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Essay – Employment Law

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.

Cihon P. J., & Castagnera J. O. (2016). Employment and Labor Law. [VitalSource Bookshelf]. Retrieved from https://online.vitalsource.com/#/books/9781305893597/

urgentessay2 pages

PRIVACY ACT STATEMENT

6. DECLARATION
I declare that I have read the above charge and that the statements are true to the best of my knowledge and belief.

k. The above-named employer has engaged in and is engaging in unfair labor practices within the meaning of section 8(a), subsections (1) and (list

subsections) g

g. e-Mail

4d.

Fax No.

FORM EXEMPT UNDER 44 U.S.C 3512

UNITED STATES OF AMERICA
NATIONAL LABOR RELATIONS BOARD
CHARGE AGAINST EMPLOYER

INTERNET
FORM NLRB-501

(2-08)

INSTRUCTIONS:
File an original with NLRB Regional Director for the region in which the alleged unfair labor practice occurred or is occurring.

Address

4a. Address (Street and number, city, state, and ZIP code)

d. Address (Street, city, state, and ZIP code)

1. EMPLOYER AGAINST WHOM CHARGE IS BROUGHT

e. Employer Representative

DO NOT WRITE IN THIS SPACE

of the National Labor Relations Act, and these unfair labor

Case Date Filed

a. Name of Employer b.

Tel. No.

i. Type of Establishment j. Identify principal product or service

2. Basis of the Charge

4b. Tel. No.

f. Fax No.

3. Full name of party filing charge (if labor organization, give full name, including local name and number)

practices are practices affecting commerce within the meaning of the Act, or these unfair labor practices are unfair practices affecting commerce
within the meaning of the Act and the Postal Reorganization Act.

(set forth a clear and concise statement of the facts constituting the alleged unfair labor practices)

5. Full name of national or international labor organization of which it is an affiliate or constituent unit (to be filled in when charge is filed by a labor
organization)

(factory, mine, wholesaler, etc.)

Solicitation of the information on this form is authorized by the National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq. The principal use of the information is to assist
the National Labor Relations Board (NLRB) in processing unfair labor practice and related proceedings or litigation. The routine uses for the information are fully set forth in
the Federal Register, 71 Fed. Reg. 74942-43 (Dec. 13, 2006). The NLRB will further explain these uses upon request. Disclosure of this information to the NLRB is
voluntary; however, failure to supply the information will cause the NLRB to decline to invoke its processes.

WILLFUL FALSE STATEMENTS ON THIS CHARGE CAN BE PUNISHED BY FINE AND IMPRISONMENT (U.S. CODE, TITLE 18, SECTION 1001)

c. Cell No.

h. Number of workers employed

4c. Cell No.

4e.

e-Mail

Fax No.
Tel. No.

Office, if any, Cell No.

e-Mail

(signature of representative or person making charge)
By

(Print/type name and title or office, if any)

(date)

4689-3 1/21/17

Delphi Golf and Restaurant, Inc.
315-415-0000

315-415-1111

123 Corporate Drive
Any Town, USA

Dewey, Long and Howe, LLC
315-415-2222

Delphigolf@gmail.com

Golf Course & Resturant Service of food and entertainment

Section 8(b)(l)(A) and (2) and (3) of the NLRA.

On July 29, 2016 Delphi Golf, Inc. and the ABC Union entered into a collective-bargaining agreement. The majority of the
Company’s employees in the collective-bargaining unit covered by the agreement had not designated the ABC Union as
their collective-bargaining representative, the agreement,contains a union-security clause requiring employees who are
members in good standing of the ABC Union to maintain their membership in good standing and all other employees to
become members of the ABC Union on or before the thirty-first day following the effective date of the agreement or the date
of their hire, a job referral procedure, and a provision for check-off of union dues; upon instructions from the ABC Union, the
Company refused to employ the above three waitresses for restaurant positions because the above applicants were not
members of the Union. By conduct set forth in the complaint the Company and the Union infringed upon employee rights
protected by Section 7 of the Act. Jonathan Smith and 3 other employees were suspended for 3 days for their involvement.

Dorthy Pearce,Helen Clark and Mary Ellen Cook–prospective employees for position of waitresses
Johnathan Smith on behalf of non-members of ABC union.

5678 Main Street
Any Town, USA

315-415-6666

315-415-7777

315-415-8888

Jonathan Smith on behalf of the above.

5678 Main Street, Any Town USA
1/20/17

315-415-9999

315-415-3333

315-415-4444

JSmith@me.com

BHR 3565, Employment Law 1

Course Learning Outcomes for Unit V

Upon completion of this unit, students should be able to:

6. Explain the authority of unions in the workplace.
6.1 Explain the process and steps to defend an unfair labor practice charge from a union

employee.
6.2 Explain the defenses to an unfair labor practice charge from a union employee.

Course/Unit
Learning Outcomes

Learning Activity

6
Unit Lesson
Chapter 12

6.1
Unit Lesson
Chapter 14
Unit V Essay

6.2
Unit Lesson
Chapter 14
Unit V Essay

Reading Assignment

Chapter 12: The Rise of Organized Labor and Its Regulatory Framework

Chapter 14: Unfair Labor Practices by Employers and Unions, pp. 428-458

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
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

UNIT V STUDY GUIDE

Organized Labor and
Unfair Practices

BHR 3565, Employment Law 2

UNIT x STUDY GUIDE

Title

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

https://www.nlrb.gov/

BHR 3565, Employment Law 3

UNIT x STUDY GUIDE
Title

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).

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