Caterair Intern. v. N.L.R.B.

Citation22 F.3d 1114
Decision Date29 April 1994
Docket NumberNo. 93-1008,93-1008
Parties146 L.R.R.M. (BNA) 2209, 306 U.S.App.D.C. 32, 62 USLW 2733, 127 Lab.Cas. P 11,081 CATERAIR INTERNATIONAL, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Petition for Review of an Order of the National Labor Relations Board.

Ivan H. Rich, Jr., Louisville, KY, argued the cause for petitioner. With him on the brief were Thomas K. Wotring and Dean C. Berry, Washington, DC.

Frederick C. Havard, Supervisory Atty., N.L.R.B., Washington, DC, argued the cause, for respondent. With him on the brief were Frederick L. Cornnell, Atty., N.L.R.B., Linda Sher, Acting Associate Gen. Counsel, N.L.R.B., and Aileen A. Armstrong, Deputy Associate Gen. Counsel, N.L.R.B., Washington, DC.

Before WALD, EDWARDS, and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

Caterair International ("Caterair"), a company that furnishes meals and related services to the airlines, seeks review of an order of the National Labor Relations Board ("NLRB" or "Board") finding that the company committed unfair labor practices against Chauffeurs, Sales Drivers, Warehousemen & Helpers, Local 572, International Brotherhood of Teamsters, AFL-CIO ("Union"). Adopting the findings of the Administrative Law Judge ("ALJ"), the Board concluded that Caterair had impermissibly influenced the signing of a decertification petition and relied upon that tainted petition to refuse to recognize the Union in violation of Secs. 8(a)(1), (3), and (5) of the National Labor Relations Act, 29 U.S.C. Sec. 158. The Board issued an order requiring Caterair to cease and desist from all unfair labor practices and compelling Caterair to bargain with the Union. Caterair contends that the record lacks sufficient evidence to support the Board's conclusions and that the Board failed adequately to explain its affirmative bargaining order. We affirm the Board's substantive conclusions and enforce the Board's order insofar as it requires Caterair to cease committing unfair labor practices. Because we agree that the Board did not provide the requisite explanation for its bargaining order, however, we remand as to that portion of the remedy so that the Board may supplement its decision.

I. BACKGROUND
A. Factual Context

Caterair has provided food services for many of the nation's commercial airlines since it took over the operations of Marriott In-Flite Services in December 1989. Since September 1988, employees at three of Caterair's present facilities in California have been represented in a single unit by Chauffeurs, Sales Drivers, Warehousemen & Helpers, Local 572, International Brotherhood of Teamsters, AFL-CIO. In 1989, the Union and Marriott In-Flite Services negotiated a contract that was effective from June 1, 1989 until May 31, 1991. Among other provisions, the contract contained a union security clause requiring that union dues and fees be deducted from the paychecks of employees who authorized such deductions. Caterair succeeded to the entire contract and recognized the Union when it assumed Marriott's operations.

By 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, 1 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." Transcript (Tr.) of February 4, 1992 Hearing (Testimony of Luz Davalos), at 72. 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. Id. 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." Id. 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. See id. at 79.

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." Tr. of February 6, 1992 Hearing (Testimony of Rosa Rayas), at 401. 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. Id. at 404. He stated that the "Union was no good" because "the Union actually was a Mafia." Id. at 405. Pacheco also told her that her signature was necessary because "they only needed a few more signatures to finish the amount of signatures that the Government requires to get the Union out." Id. 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." Tr. of February 6, 1992 Hearing (Testimony of Carlos Sosa), at 422. 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." Tr. of February 4, 1992 Hearing (Testimony of Jose M. Vasquez), at 191. After Vasquez asked what the list was for, Monroy responded "that he was taking the signatures so that the Union will stay in." Id. (emphasis added). Vasquez testified that everyone at the company knew he was pro-Union. 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. See Tr. of February 6, 1992 Hearing (Testimony of Alfred Mercado), at 447. 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." Tr. of February 7, 1992 Hearing (Testimony of Victor Saldana), at 512. 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?" Id. 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. 2 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.

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