Interfering with the Employee’s Right to Unionize Essay

Ques 1. Case study 1-1 – Interfering with the Employee’s Right to Unionize (Page 45)

a. Based on the facts laid out in the case study 1-1, Fortin is clearly a victim of discrimination against unionized movement.  Her record has been exemplary prior to her attachment to the union.  The day she became branded as an active union supporter marked the end of her career in the company.  In fact, her first disciplinary warning came hours after she testified on behalf of the union in a representational hearing.  The offenses cited in the disciplinary letters were flimsy and have not been uniformly applied.  Fortin had received the warning letters for being in an area in the warehouse where she wasn’t supposed to be.  These visits in past did not warrant management’s attention.  It only became an issue after Fortin was seen as a threat.  Her employer tried and succeeded in finding fault in her work in order to have a ground to terminate her employment.  Her employer further retaliated by removing her direct, exclusive line — a very

important tool in her work.  The company worsened her work environment by disallowing special van deliveries to her account customers, a trick that severely affected her sales.  The absence of the vans caused her customers to complain and management used the complaints and the lower sales to accuse Fortin of being ineffective in her work.  Overall, the employer manipulated the workplace to threaten Fortin into keeping clear of union activities.  But when she held firm, management, Fort became a threat and has to be eliminated from the workplace.

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b. The labor court, when ruling on a case, will not simply rule based on the supervisor’s no knowledge concerning Fortin’s union activities.  Before deciding on whether to overturn or uphold the lay off, the court will hear and evidence from both parties.  In the hearings, Fortin is

sure to bring in as witnesses some of her former co-employees, particularly those who have been with her for some time.  The circumstances leading to her termination would come to the surface, wherein both sides would have deferring arguments.  Nevertheless, Fortin’s impeccable work performance before her involvement with union activities would give her good defense against the supervisor’s decision.  She can bring to the court’s attention how she was promoted to handle their government accounts as evidence of her capabilities.  In fact, she got a commendation for increasing sales on those particular accounts.  The argument would lead to Fortin’s side correlating her union support with the disciplinary warnings.  Also, the court will come to know about the disconnection of her exclusive line, which gave clients direct access to her.  The removal of the special van services will also be highlighted.  Using these reasons, Fortin’s side will not have difficulty convincing the court that the termination was illegal.  In this regard, the new supervisor’s decision will be rejected by the court.

c. Employers look at labor unions as threat to the organization.  Unions can legally demand and negotiate for overall employee compensation and work conditions, and it functions as representative of a member-employee whose contract with the company is not being honored.  Taking as examples the various work stoppages in different companies because of unmet union demands, many employers fear the same for their business.  No employer would want its employees to have that much bargaining power.  By having the law behind them, unions can resort to strikes and cripple operations in a particular company.  Employers resent not having the last say on their companies.  With the passage of the National Labor Relations Act, workers were empowered to hold elections to decide if they want a union in their workplace.  But despite this, employers continue to fight the Act and lobby for a more pro-employer law.   Companies can become greedy and would like to keep as much of the earnings to themselves. In this sense, employers resist unions because it means lower profits since they would need to pay higher wages to their employees, improve health benefits, provide a safe work environment, and more importantly, they can’t just fire anyone who is a member of a union.

Ques 2. Case Study 1-2 – Discriminating Against Union Members (Page 46)

a. In any relationship, compromise is important.  An employee-employer relationship should also exhibit the give and take value.  Employers must allow an employee to do his or her two functions provided that nothing gets neglected.  If the employer is truly intent on providing its employees with satisfactory wages, benefits and working condition, then, he must not discriminate against union members.  What happened in the nursing home case is that the employer’s first priority is the filling up of shifts in the workplace.  The employer didn’t show a willingness to meet union members’ halfway.

b. The reason why non-professional jobs in a nursing home are often difficult to fill is maybe because of the absence of security.  With a union in a nursing home, employees would feel that they’re not in danger of losing their jobs at any given time.  They can be assured of getting the most satisfactory compensation and working conditions.  In this sense, unions would help nursing homes retain employees.

c. In a way, the nursing home company has shown an anti-union attitude.  The owner claims that the union negotiating team are needed to fill in shifts even on days of negotiation.  This claim sounds valid given the difficultly of finding capable persons to work for nursing homes.  However, there are many other employees in this particular nursing home.  The employer could have spared the union negotiating team from light duty or part-time duty since he knew they were also preparing for an important event. The employer’s action would look like he’s trying to muddle the labor contract negotiation.  If the negotiating team can’t properly plan or fail to attend the negotiation, the employer probably hopes to get the best of the bargain.

Ques 3. Case Study 2-1- Job Performance (Page 101)

a. When the tester position was still under the bargaining unit of the union, the four employees may have felt that they weren’t getting the best out of the deal, hence, the lapses in their performing the jobs.  Removing the tester position from the bargaining unit gave the company

authority to demand from the four testers a quality performance.  Once the job classification is not under the union bargaining unit, then, these employees can easily be replaced with more capable workers.  They won’t be able to use the CBA to defend their positions since the union has relinquished control of the job.

b. Yes, the company should have brought the issue on the table during the negotiation process.  The bargaining unit has the right to know how the experimental position is going.

c. The sidebar agreement provided that the transition of the job must not cause any reduction in quality.  Since the four testers failed in this aspect, then, the company is justified in taking away the positions from the union.  However, the company should have mentioned something about

it during the CBA negotiation to prevent any misunderstanding with the union.

Ques 4. Case Study 2-2- Company Unions (Page 102).

a. The union is not correct in challenging the election since the company has not violated the National Labor Relations Act by openly expressing its opinion against the establishment of a collective bargaining unit.  Although the company urged employees to turn away from the union, it did not coerce nor frighten those who are for establishing a union.

b. I believe the judge would side with the company since under the law, it’s not illegal for firms to express their  opinions against unions.  However, if the union can prove and show evidence that there was a use of coercion on any employee, then, the company would be in violation of the

law.

c. The company fears the creation of a collective bargaining union and has created instead a company union to have some form of control over the process.  By initiating the process, the employees would think that it has its best interest at heart.  The Plant Council is there not only to

represent the employees, but it also functions as a safeguard for management to have the last say on any negotiations concerning compensation, benefits and working conditions.

Ques 5. Case Study 3-1- Duty of Fair Representation (Page 156)

a. If the court rules in favor of the union, this would be fair to all parties concerned, even the former employees.  To the company, it had reasons of its own why it didn’t rehire the former employees.  It didn’t show discrimination since those unhired former workers may not be fit for the job anymore.  As to the union, it is only fair that it won’t be forced to represent people who aren’t employees of the company.  Without employment, the union will overreach itself.  To the former employees, the ruling may not be favorable to them but like in any other case, one party

loses while the other one winds.  They could file an appeal or accept the decision.

b. I believe it’s not entirely unreasonable for the laid-off employees to expect help from the union.  Despite the eleven years that passed, these employees felt that since they’re members of the union, they’re still entitled to some protection.  Habit may have drove these former

employees to expect that much from the union.

c. If the company and the union have predicted that more than a decade would pass before new opportunities would open up, they would probably have included the “future employment”

clause, but it would be modified in such a manner that there won’t be any ambiguity to its interpretation.  The clause would include a clarifying statement that wouldn’t obliged the union nor the company to accommodate every one of the laid off employees.

Ques 6. Case Study 3-2- Employer’s Unlawful Assistance to Union (Page 156)

a. The company’s reasons for continuing to recognize the existing union may be true.  It’s also true that since the runoff has not happened yet, then the bargaining agreement with OWLS II still holds.  In another line of thinking, the company continues to support the old union since it doesn’t like the OPEIU Local 42 and what they represent.  Under the CBA with OWLS II, the employer is comfortable with the terms and it doesn’t want to renegotiate with a different

union who could demand for more.

b. Yes, OWLS II should be allowed to represent its members since without it, the members are deprived of representation from its union.

c. The company’s support for OWLS II would tell the employees that it doesn’t like another union in the company.  Many employees might think that there would be difficulties in future negotiations because of this.  As a result, the OPEIU may not get a majority in the runoff.

Ques 7. Case Study 4-2- Unfair Labor Practice by a Union (Page 202)

a. The election results should be set aside and call for another in the company.  Those who committed harassments to other employees should be identified and prevented from voting in the election.  The union would of course say that those people did not act on its behalf but the acts were dangerous and caused employees to fear them and the union.  The union, instead of being the employees’ haven, has become a cause of fear to some.  As a result of their fear, they might have given in to harassment and voted for the union to stay.

b. First, the union officials should identify those members who committed the harassing acts to other employees.  The union, if it’s truly intent on stopping their unruly members, should expel them from the organization if they commit another intimidating act.  While these members only

want the union to stay, their way of doing it is unlawful.

c. Racial issues have always been sensitive.  The war ended many years ago and Japan and America are already in good terms.  It was unfortunate that a union official has to make it an issue.  Because of this, the union is categorizing its employer as an enemy instead of its partner.  Since the two parties do not see eye to eye, it would be best that a new union should come in.  A union that does not make an enemy of its employer.

Ques 8. Case Study 5-1- Surface Bargaining (Page 260)

a. Based on the company’s proposal, it would appear that it’s not bargaining on good faith.  It does not want to empower the union to represent its members in the truest sense.  For one, the union can’t negotiate on many things like wages, employee discharges, and lay offs.  In effect, the company only allows the union to exist but without any rights.

b. The “in good-faith” issue is best determined by looking at Wages and the Management Rights proposals.  These two proposal would tell us that management is not prepared to meet the union halfway.  Because of this and the other provisions in the company’s proposal, the union is right in

claiming that the company is only surface bargaining.

c. Principled negotiation can be applied to this case by focusing on interests and dealing with them separately; by inventing options that would benefit both sides; and by creating an objective criteria.  By talking about interests, both sides would be able to determine which things are really needed or simply wanted by the employees.  Once the needs are determined, both parties can then proceed to creating options that are favorable to both.  It’s also important to set the ground rules on how to objectively decide on an interest.  Having a defined criteria will make the negotiation process simpler.

Ques 9. Case Study 5-2- Surface Bargaining (Pages 261)

a. No, it’s not always a show of bad faith when a company begins a negotiation with a wage reduction proposal.  This will happen when the company is having a problem meeting the same wages.  So long as the company supports its proposal with financial data, then, the proposal is not a symptom of bad faith.  In case it was the first CBA negotiation, it still doesn’t show that a company is negotiating in bad if it lays the wage proposal at the start, so long as it has a valid reason for doing so.

b. Yes, the company committed an unfair labor practice by withholding financial information from the union.  Since a high wage reduction is proposed, it has to be substantiated by financial figures.  The company does not want to show its financial statements since it would tell the union that there’s no reason why wages would be lowered.

c. The company is engaged in surface bargaining since it came to the negotiating table with no intention of meeting the union halfway.  It presented a proposal that it knows will not be acceptable to the union members so that negotiations will stall and it can use the opportunity to hire other employees.  The union, on the other hand, is not surface bargaining.  It will not budge from its position because the company has not provided it with facts relating to the reduction proposal.  The union has to be sure that the company will suffer losses if it is forced to pay higher wages.  Without the financial data, the union won’t be convinced that a reduction is necessary.

Ques 10. Case Study 6-2- Incentive Pay (Page 316)

a. No.  The agreement did not say anything about the employer having the right to eliminate the incentive.  Instead, the agreement specifically stated that should changes occur, the employer can only modify the incentive rate in accordance with the changes.

b. Under the collective bargaining agreement, the affected employees have a legitimate grievance claim against the company.  Despite the changes in the department, the remaining employees are still entitled to the incentive rate.

c. If I were the arbitrator, I wouldn’t allow the company to eliminate the incentive pay because it wouldn’t be in accordance with the terms of the collective bargaining agreement.  Instead, I would ask the company to modify the incentive rate, subject to negotiation with the union.

References

Legal Requirements for Collective Bargaining.  Retrieved June 27, 2008, from

http://www.econ.iastate.edu/classes/econ322/orazem/Bargaining%20Rules.ppt

Principled Negotiation. International Online Training Program on Intractable Conflict,

University of Colorado.  Retrieved June 27, 2008, from

http://www.colorado.edu/conflict/peace/treatment/pricneg.htm

Unfair Labor Practices.  Federal Labor Relations Authority.  Retrieved June 27, 2008, from

http://www.flra.gov/procedure/filing/ulp.html

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