NLRB at 703 (pre-certification). We are 

aware of no indication that those two terms denote substantively different standards. See Pleasantview Nursing Home, Inc.

v. NLRB, 351 F.3d 747, 755–56 (6th Cir. 2003) (citing pre-certification cases in discussing post-certification economic exigency); United Steel Service, Inc., 351 NLRB at 1369 (using the 

two terms interchangeably). 

Second, the dealership argues that the Board erred by 

treating unforeseeability as a necessary condition for compelling 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); Angelica Healthcare Services, 284 NLRB at 853 (stating that a compelling 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 collective 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 applied 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 remedy must be to restore the affected employees to the position 

they would have been in if their unlawful layoff had not happened. 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 technicians 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 supports 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 bargaining between the employer and union could not have produced any other outcome. Options other than layoffs were 

available, so Sundstrand does not apply.

D. The Suspension of Skill Level Reviews, the Unilateral Reduction in Pay for Pre-Paid Maintenance, and the Information 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, reduced the amount paid to technicians for pre-paid maintenance jobs, and refused to respond to a union information request. 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 supports, that the dealership violated its § 8(a)(5) bargaining obligation 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 erratic in the past, a team leader admitted that he told employees 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 affect 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 Materials, LLC v. NLRB, 645 F.3d 870, 880 (7th Cir. 2011) (establishing new employee evaluation system was mandatory subject 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 correction” 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 produced no net effect on wages. And, in fact, the number of 

hours per technician continued to go down during this period. This was, after all, a recession. The Board was fully entitled 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 failure 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 union with information “needed by the bargaining representative for the proper performance of its duties.” NLRB v. Acme 

Industrial Co., 385 U.S. 432, 435–36 (1967). The dealership’s refusal 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 separately to address the four layoffs that were unrelated to animus 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 bargain. 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 technicians were laid off to ensure that the remaining technicians

had enough jobs to be adequately employed.1 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 dwindling workload among fewer technicians. The court speculates 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 technicians’ 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 penalized for attempting to keep as many of the highly skilled 

technicians as fully employed as possible. Yet now, the dealership is ordered to reinstate Cazorla, Puzon, Poppo, and Persaud—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 handled 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 extended by the Board’s own quorum-related problems discussed 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 ordered back-pay remedies will require careful calculation.