[SOLVED] Contemporary Cars, Inc. v. National Labor Relations

Contemporary Cars, Inc. v. National Labor Relations Board
United States Court of Appeals, Seventh Circuit, 814 F.3d 859 (2016)
In the Language of the Court
HAMILTON, Circuit Judge.
Contemporary Cars, Inc., sells and services cars in Maitland, Florida. Bob Berryhill, the dealership’s general manager, is responsible for the dealership’s overall operations. AutoNation owns the dealership, as well as over 200 other dealerships throughout the United States. This case focuses on the dealership’s service department [which the dealership had previously split into three teams]. The International Association of Machinists began a campaign to organize the service technicians. The technicians talked among themselves and held off-site meetings. The union filed its representation petition. The [National Labor Relations Board] approved the proposed bargaining unit, and an election was scheduled.
In the weeks before the election, Berryhill and AutoNation vice president Brian Davis held group [and individual] meetings [with the technicians]. One week before the election, Berryhill announced that the dealership was working on fixing problems the technicians had and that he was replacing two team leaders, [Andre] Grobler and Oudit Manbahal, with new team leaders. Technician Anthony Roberts was then playing a leading role in the union organizing. 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 technicians voted in favor of unionizing. After the election, the dealership challenged the certification of the union as the exclusive representative of a bargaining unit consisting of service technicians. The [National Labor Relations] Board affirmed the certification. The Board filed a complaint alleging that the dealership and AutoNation had violated the National Labor Relations Act. An administrative law judge found 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 [and] by firing Anthony Roberts due to anti-union animus [hostility]. [The judge ordered the dealership to cease its interference with its employees’ rights and to reinstate Roberts. The judge also ordered AutoNation to post a notice at all of its dealerships that it was rescinding the no-solicitation rule.]
The Board affirmed the order. The dealership and AutoNation petitioned [the U.S. Court of Appeals for Seventh Circuit] for judicial review. [The NLRB cross-petitioned for enforcement of the order.] 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 dealership violated [the Act] 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. [Team Leader] Grobler created a coercive impression of surveillance when he commented on technician Juan Cazorla’s attendance of union meetings. Grobler asked [Cazorla] why he was in such a rush to leave work, 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 [on a different occasion] Grobler commented to Cazorla that he had “better rush” since he had a meeting. It would have been reasonable for Cazorla to infer from Grobler’s comments that his union activities were under management surveillance. Berryhill coercively interrogated employees [when he] called them individually into his office and asked them about union activity. The dealership’s service director was also present. 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. At the meetings, Berryhill asked the technicians how the dealership could improve. Berryhill [stated] that he was “working on” the problems and “in progress” on the solutions. The meetings also included inquiries about the union effort. This was an effort to frustrate the union organizing drive by soliciting and at least implicitly promising to adjust grievances. AutoNation vice president Davis coercively interrogated a technician, Tumeshwar Persaud. Davis asked him how he felt about the union election. 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. Davis held a 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 meetings that management held in the run-up to the union election. Davis was implicitly promising to remedy grievances with the goal of frustrating the union effort. AutoNation promulgated [publicized] an overly broad no-solicitation policy in the employee handbook used at all of its facilities. AutoNation’s policy prohibited any solicitation on AutoNation property at any time. The policy amounted to an unfair labor practice because of the likelihood it would chill protected concerted activity. [Emphasis added.]
The dealership’s discharge of Anthony Roberts a week before the election was motivated by anti-union animus. 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 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 antiunion animus. Roberts was more productive and had a higher skill rating than many technicians who were retained. 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.

Legal Reasoning Questions
1. What might the dealership have asserted in defense to the charge that its actions violated its employees’ rights?
2. After the election but before the union was certified, the dealership laid off four technicians and cut others’ pay without bargaining with the union, claiming economic hard times. Did these steps constitute an unfair labor practice? Discuss.
3. What could the employer have done to avoid the charge in this case?

Question: Contemporary Cars, Inc. v. National Labor Relations