Unit V Essay
Course Textbook: Cihon, P. J., & Castagnera, J. O. (2017). Employment and labor law (9th ed.). Boston, MA: Cengage Learning.
Assume that an unfair labor practice charge was filed against your company by several employees and three prospective employees. See the form linked below indicating the charge, which outlines the scenario below:
FORM NLRB-501: Case 4689-3
On July 29, 2016, Delphi Golf, Inc. and the union entered a collective bargaining agreement. The majority of the company’s employees covered by the agreement had not designated the union as their collective-bargaining representative. The agreement contains a union-security clause requiring employees who are members in good standing of the union to maintain their membership in good standing and all other employees to become members of the union on or before the 31st day following the effective date of the agreement or the date of their hire. The union instructed Delphi Golf, Inc. not to employ three servers for restaurant positions in the company because the servers were not members of the union. The company is an employer within the meaning of Section 2(2) of the act engaged in commerce within the meaning of Section 2(6) and (7) of the act.
Explain in a two-page essay the process and steps your company will have to take to defend this action. Explain the defenses to the action and if the union employees have valid claims. What actions by the employer should have been done differently, if at all? What actions by the union should have been done differently? Who, if anyone, is liable?
You are required to use at least your textbook as source material for your response. All sources used, including the textbook, must be referenced; paraphrased and quoted material must have accompanying APA style citations.
Unit V EssayCourse Textbook: Cihon, P. J., & Castagnera, J. O. (2017). Employment and labor law (9th ed.). Boston, MA: Cengage Learning.Assume that an unfair labor practice charge was filed against yo
Unit Lesson Unions The first unions began around 1866 with the founding of the National Labor Union (NLU). One has to imagine the working conditions that existed when unions became popular. People were working for low pay, long hours, and in unsafe working conditions. These people had little control over seeking better wages, better working conditions, and shorter hours. The rise of unions really increased from 1933 to 1947. In 1933, there were 3 million members of unions, whereas by 1947, this had grown to 15 million. By 1955, 40 percent of the labor force in manufacturing belonged to a union. In the 1960s, because other laws were put into effect by the legislature, union membership began to decrease. By the 1960s, there was a Fair Labor Standards Act and an increase in the minimum wage. The Occupational Safety and Health Act, commonly called OSH Act, became effective in 1970. Prior to the rise of unions there was limited manufacturing in the United States. The United States became more of a service industry. With more competition, there was less likelihood for someone to think about becoming involved in a strike or joining a union. Some of the benefits of a union are the increase in pay and better, safer working conditions. After the Civil War, there was rapid industrialization. There were no laws to protect anyone from long hours, low wages, and unsafe conditions. With the threat to strike, a group is more powerful than one person. There was strength in numbers. Collective bargaining dictates when and how someone can be fired. There is no flexibility in some of the rules that deal with unions. There are some instances in which management worked with union labor Organized Labor and Unfair Practices representatives to the disadvantage of the union employees. There are two types of unions: industrial unions and craft unions. An industrial union is comprised of all employees in a company or in an industry; for instance, the United Auto Workers may be an industrial union. A craft union would be a particular closely related group, such as a plumber’s union or an electrician’s union. Federal Statutes The American Federation of Labor (AFL) was established in 1886. The Congress of Industrial Organizations (CIO) was established in 1935. These two unions combined to form the AFL-CIO and became one industrial union in 1955. When looking at the rise in unions, one needs to look at what was happening in the country at that time. Between 1933 and 1947 when the union numbers increased from 3 million to 15 million, the country had gone through The Great Depression and was in a post-war era of boom. There are three main labor acts: the National Labor Relations Act (NLRA, 1935), sometimes called the Wagner Act, established in 1935; the Labor Management Relations Act (LMRA) or the Taft-Hartley Act, established in 1947; and the Labor Management Report and Disclosure Act (LMRDA) of 1959, also called the Landrum-Griffin Act. The main focus of the LMRA was to encourage the growth of unions and keep management from interfering with this growth. The National Labor Relations Board (NLRB) is an administrative board for the enforcement of NLRA. Information on the NLRB and its rulings can be found at the website linked below. This may be useful for the unit assignment: https://www.nlrb.gov/ Section 7 of the NLRA (1935) gives employees the right to organize, join or assist in labor organizations, or engage in concerted activities for the purpose of collective bargaining. It is interesting to follow the law surrounding the words, “concerted activity,” and the courts’ interpretation of what that term means. The activity has to be concerted to get protection under Section 7. That means that the activity has to benefit everyone. It cannot be an individual act; however, a person can act individually if they are acting on behalf of an entire group of employees (NLRA, 1935). If the employee’s conduct is honest and has a reasonable belief that his or her action benefits the entire employee workforce, it can be protected as a concerted activity. The act was amended to include Section 8, subsections (a) and (b). Section 8(a) indicated that unfair labor practices by the employer should not interfere, restrain, or coerce the employee in execution of the rights under an exercise of their rights under Section 7 (NLRA, 1935). It is interesting how 8(a) applies, in terms of the use of social media. Under 8(a), the employer is prohibited from discriminating in hiring or firing of union members. They also cannot interfere or retaliate because of a charge brought by an employee or refuse to bargain with representatives of employees. The concerted activity does not just apply to unions, but it applies to non-union members (NLRA, 1935). If the employee uses social media and posts statements that may damage the company, the courts will look at whether the employer’s ban of the social media post can be construed to chill employees in the exercise of their rights under Section 7 (Cihon & Castagnera, 2017). Looking at the case of Costco Wholesale Corporation v. United Food and Commercial Workers Union, Local 371, (2012), a policy in Costco’s handbook stated, Any communication transmitted, stored or displayed electronically must comply with the policies outlined in the Costco Employee Agreement. Employees should be aware that statements posted electronically (such as [to]online message boards or discussion groups) that damage the company, defame any individual or damage any person’s reputation, or violate the policies outlined in the Costco Employee Agreement, may be subject to discipline, up to and including termination of employment. (p. 1100) In the lower court, an administrative law judge ruled that the statement was sound and reasonable. The case went to the NLRB on appeal, and the NLRB ruled that the employees can interpret the Costco policy as prohibiting activity under Section 7 of the Labor Act. Section 8(a) was enacted to enforce the rights under Section 7. Section 7 allows employees to take part in protests, picketing, and strikes and to organize and join unions. It allows other concerted activities for mutual aid or protection of employees (NLRA, 1935). The law also applies to protected communications. Costco also had other policies that prohibited workers from sharing private information about sick calls, leaves of absence, workers’ compensation injuries, personal health information, payroll, credit card, and Social Security numbers, as well as names, addresses, and telephone numbers. The National Labor Relations Board looked at these policies, in addition to a policy that indicated that the employee could not post comments that may damage the company. The NLRB did not refer to social media, Facebook, or Twitter, but Costco’s policy under the circumstances: “… employees would reasonably conclude that the rule requires them to refrain from engaging in certain protected communications, i.e., those that are critical of the Respondent or its agents” (Costco, 2012, p. 1101). Again, a concerted activity is an activity that involves the entire group. It is not an activity that involves an individual employee. If an employee made a statement on Facebook that he or she dislikes working at Costco, that could be a violation of Costco’s policy. However, if the employee made a statement that the working conditions at Costco are such that employees are not given adequate time off, work long hours, and are underpaid, that may be considered a concerted statement that affects the entire group and would fall under NLRB’s protection. References Cihon, P. J., & Castagnera, J. O. (2017). Employment and labor law (9th ed.). Boston, MA: Cengage Learning. Costco Wholesale Corp., 358 N.L.R.B. 106 (2012). National Labor Relations Act, 29 U.S.C. §§ 151-169 (1935).