FINAL EXAM
Please answer each of the following three questions. If you use normal size font and page margins, each answer should be between 2-5 pages long. Don?t turn your answers in as three separate submissions ? write your answers to all three questions on one document, and submit that one document as your final.
1) If we look at the broad sweep of American labor law in history, it seems to fit into three periods. First, prior to the 1930s (i.e., prior to Norris-LaGuardia anti-injunction Act and the National Labor Relations Act or NLRA) was a period of hostility toward unions and worker organizations. Second, the period from 1935 to 1947 (NLRA prior to Taft-Hartley) was a period of encouragement of unions or worker organizations. Finally, the period from 1947 to the present (Taft-Hartley, and to some degree Landrum-Griffin) is a period that turns back toward the earliest period, with public policy (both new laws and reinterpretations of existing law) turning ever more toward curbing and weakening organized labor.
Which if any of these periods ?got it right?? Whatever answer you give, be sure to give explanations and arguments for your position, and show what is wrong with the other two periods.
2) The conduct of NLRB elections to determine whether a majority of employees prefer a union is crucial to the outcome. Some would argue that the employer should stay entirely out of the matter, or else the decision is likely to be at least somewhat (and perhaps greatly) coerced, due to the inherent nature of employer power over employees. At least since the passage of Taft-Hartley (1947) and actually before that, the courts have held the opposite view: under the ?employer free speech? view, employers are allowed to do a number of things to discourage employees from voting to create a union.
(a) Explain what types of employer conduct are allowable, and give examples
(b) Explain what types of employer conduct are not allowed, and give examples.
(c) Then argue one of 3 positions: (i) employers are given too much freedom to campaign against the union, leading to a coercive atmosphere; (ii) employers are given about the right amount of freedom; or (iii) employers are not given enough freedom. (Whatever position you choose, justify it with an argument, using illustrations as appropriate.)
3) The following is a situation similar to what often occurs in real life. Read it over carefully, and determine what legal issues arise out of it.
SITUATION:
John, Maria, Arcine, Yves, Juan, and Dominique all work at a nursing home in south Florida. They have decided to try to unionize the place with a local union. As soon as the company owning the nursing home hears of the union organizing drive, it hires a professional union-avoidance firm and begins a campaign to oppose the union.
Maria and Arcine, outspoken union supporters, are evaluated as ?unsatisfactory? in their work performance 2 weeks after the drive becomes known. Their previous evaluations have always been satisfactory or better. (Maria has worked there 2 years; Arcine for 8 months.) Because of their poor evaluations, both are reassigned to work which is isolated from the rest of the workforce; it consists primarily of cleaning toilets and washing floors.
John, another strong union supporter, and one of the few men working at the place (12 out of 125) is followed constantly by his supervisor, who criticizes his performance. The supervisor never mentions the union. Feeling a rising tension, on the eighth day of constant criticism, John tells his supervisor, ?I can?t take this anymore.? The supervisor suggests that he go home for the day. He does so, and the next day the company fires him for leaving work.
The company holds numerous ?captive audience? meetings, where the employees are treated to a barrage of anti-union speeches. They are told that unions are immoral, destroying the economy, a danger to job security because they drive companies out of business, and prone to strikes and violence. The patients are told that? the workers are ?disloyal? and are preparing to abandon them in a strike, which may turn violent. For this reason, many of the frightened older patients are pleading with the workers not to unionize, and if a worker tries to explain why they want a union (including better patient care and more staffing), they are threatened with dismissal for talking union matters on the job. One worker has been fired for this, and three others have been suspended for one week for the same reason.
Arcine, during a captive audience meeting 20 hours before the union election, tries to respond to the charge that unions are only trying to take the member?s money through dues, and is told to shut up. She objects that this is unfair; people should hear both sides of the story. She is promptly fired on the spot and escorted out of the room by a uniformed security guard in front of the other workers.
Anonymous leaflets appear in the employees? locker room asserting that the union preys upon immigrants and really only cares about native white workers. It claims that the union was sued by minority workers in another (unspecified) location at some (unspecified) point in the past, and was ultimately decertified by the unhappy employees it was supposed to represent. The leaflet ends: VOTE NO! PROTECT YOURSELF FROM THESE WHITE NORTHERN LEECHES! FOR THE SAKE OF YOUR FAMILY, VOTE NO! (Two of the three union organizers in this organizing drive are whites from the union?s national headquarters in the north; the third is a Haitian American living in the Miami area.)
At least two letters per week are sent to the workers? homes by the company?s human resources director. Each has a theme: one is GET THE FACTS BEFORE YOU SIGN ANYTHING! YOU WOULDN?T SIGN A BLANK CHECK, WOULD YOU? SIGNING A UNION AUTHORIZATION CARD IS LIKE SIGNING A BLANK CHECK! Another is: There is no guarantee that the union can win you anything. You might actually lose some things you have now. Another is included with the workers? paychecks. It states that ?union peddlers? only want your dues. The paychecks are smaller than the usual amount. In the same envelope is a second check with the lost amount of money, explaining that this is what the employee likely would have lost to union dues, had they been represented by the union. Yet another shows pictures of wounded people and broken windshields, claiming that these were the result of a Teamsters Union strike at a different nursing home a few years ago.
Yves becomes frightened by the new, ?chilled? atmosphere at work, and decides he doesn?t want a union, since unions mean conflict and danger. He goes to his supervisor and volunteers to sit in on union meetings to report back on what the union is up to, and who is supporting the union. His supervisor states, ?I can?t tell you to do that, but if you would, we?d sure appreciate it. I can see you?re a loyal employee, and you should have a bright future with our company if we can just keep this union out.?
Juan initially supports the union, but begins to waver after the anti-union campaign begins. Seeing that he is wavering, one of the union organizers tells him that the union can guarantee that the employer will give them a health insurance plan (something they now lack) after the union wins the election. The organizer points to other union nursing homes where workers have health insurance coverage, and says, ?I guarantee you that they?ll give it to you here too if we win.? This is important to Juan, because he has five children and his wife works as a domestic house cleaner, a job without health insurance benefits. He decides this is important enough to support the union, despite his worries about losing his job and concerns about working in a high-conflict environment.
Before the election, the employer files an objection to the proposed bargaining unit, insisting that it should include the six clerical workers in the front office. Two months later, after it has won on that issue, it files another objection, now claiming that the salesman who advertises the home should also be included. A month and a half later, after losing on that issue, it files a ULP charge against the union, delaying the election again. (The charge is that the union is coercing anti-union workers because during a home house visit one of the union supporters allegedly said, ?If you vote against the union, you?ll end up worse off! You?ll pay the consequences!?) The NLRB rejects that ULP charge.
Finally, six months later, an NLRB-sponsored election is held. For the final week, the employer has put up a sign on the wall of the employee wash room. It states: WEAR THE UNION LABEL: UNEMPLOYED. The union, although it originally had signed authorization cards from 68% of the employees, wins the election by only one vote, 54-53. The employer immediately files an objection, stating that the union conducted its role as observer at the election site in an intimidating manner. The charge is thrown out by the NLRB when they produce no evidence, and the union is certified.
In the following months, the negotiations for a union contract go nowhere. The employer refuses to grant any improvements above the workers? present conditions, and instead proposes worsening of those conditions on some fronts. It refuses to grant a grievance procedure that ends in arbitration by a neutral arbitrator, insisting on the right to make the final decision in discipline cases unilaterally. It also refuses to consider ?seniority? as a basis for promotions and layoffs. During these months, due to frustration and pessimism that anything will be achieved, the union loses 18 of its 30 strongest supporters. Most quit and move on to other jobs. New hires replacing them appear scared and won?t have any contact with the union.
After nine months of no progress in negotiations, the company expresses skepticism that the union really represents a majority of the workers. Therefore it breaks off all negotiations, arguing that the union is only a few malcontents, not the majority. The union is unable to get more than about eight workers to union meetings at this point.
After 12 months of fruitless ?negotiations? anti-union employees circulate a petition to decertify the union. They obtain signatures from 52% of the employees, and a decertification election is scheduled.
APPLY THE LAW TO THE ABOVE SITUATION, AND LOCATE ALL THE POINTS WHERE SOMETHING ILLEGAL (BY EITHER SIDE) MIGHT POSSIBLY HAVE OCCURRED.
(a) List each instance of possibly illegal behavior (ignore the ones where the text tells you that the NLRB already has ruled on it).
(b) Very briefly (3 or 4 sentences) for each instance, explain which facts could make it illegal, and which would make it legal.
(c) Looking at all these instances, from what you know after reading the case, which ones do you think the NLRB would likely actually find illegal? List which ones, if any.
(d) Ignoring the legality of the instances, explain which ones (if any) of them you think prevented a fair election or bargaining process (if you think it is none, state so, and give your reasons why ? the question is not intended to direct you to the belief that anything was unfair if your general impression is that everything was OK, but it IS intended to get you to state what you find fair or unfair about this case, and why you think so).
(e) If you have any differences between your list of illegal instances and your list of unfair instances, what if any changes would you recommend to labor law to ensure greater fairness? (If you don?t think fairness is relevant, or if you take an entirely different perspective, explain your own viewpoint.)
PLEASE FOLLOW THE INSTRUCTION AS PROFESSOR WANTS AND ANSWER ONE BY ONE. ALSO, USE UNDERSTANDING LABOR LAW AS REFERENCE
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