The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3054
INTERNATIONAL UNION OF OPERATING ENGINEERS,
LOCAL 150, AFL-CIO,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent,
and
TERRACON, INCORPORATED,
Intervenor-Respondent.
____________
Petition for Review of an Order of the
National Labor Relations Board.
Nos. 13-CA-39279, 13-CA-39271, 13-CA-39181
____________
ARGUED FEBRUARY 13, 2004—DECIDED MARCH 16, 2004
____________
Before FLAUM, Chief Judge, and MANION and DIANE P.
WOOD, Circuit Judges.
FLAUM, Chief Judge. As a result of two meetings with the
management of Terracon, Incorporated (“Terracon”), the
International Union of Operating Engineers, Local 150,
2 No. 03-3054
AFL-CIO (“the Union”) concluded that it had been vol-
untarily recognized as the bargaining representative for
Terracon’s drillers and drill helpers. However, the National
Labor Relations Board (“NLRB”) disagreed and held that
Terracon never voluntarily recognized the Union. The
NLRB therefore dismissed the Union’s claims that Terracon
violated Section 8 of the National Labor Relations Act
(“NLRA”) by withdrawing voluntary recognition and
refusing to bargain with the Union. The Union now peti-
tions for review of the NLRB’s order. Deferring to the
considered judgment of the NLRB, we affirm.
I. BACKGROUND
Terracon is a national engineering consulting firm which
engages in soil testing. Its Naperville, Illinois facility em-
ploys nine drillers and drill helpers who run drill rigs to
take soil samples. In January 2001, the drillers and drill
helpers began unionization efforts by meeting with organiz-
ers from the Union and collecting union authorization
cards. On February 19, 2001, seven drillers and drill help-
ers arrived at work wearing hats and buttons displaying the
Union’s insignia. The employees were accompanied by
Stanley Simrayh, a union organizer, and Ken Edwards, a
union attorney.
Upon arriving at Terracon, Simrayh and Edwards ap-
proached Terracon’s office manager, Maroun Moussallem.1
Simrayh introduced himself and Edwards as union organiz-
ers, and stated that they were there to seek voluntary
recognition of the Union. Moussallem informed Simrayh
and Edwards that he did not want to discuss this issue
1
Terracon’s brief adopts many spellings of “Moussallem.” We will
employ the first spelling used in Terracon’s brief throughout our
opinion.
No. 03-3054 3
in front of the employees, and asked if they would come into
his office. Simrayh and Edwards agreed, and the three men
walked into Moussallem’s office.
Once in Moussallem’s office, Simrayh stated that the
Union represented a majority of the drillers and drill help-
ers, and gave Moussallem copies of signed authorization
cards from all of the drillers and drill helpers. Moussallem
reviewed the cards and set them on his desk. Simrayh
commented that he had authorization cards from all of the
drillers and helpers, and Moussallem agreed that this was
true. At this point, Simrayh gave Moussallem a letter
addressed to Keven Jefferis (Terracon’s regional manager)
demanding recognition and a Voluntary Recognition
Agreement. However, Moussallem did not sign the
Voluntary Recognition Agreement.
Simrayh then asked Moussallem if he could talk about
the employees’ wages, hours, and conditions of employment.
Moussallem did not object, and Simrayh informed him that
the employees wanted better winter clothing and shoes.
Moussallem replied that neither of these issues was a
problem. Simrayh then told Moussallem that the employees
had safety concerns and wanted more time to inspect
equipment and more HazMat training. Moussallem re-
sponded that this was “a good idea” and “a good way to go.”
Moussallem then asked if the Union represented any pro-
fessional engineers. Simrayh informed him that the Union
had competitive contracts at two other companies.
Moussallem replied “we’ll see about that.” Simrayh asked
if another meeting could be arranged, and Moussallem said
the men should return later in the morning to speak with
Keven Jefferis, Terracon’s regional manager.
Later that day, Simrayh and Edwards returned to
Terracon and asked to speak with Keven Jefferis. Jefferis
allowed the men into his office, and they stated that they
were there to seek voluntary recognition for the drillers and
4 No. 03-3054
drill helpers. They then gave Jefferis the same union
authorization cards, letter of recognition, and Voluntary
Recognition Agreement that they had shown Moussallem
earlier that day. Jefferis reviewed the authorization cards,
and when asked if they were signed authorization cards
for all of the drillers and drill helpers, Jefferis agreed that
they were. However, Jefferis did not sign the Voluntary
Recognition Agreement.
Simrayh subsequently informed Jefferis that the men
were interested in better winter clothing, more time to
inspect the equipment, and additional HazMat training.
Jefferis responded that these issues were just “peanuts.”
Jefferis then proceeded to ask the Union’s organizers a
series of questions about what the Union could do for
Terracon. First, Jefferis asked what kind of training the
Union provided for its members. Simrayh stated that the
Union had an apprenticeship program for drillers. Next,
Jefferis asked what kind of money the Union sought for the
employees. Simrayh responded that the Union would be
happy to negotiate a fair wage, and Jefferis informed him
that Terracon would not be able to pay union wages and
would subcontract the drilling work if they were forced to
pay union wages. Finally, Jefferis asked about the Union’s
insurance program and requested a copy of its benefit plan.
The meeting between Jefferis and the Union’s organizers
lasted approximately an hour. At the conclusion of the
meeting, Simrayh inquired whether the parties would meet
again, and Jefferis stated that he would get back to them.
As soon as Simrayh and Edwards left, Jefferis called
Terracon’s CEO, who advised that Jefferis hire a labor at-
torney. The next day, Simrayh sent Jefferis a letter stating
that he believed the parties had begun bargaining and that
Terracon had agreed to provide its employees with better
winter clothing and HazMat training. In response,
Terracon’s new attorney drafted a letter stating that the
Union’s visit was a “courtesy call” and that no negotiations
or bargaining had begun.
No. 03-3054 5
On February 21, 2001, Terracon filed a petition with the
NLRB requesting an employee election regarding unioniza-
tion. The Union subsequently filed an unfair labor practice
charge against Terracon, alleging that Terracon had vio-
lated Section 8 of the National Labor Relations Act
(“NLRA”) by unlawfully withdrawing recognition from the
Union. When Terracon later unilaterally changed the
starting times for its employees, the Union filed another
charge against Terracon for failing to bargain with the
Union. Although the Administrative Law Judge found in
favor of the Union, the NLRB reversed and found that
Terracon had not voluntarily recognized the Union and
therefore did not violate the NLRA by withdrawing rec-
ognition from the Union or refusing to bargain with the
Union.
II. DISCUSSION
A union becomes the exclusive bargaining representative
for a group of employees either by prevailing in a secret
ballot election conducted by the NLRB or by convincing the
employer to voluntarily recognize it as the employees’
representative. See Lincoln Park Zoological Soc’y v. NLRB,
116 F.3d 216, 219 (7th Cir. 1997). Voluntary recognition can
be either explicit or implicit. Explicit voluntary recognition
occurs when an employer expressly assents to a union’s
representation. See Jefferson Smurfit Corp., 331 N.L.R.B.
809, 809 (2000). Implicit voluntary recognition occurs when
an employer’s statements or conduct clearly and unequivo-
cally demonstrate that it has made a commitment to enter
into negotiations with a union. See Nantucket Fish Co., 309
N.L.R.B. 794, 795 (1992). In this case, the Union argues
that the NLRB erred in concluding that Terracon did not
voluntarily recognize the Union, and asserts that the Union
was implicitly recognized as the employees’ bargaining
representative on February 19, 2001.
6 No. 03-3054
The scope of judicial review accorded to an NLRB order is
appropriately narrow. See NLRB v. Lyon & Ryan Ford, Inc.,
647 F.2d 745, 750 (7th Cir. 1981). We will uphold the
NLRB’s decision as long as its factual findings are sup-
ported by substantial evidence and its conclusions have a
reasonable basis in the law. See Dilling Mech. Contractors,
Inc. v. NLRB, 107 F.3d 521, 523-24 (7th Cir. 1997). More-
over, we will not displace the NLRB’s choice between two
fairly conflicting views, even if we “would justifiably have
made a different choice had the matter been before [us] de
novo.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488
(1951).
Whether an employer voluntarily recognized a union is a
question of fact, and is therefore reviewed for substantial
evidence on the record as a whole. See NLRB v. Lyon &
Ryan Ford, Inc., 647 F.2d 745, 750 (7th Cir. 1981). The
Union argues that the NLRB’s decision is not supported
by substantial evidence because the evidence in this case
showed that: (1) when Terracon reviewed the Union
authorization cards, it stated “you got them all”; (2)
Terracon engaged in actual bargaining with the Union; and
(3) Terracon made a commitment to enter into future
negotiations with the Union. We will address each of these
arguments in turn.
1. Union Authorization Cards
The Union first asserts that an employer implicitly rec-
ognizes a union when it conducts a check of the union
authorization cards and states “you got them all.” In
support of its argument, the Union cites Jerr-Dan Corp.,
237 N.L.R.B. 302 (1978) and Brown & Connolly, Inc., 237
N.L.R.B. 271 (1978). However, neither of these cases hold
that simply reviewing union authorization cards and then
stating that the Union has collected them from all of the
potential bargaining unit employees qualifies as implicit
recognition.
No. 03-3054 7
Rather, in Jerr-Dan Corp., 237 N.L.R.B. 302, 302 (1978),
the employer reviewed the union authorization cards,
agreed that all of the relevant cards were present, and then
“agreed to meet again 4 days later . . . for the express
purpose of engaging in collective-bargaining negotiations.”
In holding that the Union had been implicitly recognized,
the NLRB based its finding on the employer’s “commitment
to enter negotiations with the Union, which is an implicit
recognition of the Union’s majority.” Id. at 303. The NLRB
never mentioned that agreeing the authorization cards were
signed could also qualify as implicit recognition of a union.
Similarly, in Brown & Connolly, Inc., 237 N.L.R.B. 271,
274-75 (1978) the employer not only acknowledged that
a majority of its employees supported the Union, but
also “stated that [it] recognized the union” and “agreed to a
date for a further meeting at which negotiations would
begin.” Emphasizing that “[t]he arrangement of the meeting
to begin negotiations leaves no doubt that [the employer],
as well as the Union, understood that [it] had accepted the
representative status of the Union and was prepared to
engage in collective-bargaining negotiations with it,” the
NLRB held that the Union had been implicitly recognized.
Id. at 275. Absent from the NLRB’s discussion was any
reliance on the fact that the employer had also stated that
its employees appeared to be in favor of the Union.
In contrast, the NLRB has consistently held that merely
reviewing authorization cards does not count as implicit
recognition. See Jefferson Smurfit Corp., 331 N.L.R.B. 809,
809 (2000). Employers have the “right to a Board election to
resolve the issue of majority status,” and they waive that
right only if they enter into “a clear agreement” to do so. Id.
at 809. The Union has presented no evidence that
Terracon’s statement “you got them all” constituted a clear
agreement to waive the right to an election. Therefore, the
Union’s arguments on this point must fail.
8 No. 03-3054
2. Bargaining
The Union also contends that Terracon implicitly recog-
nized the Union when the parties engaged in bargaining on
February 19, 2001. Bargaining with a union is, of course,
one of the ways an employer can implicitly recognize a
union. See Lyon & Ryan Ford, 246 N.L.R.B. 1, 4 (1979).
However, the NLRB concluded that no bargaining took
place in this case because the discussions between the
Union and Terracon did not have the give-and-take char-
acteristic of negotiation. The Union disagrees, and cites
Terracon’s questions regarding union benefits and the dis-
cussion with Terracon about insurance costs as evidence of
negotiation.
In concluding that Terracon’s questions and the insurance
discussion did not amount to bargaining, the NLRB relied
upon Ednor Home Care, 276 N.L.R.B. 392 (1985). In Ednor
Home Care, the employer met with a union representative
for approximately forty-five minutes, during which time he
reviewed the Union’s authorization cards, “asked a number
of questions regarding the probable nature and extent of
the union demands and requested that [the Union] furnish
a blank form of the union contract.” Id. at 393. At one point,
the employer even asked if the Union would accept fewer
paid holidays than it had asked for, and the Union replied
that the subject could be negotiated. Although the employer
and Union discussed medical plans, pension plans, paid
holidays, and vacation time, the NLRB held that no volun-
tary recognition had taken place because the parties merely
“touched on” these issues and did not engage in “serious
give-and-take negotiation.” Id. Rather, the employer was
speaking to the Union “in order to obtain as much informa-
tion as possible” so that it could determine what its employ-
ees were “looking for (and willing to accept) as compared
with their expectations of what the Union could obtain for
them through collective bargaining.” Id. at 394.
No. 03-3054 9
Just as in Ednor Home Care, Terracon merely touched
upon issues of import in its discussions with the Union.
Terracon’s responses to the Union’s proposals did not in-
clude serious give-and-take; instead, Terracon said these
issues were “peanuts,” “not a problem,” and “a good way to
go.” Significantly, there were no compromises made and the
parties’ positions did not change. Moreover, Terracon’s
questions about what the Union would do for Terracon can
reasonably be interpreted as Terracon’s attempt to educate
itself about the Union and the employees’ interests. None of
this amounts to clear and unequivocal evidence that
Terracon was recognizing the Union as its employees’
bargaining representative. See Nantucket Fish, 309
N.L.R.B. 794, 795 (1992).
This is in contrast to the clear and unequivocal evidence
of voluntary recognition in Lyon & Ryan Ford, 246 N.L.R.B.
1 (1979). In Lyon & Ryan Ford, after looking through the
union authorization cards, the employer and Union dis-
cussed details in the Union’s proposed contract and the
employer added up figures on his adding machine to
determine how far apart the parties were on expected wages
and benefits. See id. at 2. Four days later, the employer
again met with the Union and the parties again discussed
the proposed contract and began classifying each employee
within the bargaining unit. By the end of the meeting, the
parties had created two classifications of employees and had
agreed to the categorization of all but two remaining
employees. After the meeting concluded, the employer
allowed the union representative go into the shop and talk
to the employees. See id.
Despite the Union’s arguments to the contrary, Lyon
& Ryan Ford is clearly distinguishable from this case.
In this case, there was no proposed contract discussed by
the parties and the parties did not work together to deter-
mine how to categorize specific employees. The absence of
10 No. 03-3054
any compromise or teamwork is significant, and thus the
Union’s reliance on Lyon & Ryan Ford is misplaced.
We therefore conclude that the NLRB’s determination
that no bargaining took place was supported by substantial
evidence. Furthermore, we note that the NLRB’s decision is
consistent with national labor policy, which favors the
voluntary recognition of a majority union. See NLRB
v. Lyon & Ryan Ford, Inc., 647 F.2d 745, 750 (7th Cir.
1981). Were the NLRB to adopt a definition of “bargaining”
that included simple discussions or informational queries
between unions and employers, employers might refrain
from meeting with union representatives at all for fear of
saying too much and inadvertently recognizing the union.
This would inevitably lead to a decline in unionization,
subverting the objectives of the NLRA.
3. Commitment to Bargain
Finally, the Union argues that even if Terracon did not
bargain on February 19, 2001, it did make a commitment to
bargain with the Union. According to the Union, Terracon
committed itself to negotiate with the Union when: (1)
Moussallem told the Union that they should return to speak
with Jefferis; and (2) Jefferis told the Union at the end of
their meeting that he would be in touch with them.
We conclude that neither of these statements establish
Terracon’s clear and unequivocal agreement to bargain with
the Union. When statements are “susceptible to different,
reasonable, but irreconcilable interpretations,” the em-
ployer has not clearly and unequivocally agreed to bargain
with a union. See Nantucket Fish, 309 N.L.R.B. at 795. An
analysis of the statements at issue in this case reveals that
both are ambiguous at best.
First, Moussallem’s statement that the Union should
come back “when Mr. Jefferis would be available” is easily
No. 03-3054 11
susceptible to differing interpretations. Although the Union
argues that the statement should be interpreted as an
invitation to return so that Jefferis could negotiate with the
Union, an equally reasonable interpretation is that after
being given a letter addressed to Jefferis demanding
recognition for the Union, Moussallem believed that it was
Jefferis who needed to decide the issue. The Union’s
behavior after meeting with Moussallem lends even more
strength to the latter explanation, as the Union proceeded
again to demand recognition and tendered the authorization
cards and Voluntary Recognition Agreement upon first
meeting Jefferis. These actions would not have been
necessary had the Union already been recognized by
Moussallem.
Second, Jefferis’ statement that he “would be in touch”
did not clearly show intent to enter into negotiations with
the Union. An equally logical account of Jefferis’ statement
was that he would consider the Union’s request for recogni-
tion and inform them later of his decision. See Ednor Home
Care, 276 N.L.R.B. at 393 (holding that employer’s state-
ment that the Union should “get back to him” was too
ambiguous to support a finding of commitment to enter into
negotiations with the Union).
Because Terracon’s statements to the Union are subject
to more than one interpretation, they do not constitute “an
unequivocal agreement to recognize and bargain with the
Union.” See Nantucket Fish, 309 N.L.R.B. at 795. The
NLRB’s finding that Terracon did not recognize the Union
is therefore reasonable and supported by substantial evi-
dence.
III. CONCLUSION
The NLRB’s finding that Terracon never granted volun-
tary recognition to the Union is supported by substantial
evidence. Thus, Terracon did not violate the NLRA by
12 No. 03-3054
withdrawing recognition from the Union or by failing to
bargain with the Union. For the foregoing reasons, we
AFFIRM the NLRB’s order.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-16-04