Read and analyze the two (2) case study problem and answer the case questions that are presented.

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Read and analyze the two (2) case study problem and answer the case questions that are presented. Your case study response should be approximately 4 pages long and use the MLA writing format

CASE STUDY 5-1 Are These Employees Engaged in a Protected Concerted Activity?

Marianna Cole and Lydia Moore were coworkers employed by the ACE, Inc. to assist victims of domestic violence. The two employees frequently communicated with each other by phone and text message during the workday and after hours. According to Cole’s credited testimony, Moore often criticized other employees during these communications, particularly housing department employees who, Moore asserted, did not provide timely and adequate assistance to clients. Other employees similarly testified and Moore spoke critically to them about their work habits and those of other employees.

This “criticism issue escalated on Saturday, October 9, 2010, a nonworkday, when Cole received a text message from Moore stating that the latter intended to discuss her concerns regarding employee performance with Executive Director Lour Iglesias. Cole sent Moore a responsive text questioning whether she really “wanted you to know … how u feel we don’t do our job …” From her home, and using her own personal computer, Cole then posted the following message on her Facebook page:

Lydia Moore, a coworker feels that we don’t help our clients enough at ACE. I about had it! My fellow coworkers how do u feel?

Four off-duty employees—Dame Rodriguez, Ludi Rodriguez, Yaritza Campos and Carlos Ortiz—responded by posting messages, via their personal computers, on Cole’s Facebook page; the employees’ responses generally objected to the assertion that their work performance was substandard.

Moore also responded, demanding that Cole “stop with ur lies about me.” She then complained to Iglesias about the Facebook comments, stating that she had been slandered and defamed. At Iglesias request, Moore printed all the Facebook postings, Iglesias discharged Cole and her four coworkers, stating that their remarks constituted “bullying and harassment” of a coworker and violated the ACE’s “zero tolerance” policy prohibiting such conduct.

Questions

1. Are these employees engaged in a protected concerted activity?

2. If ACE had terminated Moore also, would a protected concerted activity be involved?

3. Does it matter that a union was not involved?

4. How should the NLRA rule? Why?

CASE STUDY 5-2 Are the Employees Involved in Activities That Are Legal?

The representation election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots showed 38 ballots for and 28 against the Union with 5 challenged ballots, an insufficient number to affect the results.

The Employer contended that the Union distributed a flyer during the critical period containing statements purportedly made by employees that they did not, in fact, either make or authorize.

The Union explained to employees that it was making a campaign flyer. The Union obtained signed release forms from employees willing to be photographed and/or videotaped and to provide statements of support for the Union. Employees who signed the release forms authorized the Union “to use pictures made of me and comments made by me on this date in video tapes, printed material, digital and online media, advertisements, and any other materials” Two questions on the release form asked employees how having a union would (1) “improve your life and/or the life of your family” and (2) “help you provide better care [for your patients].”

After collecting signed releases from approximately 49 employees in a proposed bargaining unit of 73, the Union published a campaign flyer containing statements based on the answers in the release forms and on the prior statements employees made in campaign videos expressing their desire for a union. The cover of the flyer displayed the words “We’re Voting Yes for United 1199!” between two group photographs of employees. These words were repeated on the back of the flyer, surrounded by individual photographs and employee statements. The flyer included statements from approximately 48 individual employees, and approximately 25 of the statements included the words “I’m voting yes,” although none of the employees expressly authorized the Union to use those specific words.”

The Employer objected to the Union’s use of the words “I’m/We’re voting yes” in quotes on the flyer. It claimed that the “voting yes quotes were unauthorized misrepresentations that deceived voters and that should require a second election.

Under the well-established standard for evaluating misrepresentation in campaign propaganda, an election can be set aside on the basis of misleading campaign statements only if a party has used “forged documents which render the voters unable to recognize propaganda for what it is.” Under the broader rule, an election may be set aside “where no forgery can be proved, but where the misrepresentation is so pervasive and the deception so artful that employees will be unable to separate truth from untruth and where their right to a free and fair choice will be affected.” The Union claimed that it had received sufficient evidence of the employees’ support that its insertion of the words “I’m voting yes” into employees’ statements expressing their desire for a union did not amount to misrepresentation, regardless of whether employees expressly authorized attribution of those specific words to them.

The Union made an effort to verify the information. The Union asked all the employees to state their reasons for supporting union representation and for permission to use their names, images, and statements in campaign literature. The campaign flyer included statements received in the answers supplied in the signed release forms. And many of the employees quoted in the flyer also appeared in a campaign video sincerely stating their desire for a union. Based on these interactions, the Union reasonably believed that each of the named employees was planning to vote “yes” for representation. To suggest that by including the phrase “we’re voting yes” or I’m voting yes” in quotes the Union engaged in “pervasive misrepresentation” “artful deception,” or even misrepresentation at all is not supported by these facts. The Union did exactly what each of the employees who signed the release form would have understood the Union was going to do—it used the employees names, images, and words in an effort to create a persuasive piece of campaign literature.

In turn, no reasonable employee reading the Union’s flyer would think that all the listed employees actually got together and literally said, “We’re voting yes.” That language appears on the cover and back of the flyer and is not attributed to any specific employee. A reasonable reader would have understood those words, as well as the repeated phrase, “I’m voting yes,” as characterizing the pro-union sentiments of the named employees as a whole. There was no “artful deception” of the reader: that characterization was accurate and was verified by the Union. Surely, readers could “recognize the propaganda ‘for what it is.’” There was no misrepresentation.

Questions

1. Were the Union actions sufficient to cause the election results to be overturned?

2. Did the Union misrepresent employees who signed the release forms?

3. If the NLRB agreed with the Employer, what action would the NLRB take?

4. How should the NLRB rule? Why?

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