LIR 863 Richard N. Block.
Fall, 2009
MID-TERM TAKE-HOME EXAM
DIRECTIONS: This is a take-home assignment. It is due on Monday, October 26, 2009 at 10:50 AM. In doing this assignment, you may consult your textbook, case supplement, statutory supplement, overheads, and any notes or briefs you have prepared. There is no reason to consult any material beyond that required in class (i.e. additional cases not in the class material, law review articles, etc.). No credit will be given for citing such materials. In answering the questions, you should consider all possible issues. The assignment should be no more than four double-spaced pages, if typed, or six sheets, written on every other line, if handwritten. In writing your answer, there is no need to repeat the facts; you may assume I know them. The exam may be submitted in hard copy or via e-mail attachment to . If you choose to submit the exam by e-mail attachment, please use the following text in the “Subject” line: “LIR 863 Mid-Term Exam Submission – your last name.” This will permit me to distinguish your mid-term from the many other e-mail messages I receive and will reduce the chance that your electronically submitted mid-term will be mistakenly deleted or misfiled.
Save-A-Bunch Supermarkets operates a grocery chain in Chicago, Illinois and the surrounding suburbs. The Save-A-Bunch retail stores in the Chicago metropolitan areas are serviced by four warehouse and distribution center in or near Chicago. One is within the city limits of Chicago and services the stores within the city limits of Chicago. The Chicago warehouse is a 69-door facility and employs 270 non-clerical hourly employees who are assigned to work within the warehouse. The Chicago warehouse employs several classifications of employees. It employs selectors who receive orders for product to be shipped to the stores served by the warehouse. It employs forklift operators who move the selected product to the loading dock and place it near the trucks which are to carry the product to the stores.
It employs twenty loaders per shift who load the product onto the trucks and seal the trucks for the transport of the products. At the start of each shift, the loaders receive from the shipping manager a list of orders from each store and instructions regarding the delivery route for each truck and the time the truck, fully loaded, must leave the dock. The loader will then direct the forklift operators to each truck. Loaders do not have the authority to evaluate forklift operators or approve time off. If a forklift operator is not performing properly, the loader has the obligation to report the poor performance to the forklift operator’s supervisor. Because of these additional responsibilities, loaders receive $1.00 per hour more than forklift drives and $2.00 more per hour than selectors.
In addition to the 270 non-clerical hourly employees, Save-A-Bunch also employs an additional 30 truck drivers. Their job is to deliver the product to the stores.
Save-A-Bunch also has a service center in the northern suburbs, a service center in the western suburbs, and a service center in the southern suburbs of Chicago to service its many suburban stores. These suburban centers are from 15 to 30 miles from the Chicago center. All employees at the four service centers are on the same compensation and classification system, receive identical benefits, and work under the same human resource policies.
Each of the four centers is assigned stores that it is required to service based on geographical boundaries established by Save-A-Bunch. Approximately 90% of the product in the warehouses goes to the stores in its geographic area. When a center runs short of product, it may request that another center send it product, and that product is delivered by a truck driver assigned to the sending center; these inter-center transfers account for approximately 10% of the shipments of the centers.
Save-A-Bunch does not involuntarily transfer hourly employees among the four warehouses, nor does it post vacancies at each warehouse. Save-A-Bunch, has, in the past, permitted hourly employees who wish to transfer from one center to another to do so provided there are vacancies at the receiving center. Since 1999, when the new Chicago center was opened (it replaced an old warehouse that had was in a building constructed in 1948), 10 hourly employees have used this informal process to transfer their employment from the Chicago center to one of the suburban centers, and 35 employees have transferred from one of the suburban centers to the Chicago center.
Tom Mato is the distribution manager at the Chicago facility and is responsible for the whole warehouse operation. Guy Nice is the human resources manager for the Chicago facility. Save-A-Bunch has an ongoing educational program training for managers and supervisors referred to as “union-avoidance” training.
In 2007, the Food Organizing Workers League (FOWL) began a low level campaign to organize the Save-A-Bunch warehouses, as Save-A-Bunch was the only nonunion grocery chain in Chicago. The responsibility to organize the warehouses fell to Lois Left, a former Save-a-Bunch warehouse employee who had resigned from Save-A-Bunch in 2003 after the birth of her second child. She had taken a full-time organizer position with FOWL in 2006.
Left contacted several Save-A-Bunch warehouse whom she knew when she worked there. Selector Ray Zinn was named head of the in-house employee organizing committee. Other employees involved in the committee were Larry Lettuce, Mary Mushroom, Garfield (“Gar”) Lick, and Betsy Bagel. The committee began an authorization card signing campaign. Zinn made telephone calls to employees’ homes three days per week, Lettuce home telephoned about 5 days per week. Mushroom, Lick, and Bagel helped Zinn make the calls. They also handbilled to inform employees about the union. During the first half of 2008, the campaign consisted of home calling, conducting union meetings, handbilling, and talking to workers about the union. Zinn, Lettuce, Mushroom, Lick, and Bagel continued to be active in the organizing efforts. By mid-September, 2008, the Union had obtained authorization card signatures from 140 of the 270 hourly employees in the Chicago warehouse.
On September 30, 2008, Zinn called Nice and informed him that a majority of the hourly employees at the Chicago center had signed FOWL authorization cards and that FOWL was demanding recognition as the bargaining representative of those employees. Nice responded “never!” and hung up the telephone.
On October 12, 2008, FOWL filed a representation petition with the NLRB requesting an election in a bargaining unit of “all hourly employees in non-clerical, non-driving classifications at the Save-A-Bunch warehouse and distribution center in Chicago, Illinois.” The election was scheduled for December 15, 2008.
After the representation petition was filed, using the Excelsior lists provided by the NLRB regional office in Chicago, the Union continued to telephone employees at home and hold union meetings. In addition, the committee also added personal home visits to its activities. Once the petition was filed, the union committee was willing to openly organize at the warehouse. On the morning of October 19, Lick posted pro-union material on the bulletin boards located in the garage, cafeteria, maintenance locker room, front docks, by the shipping and receiving offices, next to the time clocks, and in the dispatch office. Material was also posted on the glass window of the shipping office. These had been removed by the afternoon of October 19.
On October 20, Lick posted identical materials, but as he was doing it, he was seen by Nice. Nice directed him to remove the union postings. Lick stated that Save-A-Bunch had permitted employees to post material for the sale of automobiles, boats, and other items. Nice pointed out that Save-A-Bunch did not use the bulletin boards to post employment-related messages or any material presenting its side of the union organizing campaign. When Lick again refused to remove the union material, he was discharged for “insubordination” and for violating the Save-A-Bunch solicitation policy which was as follows:
Save-A-Bunch respects the right of all associates to our individual beliefs, opinions, memberships and associations. We respect and encourage the sharing of ideas and opinions among fellow associates. As long as we abide by the Rules of Unacceptable Conduct (see especially No. 18, neglect of work responsibilities) we may share opinions, seek support for organizations which we support or in which we are members, discuss social or job-related issues, and engage in similar activities with fellow associates at any time.
We must insist, however, that any such communications not disturb or interfere with the work of our employees.
We must also prohibit any solicitations for commercial purposes (e.g. sale of magazines, life insurance, or merchandise) on company premises.
Finally, in order to maintain a pleasant and productive work environment for our employees, we must prohibit the distribution of literature at any time for any purpose in working areas of the facility
On November 1, selector supervisor Nice was speaking to several employees about the union at the start of second shift. Nice told the employees:
Be careful how you vote and to make the right decisions because they have sufficient capacity at the suburban locations to start shipping work out of the Chicago warehouse to the other warehouses. If costs got too high at the Chicago warehouse, it would be difficult to justify keeping the Chicago warehouse open.
Over the years, a line of promotion had developed at the Chicago warehouse through which employees “moved up” into the higher paid truck driver positions. Save-A-Bunch posts signup lists for truck driver positions in the first 2 weeks of January and July. A significant number of selectors and forklift drivers (15–20) sign up each time. On November 6, Nice told employees in the cafeteria during a break that:
If the Union were to come in, drivers would not be in the union and there would be no guarantee that they would continue to permit employees to take those positions, which would not be in the union. Drivers are paid more than any other employees. We want to keep giving you a chance at those positions, but we don’t know if the union will agree.
Following the scheduling of election, employees were actively campaigning in support of the Union. They passed out union fliers, continued to obtain signed authorization cards, wore union T-shirts that said, “Vote Yes for the Union” and began home visits to their fellow employees on behalf of the Union. Save-A-Bunch posted a memo in the warehouse in opposition to the home calling. The memo stated that the pro-union employees were harassing employees at their homes and informed the employees that such harassment would not be tolerated by the company.
Zinn was called to Nike’s office on November 20, 2008. Nice said Mato wanted to see him. When they arrived at Mate’s office employee Penelope Peas was also present. Peas told Zinn she did not want him to bring the union people to her house anymore. Zinn told Peas they had discussed this on the floor and asked why Peas was bringing it up in front of management. Peas continued and became agitated and threatened Zinn that she would turn her dogs on Zinn and any other “union types” if they came by her house again. Mato stated that they were all adults and could settle this in a civilized manner. Zinn told Peas that if she had told him this on the prior visit, they would not have come by her house a second time.
Mato then pulled out a folder and told Zinn that if anyone does anything to misrepresent Save-A-Bunch outside the workplace, that would be grounds for termination. He told Zinn that he had fired two employees for something they did outside of work. He then read a statement from the Company’s rules that if anyone “harasses someone, those are grounds for termination.” Mato then reminded Zinn that all employees, including Zinn, are subject to Save-A-Bunch’s rules of unacceptable conduct regarding conduct outside the workplace. In reference to a question by Peas as to how long the Union could campaign, Mato told her there was no time limit. Mato also said that the union was attempting to “chop Save-A-Bunch off at the knee” and he would not let that happen; too many jobs depended on the success of Save-A-Bunch. Mato also said that anyone who supported something like that should be ashamed of himself. Zinn asked what why he should be ashamed of protecting the little people against the company.
Since mid-November, 2007 Zinn had been having punctuality problems caused by the needs of this ill wife. He had received one oral, two written warnings, and a 2-day suspension for these incidents. The two-day suspension had been served on July 30-31, 2008. Finally, on November 30, Zinn had accumulated a sufficient number of incidents of tardiness to warrant discharge under Save-A-Bunch policy. On December 2, Zinn was called into Nice’s office and was informed that he had exceeded the allowable number of tardiness incidents and was being discharged. Zinn protested, stating that the problems were beyond his control, as they were caused by his wife’s illness.
Zinn also said that several other employees had punctuality problems as severe as his but had not been discharged or even suspended. Nice said that the physical condition of Zinn’s wife was not a concern of Save-A-Bunch, that Zinn was obligated to be at work at the start of his shift. Nice conceded that some employees with poor tardiness records had not been discharged, but also pointed out that others with poor tardiness records had been discharged. The discrepancies were caused by poor supervisor performance, specifically an unwillingness on the part of some supervisors to impose discipline, and the offending supervisors had been informed that their performance must improve or they would face termination. Mato said that Zinn’s supervisor was “doing it right.” Zinn said that he talked to “a lot of people around the plant,” and nobody had ever said that any supervisors could be “in trouble.” Mato responded that what happened between Mato and the supervisors was “none of Zinn’s business,” that he did not “need to prove anything to Zinn,” and that Zinn “did not know as much as he thought he did.” Zinn was then issued a final check and escorted from the warehouse by security guards.