Construction Case Analysis

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Requirement

Part A – Basic Knowledge (This is worth 30% of the test score. Each question is worth 3 points.)
Part B - Case Analysis (This is worth 20% of the exam. Each item is worth 2 points.)
Part C – Case Analysis - (This is worth 50% of the test score.)

Solution

Part A – Basic Knowledge  

True or False:  Companies that would like to avoid unionization can hire only employees who pledge to refrain from union membership. False
True or False: The worker must be part of the designated bargaining unit in order to vote in the election.-True
The underlying principle for the NLRB’s determination of an appropriate bargaining unit is that only employees who have__b__ can be appropriately grouped in that unit. the same number of years of total work experience similar wages, hours, and working conditions similar cultural and regional backgrounds the same educational background the same supervisor

True or False: If the bargaining unit has 100 people and 75 sign authorization cards, under the existing law, the election is waived and the union automatically wins. True  
True or False:  If the bargaining unit has 100 people, at least 50 need to sign authorization cards in order for an NLRB-sponsored secret-ballot election to be conducted. False 
True or False:  Given the most recent NLRB ruling, employees who have access to the company email system are restricted from using it for union organizing. False  
True or False:  Neither labor nor management can be certain if a specific action will constitute an unfair labor practice under Section 8 because the politically-appointed NLRB changes its opinion. False
True or False:  If the bargaining unit has 100 people and 80 of them vote in a secret-ballot election, at least 41 must select the union in order for it to win. True
Which of the following statements is TRUE of certification of a union by the NLRB using a secret-ballot election?    
Once a union is certified by the NLRB, its status is binding on the employer for at least two years, during which time the employer must bargain with it. False 
It is mandatory for a certified union to undergo a recertification election every two years. False
If a certified union fails to reach its first contract within two months of bargaining, it is penalized under the NLRA. False
The NLRB will not entertain a rival certification petition for a bargaining unit represented by a certified union within the first year. True
True or False: The certified union has exclusive bargaining rights and responsibilities for only those employees within the bargaining unit who join the union. True

Part B  - Case Analysis

For 3 years Jack Sandeen has worked for Crate Builders, an industrial plant that manufactures and sells high-tech packing containers in an employment-at-will state within the eastern United States.  When he was hired, he believed he would receive training that would enable him to move from the factory floor into the supervisor’s role.  The company experienced a downturn in revenue, however; and, along with 50 hourly workers, several managerial positions were eliminated.  During the restructuring, the boss’s son, Darrell Shelton, was appointed head of Jack’s department.  There has been friction between Darrell and the rest of the staff.  They don’t like the new scheduling and work quotas he has implemented.  When Jack complained to Darrell that the required quota was too high, in front of the other workers, Darrell snidely reminded him that he was the supervisor, times were tough, and more people could be let go.  
That evening, Jack went with a few of the guys to the local pub.   A union organizer was at the bar and overheard the group complaining about Darrell.  The organizer told them about their right to representation.  He gave them his business card along with a few brochures to take home.  The next week, Darrell found one of the brochures on the floor by the locked company bulletin board.  The staff saw him crumple it and spike it into the trash can.  He turned and glared at Jack.  “You think you’re so smart.  We’re watching you.  We know about your little chat.”  He bit back more words then walked into his office and slammed the door.  
Several weeks later, Jack was called into the Human Resource Management office.  He was informed that his production numbers were low and they needed to cut more staff so he was being let go.  Jack asked to see the statistics for the department, but HR said that was proprietary information.  When he asked who else was being fired, HR told him that was also private information.  The guys at the bar told Jack later that they could not find anyone else who was terminated when he was.  
True or False:  The comment “We know about your little chat” would help management in a Wright Line test.
True or False:   If Jack’s production numbers were higher than most, this data would support
 Management in a Wright Line test. True
True or False:  Since this is an employment-at-will state and there is no union in place, management can legally terminate Jack without considering any Wright Line test results. False
4. True or False: At work, Jack had a right to solicit other employees in his department to join the union as long as he did it during regular working hours and didn’t do it in front of customers. False
True or False:   The union would see the comment “We’re watching you” as an unfair labor practice under Section 8(a)1 of the NLRA. True
True or False:  Promoting Jack to the supervisor in the last restructuring would have been a legal way to avoid his union participation. True 
True or False:  The company can terminate a supervisor at any time for any reason if it does not have other policies or contracts that contradict that flexibility.  False
True or False:  Terminating others who were not involved with the union at the same time Jack was let go would support the company’s position in an unfair labor practice charge. True   
True or False:  Section 7 rights require the company to terminate those with less than the 3 years seniority  Jack has before letting him go - False
True or False:  Darrell’s comments represent Budd’s concept of voice.   False

Part C – Case Analysis 

The underlying principle of National Labor Act is that the employees have a right to represent their needs and demands through union representation wherein Section 7 of the NLRA guarantees employees the right to support or not support any union, to engage in collective action and bargain collectively with their employer. The employers on the other hand, are prohibited from discriminating employees for participating in union activities. In the present case, while the employees wanted to be represented by a union, the company used all of its persuasive measures to convince them against unionization. When these persuasive methods failed, the employees were threatened that they would be dismissed from their jobs, and would also lead to closing down of shops. Aggrieved by this action of the employers, the union is contemplating on filing a case with the NLRB. 
Unfair Labor Practice refers to practices adopted by the employers which contravene the rights of employees granted under Section 7 of the Act, thereby interfering with an employee’s right to organize, assist or participate in a union and engage in the process of collective bargaining. Section 8(a)(1) of the NLRA renders it unfair labor practice for any employer to interfere, restrain or coerce employees in the exercise of the rights guaranteed in Section 7” . However, the employer can take proactive steps and convince the employees through negotiations and meetings against union formation through fair means.

Analysis of the case

Unfair labor practice claim(s)    Union’s position for each    Company’s position for each
Dissuading the union by stating that an injunction had been issued during prior union campaign prohibiting solicitation on company property    The union workers can lobby during the non-working hours and in non-working places    The company can prohibit non-employees from lobbying on the company property unless it is difficult for a union to carry out the union activities 

Posting of “no solicitation” signs in all stores and directed that those signs be enforced    The union can carry out its activities unless the employer can prove that such restrictions are necessary to maintain discipline.     The company has a policy forbidding all forms of solicitations and lobbying during work hours
Threatening employees with loss of jobs for participation in union activities    Such threats to employees lead to interference of the rights guaranteed under Section 7 and makes it an unfair labor practice under Seciton 8(a)(1) of the Act    The employer’s contention is that it interferes in the company’s ordinary course of business.
Threatening to close the shops if employees select a union to represent them    There is a clear violation of Section 7 of the NLRA, which gives enough ground for the employees to form a  union    Has informed the employees in good faith of the possibility of strikes, fines and assessments if they would participate in the union.
Bringing about changes in the company rules subject to mandatory bargaining such as bringing in a 40 hour workweek, installation of canopy lights, receiving of overtime work pay
The employer’s action is a result of bad faith, as the company has an obligation to collective bargain in good faith     Highlighted the good features of working in the company and that there are a number of benefits such as job security and steady work included 
Promising the employees benefits including death, insurance, benefits in order to dissuade union activities    Violation of 8(d), resulting in the material modification of employee conditions    The company has ensured long term benefits for the employees and the benefits of job security and best pay package. 
Making all other incidental unilateral changes subject to mandatory bargaining     The company has an obligation under Section 8(a)(5) to not modify employee conditions     All made under good faith for the benefit of the employees
It is therefore evident that the company has indulged in a number of unfair labor practices, thereby causing violation of Section 7 and 8(a) of the Act. While bringing about changes in the working conditions subject to rules of mandatory bargaining in order to dissuade the employees from unionization and engaging in the process of collective bargaining, is illegal, the same goes as far as the threats to close down and layoffs are concerned. The best resort for the company is to adopt means of fair means of labor practices and adopt changes in methods and management during the course of collective bargaining between union and employers.

References

• Hyman, J. T. (2012). The Employer Bill of Rights: A Manager's Guide to Workplace Law. New York: Apress.

• Labor Board v Katz, 369 U.S. 736, 1962 (U.S. Supreme Court May 21, 1962).

• Lechmere, Inc. v. National Labor Relations Board, 502 U.S. 527 (1992) (The Supreme Court November 1992).

• NLRB. (n.d.). Interfering with employee rights (Section 7 & 8(a)(1). Retrieved October 20, 2016, from National Labor Relations Board: https://www.nlrb.gov/rights-we-protect/whats-law/employers/interfering-employee-rights-section-7-8a1

• Washington Fruit and Produce Company and International Brotherhood of Teamsters v National Labor Relations Board, , 343 NLRB 125 (NLRB August 26, 2011).