Charges of Unfair Labor Practices by the Case Study

Excerpt from Case Study :

charges of unfair labor practices by the union, their demand for recognition and bargaining rights, along with counterclaims made by the company. The union held an organizing meeting with janitorial workers of an apartment building and townhouse complex on December 5th. After obtaining signed authorization cards from 6 of 11 employees where one was already a member, a union organizer notified the company, requesting recognition and bargaining rights.

The company's supervisor, Larry Melton initiated a series of inquiries in an attempt to find out which employees had sent for the union organizer and signed authorization for union representation. Melton was fired on December 24 and replaced by Leo Nord. Over the next several weeks leading up to the representational election, the company offered a series of new benefits. On the morning of the election on January 30, Nord told an employee, Cecil Snow, that if the union won the election, the janitors and their helpers would lose the benefit of rent-free and reduced rent apartments. When the union lost the election 6 to 4, they filed charges of unfair labor practices against the company.

The union has the more persuasive legal arguments. According to a statutory overview of the National Labor Relations Act (NLRA) by the American Bar Association (ABA, 2011), the company committed numerous violations of the NLRA. Section 8(a)(1) of the NLRA prohibits an employer from interfering, restraining or coercing employees with respect to their Section 7 rights. The ABA webpage lists the following legal precedents establishing types of prohibited conduct:

Interrogation: Rossmore House, 269 NLRB 1176 (1984). The Board test is: "whether under all of the circumstances the interrogation reasonably tends to restrain, coerce, or interfere with rights guaranteed by the Act" (ABA, 2011). Melton's repeated phones calls to employees at home after hours, his demands to know why he had not been informed about the meeting, his instructions to employees not to sign anything and his threats to George Thompson all meet the test of prohibited conduct in violation of the NLRA.

Promise and grant of benefits: NLRB v. Exchange Parts, 375 U.S. 405 (1964). "The danger inherent in well-timed increases in benefits is the suggestion of a fist inside a velvet glove. The employees are not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged" (ABA, 2011). The company's announcement on or around December 24 of an improved sickness and health benefits program for employees, including maternity benefits for employees and spouses meets the test of prohibited conduct as well.

The company's counter arguments appear specious and without legal merit. Their assertion that management was unaware of Melton's phone calls and repeated questioning of employees is not an adequate defense against charges of his misconduct. Under a legal doctrine referred to as "respondeat superior" (Latin for "Let the superior answer"), an employer is legally responsible for the actions of its employees. This rule applies only if the employee, in this case Melton, is acting within the course and scope of his employment. Clearly Melton was doing his job, carrying out company business and acting on the company's behalf when the prohibited conduct took place (NOLO, 2011).

The statement made by Nord to Snow must be considered a threat. The ABA overview of the NLRA lists threats of reprisal under its examples of prohibited conduct:

NLRB v. Gissel Packing, 395 U.S. 575, 618-619 (1060). "[a] prediction must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control . . .If there is an implication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the statement is no longer a reasonable prediction based on available facts but a threat of retaliation based on representation and coercion, and as such without the protection of the First Amendment" (ABA, 2011).

The test in this case is whether Nord's prediction regarding the company's discontinuing the reduced- and rent-free apartments refers to consequences beyond the company's control; clearly the statements do not meet this test.

According to former NLRB trial attorney James Swann, there is an election process to be followed, therefore the company was not otherwise obligated to accept the union's majority status claim on the basis of the signed authorization cards. Once the union notified the company that the required number of cards had been signed (30% or more), the NLRB was to issue a "Direction of Election," following which specific election arrangements were made and agreed to by both parties (Swann, n.d.). So rather than recognizing the union immediately, the company's only obligation initially was to not interfere in the election process.

Given that the company violated the act, the appropriate remedy is a bargaining order. The company's violations were indeed severe and pervasive, as the union alleges. The company's attempts at threats, intimidation, and coercion could not help but influence all but the most determined employees seeking union representation. Reversion back to the union organizing status on December 5 when the union obtained six signed authorization cards is the only fair and reasonable remedy.

Case 16-1

Castulon Corporation should not establish a drug-testing program. There are at least three valid arguments against such a program. As Beverly Shaver points out, random drug testing in the workplace violates the trust that has been established between Castulon and its employees. When companies make random drug testing a condition of continued employment, employees consider the policy to be an invasion of privacy, no matter how the company tries to whitewash it. If Sterling's argument that all it takes is making employees feel as if they're resolving a troublesome problem is so convincing, one wonders why that campaign was not already in place. The halls, cafeteria, meeting rooms etc. should already be filled with posters advocating safety and employee responsibility; the same message should be featured on the company website, in the employee handbook and so forth. There should already be regular promotions or awards recognizing employees or departments with the best safety or no defect records, competitions between departments and so on. These are all much more positive means of achieving employee involvement in and responsibility for minimizing drug and alcohol abuse, along with the other programs that Shaver suggested.

Along with undermining trust and invasion of privacy issues, drug testing in the workplace may be unconstitutional. According to the LectLaw, many state and federal courts have ruled that testing programs in public workplaces are unconstitutional if they are not based on some kind of individualized suspicions (LectLaw, 2011).

And not to be overlooked is the cost of drug testing. Given the number of applicants and current employees, drug testing and re-testing costs for Castulon could be substantial. Sterling did not present a cost-benefit analysis for his proposed program, so there is no number crunching to argue for or against.

In addition to productivity and morale concerns, there are significant legal challenges that an organization faces when establishing a drug-testing program. The U.S. Constitution does not prohibit drug testing of employees; however the U.S. Supreme Court ruled that requiring employees to produce urine samples constituted a "search" as falling within the constraints established by the Fourth Amendment, which protects citizens against unreasonable searches and seizures. In addition, drug testing may involve violations of the Fifth Amendment, which prohibits denial of life, liberty, or property without due process. Constitutional provisions also guarantee persons a fundamental right to privacy of their person and property (eNotes, 2011).

Sherman, Dickstein, Shapiro, Morin and Oshinsky identify specific legal issues with workplace drug-testing. They note that private-sector employees generally do not have a constitutional right protecting them from tests conducted by private employers as a pre-employment or in-term employment condition. They recommend however that to withstand legal challenges, a company's policies should be carefully drawn. Further, policies should be based on legitimate business considerations, accompanied by reasonable safeguards, and applied in a non-discriminatory manner (Sherman et al., 2011).

An employee's abuse of or addiction to drugs and alcohol may be considered a protected handicap under federal or state law. Therefore Castulon must consider laws that prohibit discrimination against the handicapped. To avoid being sued under laws that prohibit employment discrimination based on an individual's handicap, Castulon would need to be careful to:

Relate any actions taken on account of drug-test results to work-related matters such as overall performance, violations of rules governing intoxication in the workplace and the safety of all employees, including the person tested.

Grant individuals showing signs of alcohol or drug dependence the opportunity to seek and obtain rehabilitative treatment.

Not distinguish between alcohol- and drug-dependent individuals when accommodating these handicaps (Sherman et al., 2011).

Another legal issue for Castulon to be aware of is defamation considerations. To avoid problems with a prospective employer checking references, Castulon may need to…

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