Labor Law And National Labor Relations - Essay Example

Labor Law And National Labor Relations Introduction The National Labor Relations Act (NLRA) which was enacted in the year 1935 forms the basic stature on labor relations in the United States. The act has got provisions that govern the way employers relate with their employees and their labor organizations in the private sector. If an employer is covered by the Act, then its entire staff has the right to organize itself into a trade union and to engage in collective bargaining over the wages and salaries, hours, and working conditions, through a representative elected by the employees and from among the employees (CLEAR, n.d.). The same workers have the legal right to engage in strikes, picketing and other concerted activities for their mutual aid and protection. The National Labor Relations Act 1935 prohibits any employer from violating any of the stated rights and privileges entitled to the employees. The Act provides for the establishment of the National Labor Relations Board to interpret and implement the provisions of the NLRA. It is a federal agency vested with the powers to enforce the act that has made greater strides in broadening the definition of the key words in the Act, namely protected and concerted activity. Concerted activity is any activity by individual workers who are united in effort to further a common concern in regard to any term or condition of employment. One of the key determinants of concernment of a worker’s activity is that the action must be engaged in with or on the authority of other employees, and not in isolation by and on behalf of the employee himself/herself. Therefore, an employee activity or action is not concerted, unless it is engaged in with or on authority of other employees. On the other hand, the Board recognizes the issue of protected concerted activity. 1 This is the protection of the employees from discharge or discrimination as a result of their participation in protected, concerted activities which are not related in any way to the union or collective bargaining.2 In Washington Aluminum case, concerted activity for mutual assistance came out clearly as the seven employees grouped together to protest against the prevailing cold weather in the workplace. The protesting employees were not unionized, nor did they hold any future intentions of forming a union. Their main desire was to have the employer afford them and their fellow workers good working conditions. In this case, the Board was of the opinion that even one employee acting solely can satisfy the concerted requirement. It further held that the striking workers had the right to express their dissatisfaction with the working conditions provided by the employer. The board considers this as one of the precedents in resolving the matter of Shirelle and the five dismissed workers. Issues to be resolved Shirelle Company has been in operation since 1983, a cool 27 years without a trade union for the employees. They have a good number of workers who are in charge of various departments within the company. However, the owners, Olga and Gregor Flambe, who are jointly responsible for the labor relations and personnel have not yet registered their employees in any trade union. The company which has been operating for a long time with no trade union for its 40 plus staff has not given the employee the freedom to exercise their rights. The company instead has taken the mandate of resolving labor related disputes using its own mechanisms. This is in contravention of NLRA section 8 (a) 2 where the issue of representation of workers issues is placed under employee led unions, and not company dominated labor organizations. In the Electromation case, the electric company had requested the employees to form committees to deal with their concerns, knowing very well that the committees dominated by the employer do are in contravention of the National Labor Relations Act. In the Electromation, Inc v. NLRB, 35 1148 [1994], the court found out that the initial creation, the structure, and the administration was considerably under the control of the company. The court also determined that the committees were labor organizations in their own rights and, thus, the company contravened National Labor Relations Act, particularly section 8 (a) (2) through its domination in the running of the committees’ affairs. This violation the Board found out rested on the fact that the company continued to support the maintenance of the committees after the union demanded recognition. The compositions of the committees were not in line with labor laws, as they constituted of volunteers selected by the management, with a considerable management presence. The NLRB established that the five committees in at Electromation Inc. operated as the equivalent of a union committee. However, the management domination of these committees was dominant, drawing in the question of the legal implication of employers’ involvement committees. The committees were formed by the management, the representatives were and picked by the management, and the issues discussed were not entirely for the benefit of the employees (for instance, none of the five committees discussed the issue of safety and health of the workers). This case is relevant in the current matter as the board considers the issue of Shirelle Company failure to recognize the representation of its staff through the union. The company has been in operation for over 27 years with no trade union. This is taken to imply that the two owners who also run the restaurant on a daily basis must have discouraged the workers from forming labor organization. For instance, on June 6th when Marcia Woods was distributing authorization cards to Jose Lupe and Daniel Antebi, Gregor Flambes stumbled across one of the cards lying on the floor. According to one Lupe, he snarled at him that he was free to walk away if he felt the working conditions were not fit for him. This statement is a clear indication of the state in which the employer disregards the issue of union. This statement is one of the evidence which the union and the sacked workers have placed against Shirelle Company in the suit. The Board has a mandate to explore whether this accrue to violation of section 7 and 8 of the NLRA. However, despite the fact that Shirelle Company has operated for quite a long time with no Union for its employees, this does not mean that the staff are out of the provisions of the National Labor Relations Act. The Act was meant for all workers regardless of whether they are unionized or not. This matter was clearly put in the limelight in the National Labor Relations v. Aluminum case. In this case, it was held that the Act was not discriminatory of workers who had no any known trade union, and were accorded equal protection just like their unionized counterparts. Marcia Woods has been employed in the company for only four years as compared to some other employees who have been working since the company was started. She seems to understand her rights well when she mobilizes some of the employees and then organizes to meet one of the staffs in charge of a trade union. After meeting with him, they signed the union membership cards and they took a stack of authorization cards with them for the rest of the employees in the company. The authorization cards gave them a right to explain to their colleagues about the trade union. See, NLRB v. Gissel Packing CO. 395 U.S. 575 [1969], where the landmark ruling by the Supreme Court approved the use of authorization cards by the union/workers to establish their representative status. This means that Marcia Woods, Clara Reyes and Patricia Perkins had authority from Local 8, Hotel Employees and Restaurant Employees Union, AFL-CIO to organize the shop. The meeting that took place on the 9th of June, and attended by 25 workers out of the total workforce of 40 selected the union to represent the shop on labor relations matters. The union now had the employees mandate to demand recognition by the employer, Shirelle Company.3 On the same day, they exercised their constitutional rights by voting to strike to demand fair treatment by the employer.4 These events are in line the provisions of the NLRA which the National Labor Relations Board is mandated to interpret and enforce. The issues which were raised by the striking workers can be classified under the mandatory topic. According to various rulings made by the Supreme Court in United States, the NLRA allows employees to bargain over such topics regarding the relationship between the worker and the employer. It further stipulates that the bargaining may take the form of strikes, lockouts and other economic pressure tactics concerning them. The issue that the board needs to resolve concerns the infringement of the rights of the employees by Shirelle’s Company, especially on section 8(a) (1) and (3) of the National Labor Relations Act. Pursuant to the same act, section 8, there is the issue of unfair labor practices by the employer towards the employees. For instance the company violated section 8 (1) by interfering with , trying to restrain and coerce employees in the exercise of their rights as rightfully guaranteed in section 7 of the National Labor Relations Act of 1935. This started with the issue of Marcia Woods who was a leading crusader for unionization of the employees. It was after Olga Flambe spotted her and her colleague coming out of the office of AFL-CIO, that the issue of her hair came up. The following day, the supervisor, Ann Fagioli informed Woods that she need to keep her hair up and off her shoulders. One would wonder why the warning to Ms. Woods occurred immediately after she stated engaging in labor related activities. Of particular interest to the Board is that the issue with her hair cropped up a day after she and a colleagues met the local AFL-CIO official, and apparently their boss spotted them coming out of the office. The issue that the Board seeks to determine is whether this was an issue of an attempt to coerce and intimidate her from pushing on with her quest to have the employees of Shirley Company placed under an independent labor organization. The Board also takes note of a statement made by Gregor Flambe to one of the cooks, Mr. John Lupe, implying that the company was not ready to tolerate any worker who warmed up to the idea of a union. These acts by the employer amounts to unfair labor practices and are in contravention of the NLRA. The warning informed her that after careful investigation by Flambe, it was determined that Woods had violated NYC health department rules, as well as Shirelle’ work rules, by wearing her hair improperly on June 5. The warning also charged Woods with insubordination because she did not put up her hair immediately when told do so. (Woods received a similar written warning approximately 6 months ago for not wearing her hair up). Unlike the first warning, the current warning also stated that any further disobedience of the Company’s rules would result in her discharge. It is undisputed that NYC Health regulations (and Shirelle’s work rules) require that food service personnel wear their hair up, off the shoulders, and that Shirelle’s has been fined in the past for violating this rule. Whereas it is true that NYC health department rules, as well as those of the company were violated by Woods, a point of interest for the Board is that she had received a similar warning six months ago, although it had less severe implications. The new drive to sack her should she repeat the same mistake can be termed as an act of coercion for her active engagement with the rights of the workers. This is supported by the act of dismissing 25 workers owing to a picketing on June 16. The company hired replacements for the dismissed workers, and even though it changed its stand on July 7, it did so but went ahead and permanently replaced 5 of the senior most workers. Apparently, the five were the most vocal in labor relation issues.5 The Board recognizes that the five workers are allowed by the National Labor Relations Act to engage in protests to demand for their economic and work related rights. They are further justified to act on behalf of others by the concerted provision. The five, and Ms. Woods in particular, have proved in their acts that their behaviors reflect more than personal complaints. The Board should be guided by the ruling made by the Supreme Court in the NLRB V. Washington Aluminum Case, that the NLRA applies to both employees in unions and those not in them. In the same ruling, concerted activities of employees, for the purposes of collective bargaining, are well guaranteed and protected in section 7 of the Act. By subjecting the employee to discrimination on the basis of retaliation, like in the case of Shirelle against Woods and her colleagues, subjects the employer to liability under section 8 (a) (3) of the National Labor Relations Act, on the ground of unfair labor practice. Having found out that the Company engaged in certain activities that amounts to unfair labor practices, the Board shall order it to cease and desist therefrom, and ensure that it takes certain affirmative action designed to seek compliance to the provisions of the National Labor Relations Act. I recommend that the company desists from these unfair labor practices and reinstates the five dismissed workers, as their actions are guaranteed for in the NLRA. The company should with immediate effect commence the process of collective bargaining with the employees through their selected representatives to solve out the labor issues. The other issue is whether the employer violated the NLRA by refusing to bargain with the striking workers. One of the core objectives of the NLRA is to safeguard the ability of employees to organize themselves into a union without any hindrance from any quarter. This is enshrined in one of the three aspects of the Act, the exclusivity principle. This is a basic feature of collective bargaining where the trade union is given the mandate to bargain with the employer on behalf of the employees (CLEAR, n.d.). The bargaining concerns mainly staff welfare aimed at making the working conditions at the workplace better, and having a satisfied workforce out of good treatment. When the employees staged the strike which began on June 10, the company showed no signs of sitting on the bargaining table with the employees through their representatives. The statute acts as the legal guide on such cases. Instead of resulting to collective bargaining, the company went ahead and sacked five of the striking employees, a clear violation of the National Labor and Relations Act of 1935, secs. 7(d), 8, 9. This is against the spirit of the NLRA which represents one of the landmarks of federal legislation. The system set up by the Act was meant to minimize government involvement in labor related issues. The Board recognizes the fact that NLRA was supposed to offer the opportunity for the employer and the employee to sit down and solve issues that were affecting them without having to necessarily result to legal redress. In this regard, Shirelle Company ought to have utilized the benefit conferred by NLRA and engage the workers through the collective bargaining process. In particular, the employer violated section7 (d) of the National Labor and Relations Act of 1935 which clearly states that both the employer and the employees have an obligation to engage in collective bargaining on matters pertaining to labor relations, especially touching on wages, working hours and working conditions (U.S. Department of Labor, n.d.). During the process of collective bargaining, both parties must be guided by the doctrine of utmost good faith with respect to issues under deliberation (National Labor Relations Board, 2011; CLEAR, n.d.). In regard to the above issue, the National Labor Relations Board has a mandate to seek compliance of sections 7 and 8, especially on collective bargaining. The board is of the opinion that Shirelle Company which is covered under the NLRA, violated the Act by refusing to bargain with the striking workers. The Board needs to solve the issue of Section 8(b) (4) charge which was filed by the mall owner on July 12. The claimant alleged that the handbillling violated section 8(b) (4) on expression of views. The section holds that the employees are entitled to the freedom of expression without threat of punishment, force or even promise of benefit. These views are supposed to be expressed in a fair manner that will not hurt the interests of the concerned parties.6 For instance, sub-section b of the National Labor and Relations Act, 1935, holds that the views, arguments, opinion or dissemination of information by the employees may be written, printed, in graphic, or visual. The information should not include any part that equates to unfair labor practices under any of the provisions of the NLRA Act. In line with this provision, the striking union members distributed hand bills at the entrance of the enclosed mall and in both customers and employee paring areas. The mall named ‘Soups R Us’ had been a great buyer of soup from Shirelle restaurant, each carefully prepared under the direction of Gregor Flambe according to secret recipes, which he only knew. The hand bills contained messages that were in view of the Board representing the grievances of the striking employees. Their target was legally chosen since ‘Soups R Us’ is a partner with their company. The manner in which the hand billing took place was in line with the provisions of the NLRA, as it was done in an orderly and peaceful manner. This assertion is supported by a judgment reached at California Supreme Court in 1979 in Robins v. Pruney Shopping Centre, where it was held that employees protesting labor related disputes can exercise their right to freedom of speech and petition in public forums. Consequently, the same act was held in a ruling made by the Sacramento County Superior Court in Ralphs Grocery Co. v United Food and Commercial Workers Union Local 8. The union agents had peacefully staged a picket for five days a week, eight hours per day on the sidewalk apron of Ralph store, which is a private property. They walked back and forth in front of the store’s doors, waving placards and handing out flyers. This was meant to discourage people from shopping in the shop on the ground that its employees were not unionized (a similar style of picketing as in Shirelle employees case). The picketers ignored Ralph request to relocate to a distance away from the store. This went on for almost nine months prompting Ralph to file a complaint for trespass against the union in Sacramento County Superior Court. The grocery shops the capability to request an injunction against the protesters who were trespassing in front of its stores in the name of picketing. He further sough an injunctive relief to bar the picketers from using the store’s front sidewalk as a forum t express their views. The union, on the other hand, objected to this attempt by Ralph under the Moscone Act and Section 1138 of the labor Code. The Moscone Act denies courts the authority to issue any restraining order or injunction barring specified conduct (like peaceful picketing) relating to labor dispute and section 1138.1 prohibits a court from issuing a preliminary or permanent injunction in a case that is labor related except in the most limited circumstances. Going by these two statutes, then, the workers in Sherillle Company had every right as found in the law to picket. They did so in peaceful manner and, since this is a labor related issue, the Board might be tied by these two statutes not to grant an injunctive relief. Conclusion The board seeks compliance to provisions of NLRA, especially on sections 7 and 8. It orders Shirelle Company to reinstate the five dismissed workers, start collective bargaining process with the workers and recognize the union as the legal representative body of the employees. The National Labor Relations Act of 1935 protects the welfare and interests of both the unionized and the non-unionized workers. The Board, therefore, holds that the employees in Shirelle Company are protected by the Act and the company has no option but to comply with the relevant provisions concerning staff welfare. References Center for Labor Education & Research (CLEAR), n.d. Collective Bargaining FAQ’s. Pearl City: Author. Electromation, Inc v. NLRB. 35 1148 [1994]. National Labor Relations Board. 2011. National Labor Relations Act. Viewed 19 December 2011, http://www.nlrb.gov/ National Labor Relations Board v. Washington Aluminum Co. 370 U.S. 9 [1962]. NLRB v. Gissel Packing CO. 395 U.S. 575 [1969]. Teamsters V. National Labor Relations Board. 365 U.S. 557 [1961]. U.S. Department of Labor, n.d. Employees Rights. Viewed 20 December 2011. http://www.dol.gov/olms/regs/.../EmployeeRightsPoster11x17_Final.pdf. Read More