Assignment:
Judge Ripple This petition asks us to review whether Multi-Ad Services, Incorporated ("Multi-Ad") violated the National Labor Relations Act ("Act") by interfering with its employees' efforts to form a union. The National Labor Relations Board ("Board") concluded that Multi-Ad violated the Act.
BACKGROUND
Multi-Ad employs 450 workers at its full-service advertising art production facility in Peoria, Illinois. Multi-Ad hired Steele in 1989 to work in the bindery department. Fifteen employees work in the department, which manufactures loose-leaf, three-ring binders. The bindery department is a small operation, accounting for a limited percentage of the company's sales and profits. Steele's performance evaluations were above average throughout his tenure at the company.
On July 29, 1996, Multi-Ad held a quarterly meeting for employees of the bindery, press, and finishing departments. After discussing the company's financial performance, plant production manager Jerry Ireland announced the company's plan to implement a new drug-testing policy. Following this announcement, Steele spoke up and openly criticized the policy, contending in a loud and persistent manner that such testing violated employees' right to privacy. Other employees also voiced their displeasure with the policy. Steele and Larry Clore , Multi-Ad's president, then began to argue about the policy's legality. At the end of this exchange, Steele requested a copy of Multi-Ad's laws and bylaws. Clore told Steele that he could have these materials after the meeting. Later that day, the quarterly meeting split into separate departmental meetings.
The bindery department meeting commenced around 3:00 p.m., the normal quitting time for day-shift employees. At this meeting, Clore gave Steele a summary plan description of Multi-Ad's corporate structure. After Steele pointed out that he wanted the complete bylaws and not a summary, Clore responded, "Have your lawyer get them." Clore then told Steele that if he did not like the company's drug policy, "Why don't you think about leaving the company?" Steele responded that he would not give Clore the pleasure of quitting. After Clore departed, Ireland tried to continue with the meeting, but Steele announced that he was leaving because "he was on his own time now." Steele testified that Ireland said, "Okay." Ireland, however, testified that Steele's remark had shocked him and that he had said nothing in response. Ireland also testified that he had apologized to the group for Steele's behavior.
Steele, however, was not ordered to remain for the rest of the meeting, which ended shortly after his exit. Two days later, Steele and Ireland met at Steele's request. Steele apologized for his conduct at the department meeting and then told Ireland that hourly shop workers were dissatisfied with company policies. Steele told Ireland that "management needed to just sit down with the hourly employees and work some things out." Ireland replied, "That could not be done." Steele then told Ireland that, if they could not sit down and discuss these problems, he would organize a union. Ireland asked Steele to wait until Ireland returned from his vacation to discuss the issue further. Steele agreed and made no effort to contact a union while Ireland was away. On August 16, 1996, Steele met with Ireland and bindery department manager Marty Heathcoat in Heathcoat's office. During this meeting, the two managers asked Steele why he would want to bring a union into the company.
Steele told them that it would be nice to have seniority rights, better working conditions, and raises when possible. Ireland then asked what Steele could do to improve Steele's own situation at the company and pointed out that Multi-Ad posted job openings. After Steele expressed interest in a maintenance position, Ireland told him that he would set up an interview, even though the company did not have an opening for a maintenance position. At the end of the meeting, Ireland asked Steele "what it would take to satisfy him." Steele replied that it would satisfy him if management "would sit down with the hourly employees and work something out." After Ireland responded that he could not do that, Steele informed the two managers that he was leaving the meeting and was going to attempt to organize a union. Ireland asked Steele to come back and talk some more, but Steele responded that there was nothing left to talk about. Steele left at 3:30 p.m., 30 minutes after his shift had ended.
No one told Steele to stay, nor was he reprimanded for having left the meeting. The next day, Steele interviewed for a maintenance position, but the interview revealed that he lacked the necessary qualifications. In any event, Steele said that he did not want the job. Steele twice met with union officials in late August. During this time, employees began to talk about Steele's efforts at organizing a union. At a meeting of bindery department employees in late August, Heathcoat addressed rumors about a union and asked employees why they wanted a union. In response, Steele stated that everyone knew that Heathcoat was violates Sections 8(a)(1) or (3) of the Act by firing employees because of their union activities. To prove a violation, the Board must prove that antiunion animus was a substantial or motivating factor in the employer's decision to make the adverse employment decision.
If the Board proves such a motivation by a preponderance of the evidence, the employer can avoid a finding of an unfair labor practice by showing that it would have taken the action regardless of the employee's union activities. [S] ubstantial evidence supports a finding that the company harbored animus, including (1) the timing of Steele's firing, which coincided with his increased efforts to organize a union; (2) the coercive interrogation of Steele regarding his interest in forming a union; (3) management's questioning of other employees about their interest in forming a union; and (4) DeRossett's warning that the bindery department would close if employees unionized.
Thus, the Board met its burden of establishing antiunion animus. Multi-Ad claims as an affirmative defense that it fired Steele for leaving three meetings without permission. The Board concluded, however, that Multi-Ad's proffered reason was pretextual and that the company fired Steele because of his efforts to unionize. That conclusion is supported by substantial evidence, including (1) Multi-Ad's written explanation of termination stating a different reason-that he was discharged because he refused to abide by corporate policies; (2) the September 4 encounter was not a "meeting"-Steele entered the office to pick up materials to which he was legally entitled and twice denied access; and (3) no manager instructed Steele to remain at the previous two meetings, both of which occurred after shift hours. . . . Order enforced.
Questions
1. a. List the four unfair labor practices identified by the court.
b. What test did the court employ in determining whether the employer coercively interrogated Steele?
c. What evidence supported the court's conclusion that Steele's firing was motivated by antiunion animus?
d. Why did the court conclude that the employer's stated reason for dismissing Steele was pretextual?
2. Jose Ybarra was a labor consultant for Met West. A union election was pending at the company. An employee allegedly told Ybarra that his promised raise had not been delivered. Ybarra later allegedly told the employee that management had decided that wages could not be adjusted with an election pending. The union lost the election and filed suit claiming that Ybarra's statement was an unfair labor practice. Decide. Explain. See Met West Agribusiness, Inc., 334 NLRB No. 14 (May 23, 2001).
3. During an election campaign, the general manager's office was used to interview employees in small groups of five or six. The employees had previously visited that office to discuss grievances and obtain loans. That office was the only space available for the conversations. The general manager's remarks were temperate and noncoercive. The union lost the election. Should that result be set aside for unlawful campaigning? Explain. See NVF Company, Hartwell Division, 210 NLRB 663 (1974).