National Labor Relations Board (NLRB)
The NLRB is a government agency with two major responsibilities which include conducting elections for the labor unions representation and conducting investigations and remedying unfair labor practices in the country. The body ensures the protection of the employees' rights by the employers through justice to the employees and also protecting and promoting the collective bargaining power through labor unions. The body was formed in 1935 at the heights of US industrialization where labor unions formed to protect the rights of the employees by the employers. Its mandate was primary to reduce the unfair labor practice and to strengthen the bargaining power of the unions through offering judicial assistance in such cases (Pope, 2012). NLRB offers jurisdiction on labor cases while processing charges concerning the unfair treatment of the employees and the unions. In protecting the rights of the employees, the body is mandated to ensure fair judgment in protecting the employees' interests and benefits about the actions taken by the employers. The ruling of NLRB in the past have been affected by organizational and political issues which include poor organization of the body, lack of quorum and the political decision of the congress and senate where they rejected the president's appointments to the body (Cameron, 2003). However, the body have been restructuring to protect the rights of the employees and unions to enhance better-working conditions where enhancing job security. This paper will focus on the role of NLRB in protecting the benefits and the interests of the employees and the union in the case of A&P stores which were in the process of being declared bankrupt (Pope, 2012). The paper will focus on some of the main consideration in necessitating A&P to be declared bankrupt and the stores to be sold to other investors. Insight in the provisions of the constitution and the reviews of article 1113 of the constitution will give a rationale for the actions necessary in the case of bankruptcy of the employer's company.
In our case study, the bankruptcy claims by A&P supermarket is seen as a major blow to about 15,000 employees who are members of United Food and Commercial Workers (UFCW) union. A&P has been an employer of 30,000 employees and its recent claims of bankruptcy will see half of those employees under the risk of losing their jobs (Hawthorne, 2010). The A&P supermarket is seeking permission to break the UFCW contracts under the bankruptcy claim which would lead to losing of benefits by the employees under the union. Giving the bankruptcy condition, A&P supermarket has resolved to sell 120 stores to ACME Markets, Ahold USA, and Key Food and close 25 stores immediately the Bankruptcy Court Judge has made the ruling. Though some of the buyers claim to have the UFCW union contracts protecting its buyers, the clear transition, and succession of the leadership has not been provided. This has been worsened by the claims that some of the buyers would not be able to pay for the stores completely until later in October. This unclear and unplanned succession and transfer of employees' interests and benefits have been the main problems which NLRB is supposed to settle before the losses may occur (Cameron, 2003). It is also imperative to note that UFCW has been in existence to protect the employees from highly volatile organizations in the cases of bankruptcy. However, A&P administration have been threatening the union as it realized that its position has been deteriorating, and it would face bankruptcy which would, of course, be challenged by the union (Elmer, 2016). The conflict is therefore between the employers, A&P supermarket attempts to cancel the collective bargaining agreement and UFCW eyes at bargaining decent contracts for the affected employees with any of the new owners of the stores who would then be the custodian of employees’ benefits and interests (Hawthorne, 2010). However, the effect of the unions to the failure of A&P has is also to blame for what may befall the employees in this case.
Towards the fall of A&P supermarket and stores, employees were affiliated with not less than 12 unions which have ‘bumping rights' and claimed for the application of these rights for the welfare of their employees. This means that as A&P supermarkets tried to adjust its strategies after the first filing of the bankruptcy, it was not able to cut off the wages and hence continued to use much of its income on the wages and benefits (Liebman, 2007). Bumping rights provide that senior employees who risk losing their jobs during reduction of the workforce can bump a lower-level employee, taking their job but still keeping their salaries constant. Through the bargaining power of the unions, A&P lost and was not able to cut down the higher costs of operations. The company would not be able to control its expenditure and thus ended up losing in its restructuring attempt. Upon the sale of its properties, prospective buyers have shown their unwillingness to take the obligations which include the bargained pensions by the union. A&P continues to blame the combative union model which has continued to challenge its case filings to sell off the properties on claims of bankruptcy. The interest of the union is to ensure that the rights of the employees in their unions are granted and that the bankruptcy of A&P will not affect the benefits and the bargained pensions. The NLRB should determine the fate of the employees under the trade union and that of A&P supermarkets (Hawthorne, 2010).
NLRB is mandated by the government to determine the case of succession of trade unions and the employees under the trade unions during bankruptcy or the sale of business. It mainly focuses on providing job security, benefits and the interests of employees during such actions or changes which may lead to unfair treatment of the workers (Elmer, 2016). Since the formation of NLRB, it has experienced many changes in its operation which seek to improve its performance and power of jurisdiction in deciding the cases between the trade unions and the employers. Federal Bankruptcy Code provides four basic types of bankruptcy which are legal. Chapter 7 provides for the bankruptcy case where the business if liquidating with no plans to reorganize itself. Chapter 13 covers the aspect of bankruptcy as individuals in the business. Chapter 11 provides for the bankruptcy where the business plans to reorganize itself with the purpose of providing relief to the business by avoiding and terminating all contracts and debts it owes to stakeholders. Chapter 9 cover such bankruptcies and reorganization plans of the municipalities. The constitution states clearly the provisions of all the four types of bankruptcy to enhance the judgment on the filed cases.
Constitutional debates to create a platform for the application of the mandates of the NLRB in the place of the Bankruptcy Code has been experienced in the pasts (Cameron, 2003). NLRB fights to give the workers unions rights and upper hand over corporations (employers) making it illegal for the employers to take any action that can affect the interests and the benefits of the employees. Bankruptcy Codes, on the other hand, seeks to give the debtor in possession (the company or the corporation) what is regarded as "some flexibility and breathing space” which entails being free to make decisions during bankruptcy without the interference on the labor unions and the workers (McClain, 2011).
In the case of A&P supermarket and stores versus the workers' unions, NLRB is bound by various provisions which give the employer equal rights and capacity to terminate the union contracts. Though NLRB continues to protect the rights of the employees under the union, it must provide good cause for rejecting the proposal of the A&P supermarkets; NLRB would also need to liaise with the potential buyers of the stores to establish their willingness to take up the obligations of A&P supermarket (Liebman, 2007). Since the first bankruptcy filing A&P management has proved that its financial position and loss of profitability have been caused by the bumping rights among many other rights of the employees under the combative bargaining power of the unions. The functioning of the 12 unions with different bargained interests and benefit also become lethal to the operation of the company (Hawthorne, 2010). With the enough proof that the bankruptcy of the A&P supermarket was caused by the many trade unions, the federal bankruptcy judge ruled for A&P and hence NLRB would hence lose the benefits of the employees whom it protected.
With the continued amendment of labor relations law, NLRB has been disabled and its ability to protect the employees and ensure a clear succession of the employees’ benefits. Clear indication that the corporation/employer and in this case A&P supermarket has been collapsing out of union contracts warrant the direct rejection and termination of the union contract (Elmer, 2016). The amendment of section 1113 of the constitution should be done to establish equality in the power to determine the fate of employees and their benefits. Fairness and employees protection requires that Congress to pass a law restating the position of NLRB to remove the unfair labor practices by the employers which may affect the performance of the labor unions.
References
Cameron, C. D. R. (2003). Borderline' Decisions': Hoffman Plastic Compounds, the New Bracero' Program, and the Supreme Court's Role in Making Federal Labor' Policy. UClA l. reV., 51, 1.
Elmer, V. (2016). Issue: Failure Short Article: Multiple Bankruptcies Create a" Chapter 22 Club.
Hawthorne, F. (2010). Pension Dumping: The reason, the wreckage, and the stakes for Wall Street (Vol. 10). John Wiley & Sons.
Liebman, W. B. (2007). Decline and Disenchantment: Reflections on the Aging of the National Labor Relations Board. Berkeley Journal of Employment and Labor Law, 569-589.
McClain, A. J. (2011). Bankruptcy Code Section 1113 and the Simple Rejection of Collective Bargaining Agreements: Labor Loses Again. Geo. LJ, 80, 191.
Pope, J. G. (2012). The Thirteenth Amendment versus the Commerce Clause: Labor and the Shaping of American Constitutional Law, 1921-1957.Columbia Law Review, 1-122.
