The National Labor Relations Board - Admission/Application Essay Example

NLBR v. Wal-Mart Stores United s Court of Appeals, Eighth Circuit Case No.___ of the Judge, Court I. Background In November Wal-Mart employees go on a nation-wide strike. It starts off as a series of strikes in May and June which later spread across many Wal-Mart stores across the country in November. On the November, 22 2012, Wal-Mart employees went on strike in protest of retailer’s and workers benefits (Harris 1). The company decides to retaliate against the employees move issuing them disciplinary threats. This came after Wal-Mart’s spokesperson, Brooke Buchanan made threatening comments on the television regarding the disciplinary measures the company would take for any employers who would desist from work in November before the official commencement of the strike (Harris 2). However, the NLBR issued a stern warning to Wal-Mart and the legal action it would take if the company continued to frustrate the workers who engaged in a strike for low wages. Wal-Mart in defending itself justified its course of action as a way of defending the company citing the employee strike as illegal owing to the fact that it provided better jobs and unparalleled work opportunities for its workers (Harris 2). The company believed that its course of action was justified and legal because it followed the outlined procedural processes and was ready to do everything possible to defend itself. However, it should be noted that Wal-Mart has no work unions, and it is believed that the strike was well-guided by internet advocacy groups that specialize in short-term sporadic strikes and protests (Banjo, Trotman 1). Eventually, NLBR issued a complaint against the company for not settling out the issue with the employees who went on strike (Banjo, Trotman 3). II. Discussion Workers are entitled to their right to strike; whether part of a union or not. However, the nature of the strike and the ensuing twists between NLBR board and Wal-Mart do not take the shape of traditional strikes (Kolker para.1). It is important to point out that whether the walkouts carried out by the company’s employees are well elaborated in the NLBR Act. A case of employees not forming part of a larger labor union taking it to the streets to protests presents a myriad of challenges and for both the NLBR and employers who have to confront it (Kolker para.3). Wal-Mart can be thought of taking advantage of the recession period to hire-replacement employees, a mechanism that most employers have been using to discourage their employees from striking. Wal-Mart’s employee strike falls under the economic striking employees and, therefore, their employer retains the right of replacing them (Kolker para.3). If that clause in the NLBR Act is considered, then the company will justify in its allegations. While defending itself, the company had stated that it had previously engaged employees in signing an agreement about being absent from work (Kolker para.3). The employees, while participating in the workout strike, had violated that agreement by staying away from work. a). Legal Concepts and Key Aspects The National Labor Relations Board (NLRB), section 7 of the NLBR Act states “Employees shall have the right. . . to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Every employee is entitled to better working conditions as stipulated by the labor laws in the United States of America. The employee has the right to demand better wages and working conditions, and if these fundamental aspects are not met, then the employee has an articulate right to participate in a labor strike. b). Scope and limitation to the law A look at section 13 of the NLBR Act continues to reveal more information about employees’ right to strike. It states that: “Nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right.” (NLBR para.1). The clause not only spells out the constitutional right of employees to strike, but also outlines the limitations within which the strike should take place. Therefore, section 13 gives employees the right to strike by articulating the lawful conditions to be met to make the strike legitimate. Any attempt of going against the stipulated conditions makes the strike unlawful. For better understanding, the NLBR classifies and places the following limitations on strikes as shown below; c). Lawful and unlawful strikes What makes a strike lawful depends on various factors such as the timing, object, purpose and even on the conduct of the striking employees. However, it is worthwhile noting that issues such as timing, object, purpose and conduct of the employees during a strike are not always easy to decide as they always seem. Under such conditions, the NLBR is left to handle and decide such issues (NLBR para.2). It is always advisable for employees to take necessary precautions as they proceed with the strike given the adverse consequences that can result. The fate of employees on strike and struck employers can be tedious and following reinstatement and payback. d). Strikes involving lawful objects Employees who strike for lawful objects fall into two broad categories: economic strikers and unfair labor strikers. Although both are entitled to their rights to strike, the unfair labor strikers have greater rights to reinstatement than economic strikers (NLBR para.2). e). Economic strikes defined Striking employees falling within this group retain their status as employees and, therefore, cannot be discharged but employers retain the right of replacing them. This happens when the employer has already hired bona fide employees to fill the vacant positions (NLBR para.3). Under such conditions, the economic striking employees applying unconditionally to get back to work are not entitled to reinstatement. In the event that the economic striking employees do not secure substantially equivalent employment, they are fully entitled to be recalled for the jobs they apply for (NLBR para.3). However, this will only happen if the union representatives have made such unconditional bargaining request for their reinstatement. f). Unfair labor practice strikers Unfair labor practice strikers who can neither be replaced or permanently replaced in the event of a strike. Despite their misdemeanor or absenteeism in the course of the strike, such employees will not lose their jobs (NLBR para.4). Employees previously employed to do their job will have to be discharged to give room for their reinstatement. In the event that the unfair labor practice strikers and economic strikers have been unlawfully denied reinstatement by their employer despite their unconditional request, the NLBR may award the strikers pay back from the time they have been reinstated. g). Strikes can be unlawful because of a purpose Section 8(b) (4) of the NLBR Act prohibits strikes on certain objects that may not be necessary unlawful in they were to be achieved by other means (NLBR para.6). Therefore, employees who participate are discharged and not entitled to reinstatement by all means. h). Strikes can be unlawful because of timing A strike that violates a no-strike provision of a contract is not protected by the law and therefore, employers are entitled to take any disciplinary action against such workers unless it the strike was in protest of unfair labor practices of the workplace (NLBR para.6). Some strikes are not considered strikes so long as they do not violate the no-strike provision. Such include walkouts from detrimental and health threatening conditions at the workplace. i). Same strikes at the end of the contract period Section 8(d) provides that, in the event the employees seek to strike in addressing their grievances, in order to terminate or change an existing contract, such a strike must comply with certain conditions to be met (NLBR para.7). If the conditions stipulated in the contract are not met, such a strike is considered illegal, and the employees are liable to face the disciplinary action of the employer (NLBR para.7). However, if the strike in due to the employer’s unfair labor practice, the strike is considered an unfair labor practice strike even if it does not adhere to the contractual procedure. j). A strike can be unlawful because of the misconduct of the employees A strike is considered unlawful if the employees misbehave in the course of the strike. Employees who participate in violent activities such as attacking the staff members of the organization, picketing and attacking members who refuse to participate in the strike. Such striking employees lose their economic or unfair labor practice status and risk not being reinstated to their former jobs. III. Discussion The verdict of the judge was in favor of NLBR. The court’s ruling considered the fact that Wal-Mart equated workers’ movement out of the workplace as an unauthorized leave of absence from work. No matter how much the country’s largest private employer insisted that it was within its mandate to discipline the workers who we were given threats and fired from work, it did violate section 7 of the NLBR Act that guarantees employees, whether part of a union or not, a right to peacefully demonstrate for poor working conditions and wages. Conclusion It is evident that the new form of sporadic strikes taking shape in the form of workplace walkout lasting for short periods used by employees not forming part of labor unions present are becoming an issue of concern. Given the ambiguities surrounding the laws governing such strikes, it took the judge much time to arrive at the final conclusive verdict in favor of NLBR. Wal-Mart lodged its complaint to appeal unsatisfied with the judgment. Works cited Harris, Elizabeth. Labor Panel Finds Illegal Punishments at Wal-Mart. New York Times. Retrieved on November 22, 2014. Web. Kolker, Carlyn. U.S. “Labor Board may issue compliant against Wal-Mart on strikes”. Reuters. Retrieved on November 22, 2014. Web. NLBR “The Right to Strike”. Nlbr. Retrieved on November 22, 2014. Web. Trottman Melanie and Banjo Shelly. “Wal-Mart Challenges Labor Board’s Complaint”. Wsj. Retrieved on November 22, 2014. Web. Read More