Unfair Labor Practices

The employer owned and managed an apartment building and townhouse complex, where it employed a number of janitorial workers. On December 5, 1975, the union held an organizing meeting with these workers and obtained signed authorization cards from 6 of the employees in a proposed unit of 11 employees. One other employee in the unit was already a member of the union. On December 8, 1975, Orval Schimmel,* a union organizer, advised Thomas Hall, the employer's property manager, that the union represented recognition and bargaining rights. Hall responded that he had nothing to do with union matters and that the appropriate person with whom to speak was the vice president, Carl Alton.

On December 8, 1975, after the union had first requested recognition, a maintenance supervisor, Larry Melton, telephoned an employee, George Thompson, at his home and asked if any union people had contacted him. Thompson replied that none had. The next morning Melton entered the maintenance office, where the janitorial employees reported for work, and asked another employee, Alice Coleman, "What has the union done to you?" Coleman did not reply. Melton then entered his own office and called in a third employee, Theo Ewing. Melto told Ewing that he knew that the employees had brought in an organizer and wanted to organize a meeting and whether he knew who sent for the organizer. When Ewing denied attending the meeting and any knowledge about who sent for the organizer, Melton repeated the questions and told Ewing not to sign anything or talk to any organizer and to keep him informed of any such activities. On the evening of December 9, 1975, Melton again telephoned George Thompson and asked whether he had spoken to any union people. Thompson admitted that he had but refused to offer any further information. Melton continued to question about why he was doing this and who attended the meeting. After several unsuccessful attempts to elicit additional information, Melton said to Thompson, "You are either on my side of the fence or your side of the fence...You always had it good. I have given you...you got a nice job, you got an apartment...This is you last chance." Thompson refused to answer.

That same evening, December 9, Melton telephoned Gloria Greer, another employee, and asked why she had not told him about the union meeting. Greer denied knowledge of the meeting. Melton then telephoned Ewing and asked who brought in the organizer. He repeatedly attempted to elicit this information, but Ewing said he did not know. Melton ended the conversation by telling Ewing to keep his ears and eyes open and to let him know if he heard anything. He also told him not to sign anything.

On December 24, 1975, Lary Melton was terminated by the company, and he was replaced by Leo Nord. At about this same time, the company announced that it was improving its sickness and helath benefits program for employees, including a new benefit to cover maternity medical expenses for employees and their spouses.

On January 30, 1976, the morning of the representational election, Leo Nord told Cecil Snow that if the union won the election, the employer would take the rent-free apartments away from the janitors' helpers and charge the head janitors for second bedroom in their apartments.

On January 30, 1976, the union lost the representation election 6 to 4. The union filed numerous charges of unfair labor practices, claiming that these violation had dissipated the union's majority status as established by the authorization cards. These violations, in the union's view, were so serious and widespread that they made a fair rerun election unlikely. The union requested that the company be ordered to recognize the union and bargain with the union on the basis of the prounion majority previously established by the signed authorization cards, which it had secured in early December 1975.

Position of the Union:

The union filed charges of unfair labor practices against the company, claiming that the company had violated Section 8(a) (1) of the LMRA by:

a. Repeatedly interrogating employees concerning their union activities.
b. Threatening employees with deprivation of benefits if the union should be elected to represent them.
c. Threatening an employee for refusing to reveal the identities of employees who attended a union meeting.
d. Informing an employee that it knew (or heard) the employee had joined the union.
e. Promising to pay and paying employees for certain medical benefits to discourage them from supporting the union.

The union urged that the company should be found in violation of the act accordingly and ordered to cease and desist from these practices. Further, because the company's violations were so severe and pervasive, a valid union majority status had been dissipated, and it would be impossible to have a fair rerun election in the climate created by the company's actions. The union requested the company should be ordered by the NLRB to recognize the union's majority status as of December 8, 1975, and to bargain with the union as the authorized representative of a bragaining unit of janitorial employees.

Position of the company:

The company presented a number contentions in urging that the union's charges be dismissed.
First of all, company management claimed that it was unaware of the telephone calls and other questioning employees conducted by its former supervisor Larry Melton. Regardless, most of Melton's statements and questions to employees were not coercive, but they were legitimate inquires necessary to determine whether the union had the majority status that it claimed. Melton never specifically threatened the employee George Thompson on December 9; his statement to Thompson was very vague and inconclusive.

Concerning the granting of improved sickness and healthe benefits in late December 1975, the company contended that the improved benefits were part of the company's annual review of its benefit program. The company announced the change in benefits to coincide with the Christmas season, and this had nothing to do with the union's representational campaign.

The company pointed out that Larry Melton was terminated by the company on December 24, 1975, and the election was not held until January 30, 1976. Thus Melton's influence on the election, if any, had "totally evaporated" and was no longer a factor. The statement of the new supervisor, Leo Nord, to the employee Cecil Snow on that day did not constitute a threat, but was a legitmate prediction and Nord's own personal opinion concerning what unionization logically would bring to the company. This was "free speech" protected by Section 8(c) of the act.

Finally the company claimed that even if the Board held that the company had violated the act in any way, such violations were minor and did not influence the outcome of the representational election, which the union lost. The union's claims to a majority status in December 1975, based on signed authorization cards, was never accepted by the company or verified by the NLRB. The union was promulgating charges against the company in an effort to gain representational rights after losing an NLRB election. The election was a true determination of the majority of the employees' feelings, and the Board should allow the results of the election to stand.

Question 1: Evaluate the various claims made by the union and counterclaims made by the company regarding the charges of unfair labor practices. Which of the arguments are most persuasive?

Question 2: If the company is found to have violated the act, what would be the appropriate remedy, a bargaining order or a new election?