1. Was it proper for the director of human resources to prepare fliers responsive to employee inquiries as to how to decertify the union?
2. Evaluate the effects of the adverse decisions of the NLRB and the court of appeals on Caterair.

3. Advise the human resources director what she should have done after preparing the flier on how to decertify the union.

[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. None of 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….