Case Study:
[Caterair is a company that furnishes meals to the airline industry. On March 11, 1991, Teamster Local 572 filed charges with the NLRB alleging that management solicitation of signatures for a decertification petition and management coercion of signatures were in violation of Sections 8(a)(1) and (3) of the NLRA. The Board issued a multicount complaint alleging that management solicitation had impermissibly tainted the decertification petition, thus invalidating Caterair’s reliance, and that the resulting strike was motivated by Caterair’s unfair labor practices. Twenty-eight employees testified on behalf of the union before the ALJ, the majority of them relating either that managers had solicited their signatures or that they had witnessed managers talking to groups of employees and asking them to sign papers. Noneof the testifying employees had actually signed the petition. Four managers testified, denying that they had solicited employee signatures for the petition. At least one manager testified that he often carried around a clipboard and asked employees to sign work-related documents. The ALJ credited the employee-witnesses’ testimony and discredited the conflicting managers’ testimony, concluding that the managers had engaged in “widespread and conspicuous” solicitation of employees’ signatures in violation of Section 8(a)(1) of the National Labor Relations Act. The ALJ determined that Caterair had violated Section 8(a)(5) of the Act by relying upon the tainted decertification petition as the basis for withdrawing recognition of, and refusing to bargain with, the union. The ALJ also concluded that the strike was motivated by Caterair’s unfair labor practices, a conclusion Caterair does not now challenge. The ALJ ordered Caterair to cease and desist from interfering with its employees’ rights under Section 7 of the National Labor Relations Act to form, join, or assist labor organizations of their own choosing. The ALJ also ordered Caterair to reinstate strikers to their former jobs and to provide back pay from the date of the union’s unconditional offer to return to work, October 3, 1991. Finally, the ALJ ordered Caterair to recognize and bargain with the union upon its request as the collective bargaining representative of employees in the unit. The Board adopted these findings and Caterair appealed.] WALD, C. J.… In February 1991, Caterair employed roughly 750 unit employees and fifty-seven managers at the three facilities. Approximately 450 of those employees and thirty-nine managers worked at the largest of those three facilities (“Facility A”). Caterair employed about 275 unit employees and fourteen managers at the second facility (“Facility B”). The smallest facility employed only twenty-five unit employees and four managers (“Facility C”). As of February 1991, 403 unionized employees, or 54% of the unit, had authorized Caterair to deduct union dues and fees from their paychecks. In December 1990 and January 1991, three employees asked Caterair’s human resources director how to decertify the Union. The company prepared fliers responsive to their inquiries describing the process by which employees could request their fellow employees to sign a decertification petition expressing disaffection with the Union and requesting that the Board hold an election. These fliers stated that the petition had to be filed with the Board between sixty and ninety days prior to the expiration of the contract, a period that would run between March 2 and March 31, 1991. They also indicated that the petition had to be signed by at least 30% of the unit employees. One document explained that if more than 50% of employees signed the petition, Caterair could lawfully refuse to negotiate with the Union. The human resources director provided these informational sheets to the three inquiring employees and made them available to others upon request. On or around February 22, 1991, employee Xiomara Menendez and others prepared a decertification petition stating that signers “d[id] not want the Union” to represent them any longer. During a one-week period beginning February 22, Menendez and about eight other employees solicited signatures at Facility A. Employee Bonnie Metcalf and three other employees simultaneously sought signatures at Facility B. The evidence, as credited by the ALJ, suggests that on or around February 22, several managers at both facilities began actively to solicit employees’ signatures. Caterair’s transportation manager at Facility A, Jose Castillo, called employee Luz Davalos at her desk to inquire whether she had “signed the paper to get rid of the Union.” …When Davalos replied that she did not know what Castillo was referring to, Castillo said he would “send somebody else later to talk to” her. Thirty minutes later, employee Dolores Vasquez visited Davalos at her desk and asked her to “sign the paper to get rid of the Union” and told her “not to be a dummy.” Davalos refused to sign. Manager Castillo approached Davalos in the cafeteria two hours later, asking her whether someone had come by to talk to her already. She responded affirmatively and reiterated that she would not sign anything. Davalos told three other employees about her encounter with Manager Castillo…. During the same week, the production manager at Facility A, Alberto Pacheco, approached employee Rosa Rayas at her work area and inquired whether she had signed the petition “to get the Union out.” … When she said no, Manager Pacheco told her that if she did not sign, the Union would charge her “more than $200” in back dues.... He stated that the “Union was no good” because “the Union actually was a Mafia.”… Pacheco also told her that her signaturewas necessary because “they only needed a few more signatures to finish the amount of signatures that the Government requires to get the Union out.” … Rayas refused to sign. On February 21 or 22, employee Carlos Sosa saw the sanitation manager at Facility A, Saul Monroy, talking to employees while holding a sheet of paper. Shortly thereafter, Monroy approached Sosa and asked him to sign a petition containing about nine signatures so that employees could “obtain better salaries, cheaper health program, and more days’ vacation.” … Sosa was not able to get a good look at the petition, because Monroy had obscured the top of the page. Sosa refused to sign. Manager Monroy solicited employee Jose Vasquez sometime between February 22 and 24 at the entrance to the dishwashing department. Monroy carried a clipboard and asked vasquez to “sign the list.” … After Vasquez asked what the list was for, Monroy responded “that he was taking the signatures so that the Union will stay in.” … Vasquez testified that everyone at the company knew he was proUnion. He stated that he had been forewarned by fellow employees that this was merely a maneuver on Monroy’s part to get him to sign the decertification petition to oust the Union. Vasquez did not sign. On or around February 26, Manager Monroy brought a clipboard to employee Alfred Mercado at his work area in the dishwashing department and asked him to sign a piece of paper. Monroy refused to tell Mercado what the piece of paper was for, although Mercado assumed it was the decertification petition that he had heard talk of around the workplace…. Mercado refused to sign. Manager Monroy approached employee Victor Saldana in late February in the dishroom. He showed Saldana a clipboard on which he was collecting signatures, but obscured the actual petition under a white sheet of paper. Monroy asked Saldana if he would “sign to be able to get the Union out.” … Monroy told Saldana that signing would be “good” for him, and asked him “Why do you have to pay $15 per month and when they fire you, you’re not going to get any help?” … Saldana refused to sign and testified that he later told six or seven employees about the exchange. On February 26, the assistant manager at Facility B, Oscar Peralta, spoke with employee Israel Lopez in the cafeteria in the presence of employee Teresa Reveco and six or seven others. Peralta handed Lopez “a petition to get the Union out” and asked him to sign it. Tr. of February 4, 1992 Hearing (Testimony of Israel Lopez), at 108. Lopez observed a paper that was approximately three-fourths full of signatures. Explaining to Peralta that he was a Union Shop Steward, Lopez refused to sign. Lopez later witnessed Peralta soliciting the signature of employee Hector Hernandez. See id. at 112. Lopez heard Hernandez refuse to sign. Lopez told as many as twenty employees about his exchange with Manager Peralta. Although Caterair vigorously disputes the conclusions of the ALJ drawn from such evidence, contending that the evidence does not sustain the ALJ’s inference that managers solicited any actual signatures on the petition, the ALJ also credited the testimony of several employees that they saw managers talking to groups of employees and handing them sheets of paper to sign during this period.... By March 4, 1991, the decertification petition contained 428 employee signatures, representing 57% of the bargaining unit. Several employees filed the petition with the Board on that day so as to begin the process of official decertification. In a March 15 letter, the Union asked Caterair to bargain for a new contract. Caterair responded by letter of March 20 that it had a “good faith doubt” about the Union’s majority status, citing the decertification petition supported by a majority of employees. Caterair refused to begin negotiations with the Union on a new contract. After several employees discussed the possibility of striking over Caterair’s refusal to bargain, the general manager of Facility A, Jose Ramirez, called employee Daniel Godoy into his office in early April. Ramirez told Godoy that he knew Godoy had been “agitating” among the employees in an effort to initiate a strike. Ramirez told Godoy that his actions were illegal and that he could be fired.… On May 22, the Union held an employee meeting at which the employees voted by written ballot to go on strike in response to Caterair’s refusal to negotiate. The margin in favor of a strike was 318 to 6, that is, 42% of the total unit voted in favor of striking. According to further testimony credited by the ALJ, management attempts to dissuade strikers continued. In late May, human resources director Millie Bisono told employee Jerry Hayes that he would be fired if he joined the strike…. On May 31, labor relations director Roberto Velazquez had a conversation with employee Fulgencio Plascencia in which Velazquez stated that Caterair “did not want the Unionand that all striking employees would be “automatically fired.” … Velazquez told employee Castulo Flores the same thing the next day…. The strike began on June 3, 1991, and involved 289 striking employees, or 39% of the unit. Sixtyone of the striking employees had previously signed the decertification petition. Caterair began hiring permanent replacements for the strikers almost immediately. Caterair unilaterally granted a wage increase of 4–6% to employees on August 31, 1991, during the pendency of the strike. The Union ended the strike in early October and made an unconditional offer by letter of October 3, 1991, to have the strikers return to work. The letter called the strike an unfair labor practice strike and asked the company to dismiss replacement employees and reinstate the striking workforce. Caterair refused to reinstate any of the strikers and denied that the strike had been motivated by Caterair’s unfair labor practices. [The Court of Appeals held that the evidence warranted a finding that the employer’s managementexercised a pervasive influence in procuring employee signatures for the “union decertification petition.” The court enforced the Board’s order, in part, to the extent that it required Caterair to cease and desist from committing unfair labor practices. Under the cease-and-desist order Caterair is required to bargain with the Union. Company employees remain free under the cease-and-desist order to petition for decertification.]
Q1. Was it proper for the director of human resources to prepare fliers responsive to employee inquiries as to how to decertify the union?
Q2. Evaluate the effects of the adverse decisions of the NLRB and the court of appeals on Caterair.
Q3. Advise the human resources director what she should have done after preparing the flier on how to decertify the union.
Your answer must be, typed, double-spaced, Times New Roman font (size 12), one-inch margins on all sides, APA format and also include references.