Q1. Barney and his co-workers have the right to protest unsanitary conditions in the workplace despite their being unorganized. In NLRB v. Washington Aluminum Co, 370 US 9 (1962), the Court upheld the walkout of a number of unorganized employees because the company failed to repair the heater in the workplace at a time when the weather was very cold. Under the OSHA, which is applicable to both organized and unorganized workers, employers must provide both potable and non-potable water for the use of employees, toilet facilities, lavatories and showers (§ 1910.141). Also, the NLRA protects any concerted activity by employees as a form of grievance against workplace conditions (Walsh 464). The concerted action of Barney and company was in the nature of an economic activity because it was concerned with a workplace condition. This implies that they have right to inclusion in a recall list, rehire if unemployed and in case of vacancies, after the action ceases (Walsh 497).
Q2. Mr. Slate has the option to impose the proposed 7-day work for employees, as long he pays his workers in accordance with the labor laws applicable. According to the FLSA, an employee must pay overtime pay “at a rate not less than one and one-half times” that employee’s regular rate (§207, (a)(2), US Code). Thus, Mr. Slate can ask his workers to work more than 40 hours so long as he pays them the rate mentioned above, and he does not violate any of the workplace conditions provided by law. Barney’s statement did not seem to have been arrived after group consultation or activity to merit it being placed within the ambit of s 7 NLRA protection as required in Citizens Investment Services Corp. 430 F.3d 1195 (D.C. Cir. 2005).
Q3. Mr. Slate may be justified in terminating Barney for his disparaging remarks because they did not constitute expression of any of the rights protected by the NLRA. The comments are not within the ambit of any of the rights enumerated by Walsh (464), unless it can be considered a concerted action. However, he seemed to be speaking for himself only and the nature of his speech was highly malicious and insulting and are, therefore, unprotected (Walsh 465).
The comment is made by Dean Vernon Wormer of Faber College when addressing some students in the movie Animal House.
Q4. Mr. Flint is guilty of violating the NLRA. Under §8, it is a ULP “to interfere with, restrain or coerce employees” in their right to organize or unionize for the purpose of collective bargaining, which is a right guaranteed under §7 of the said law. Threatening to decrease the employees’ wages if they pursue with unionization is a form of interference because it will create the effect of dissuading them to form a union.
Q5. Bribing Barney to influence the outcome of the union election is likewise a form of interference, although indirect. This action is still a violation of the right guaranteed by §7 of the NLRA and could subject the employer to penalties.
Q6. A decertification petition may not be the proper tool to contest the election of SWU because its purpose is to ascertain whether the employees still want to pursue union representation (Walsh 486). This motive is unlikely considering that the election was just held a day before Moreover, a person acting on behalf of the employer cannot initiate a decertification petition, and such petition may be dismissed (§9(c)(1)A) of the NLRA). Barney has been ‘bribed; by the Mr. Slate with a managerial position if SWU to ensure that SWU does not get elected, and therefore, was acting on behalf of the company.
Q7. Access to company’s financial records is not one of the rights guaranteed by the NLRA or other federal labor laws to unions. However, parties must bargain in good faith and the failure of an employer to provide documents, even financial records, if the same is relevant to prove that the company cannot meet a union demand is not in keeping with the good faith principle. This was the dictum held in the case of NLRB v. Whitesell Corp, 638 F.3d 883 (8th Cir. 2011).
Q8. An employer cannot compel any of his employees to be a member of any union. This is an unfair labor practice under the NLRA. Thus, under §8(a)(3), an employer can neither encourage or discourage an employee to become a member of a union. Neither can that employee use hire, tenure of employment and any of the terms of employment to achieve the purpose of encouraging or discouraging employees to join or not join any union.
Q9. Mr. Slate has the right to terminate Barney for his act of dishonesty. This was termination for a cause and was not a ULP since Barney was not the legal representative of Fred or of the union. The union has a right to be represented in grievance proceedings because of the CBA agreement at stake, but Barney has no place in such a proceeding (Walsh 499).
Q10. Yes, Mr. Flint can terminate Barney because the activity of the latter is not protected by the NLRA. A protest by one person on behalf of himself does not constitute ‘concerted’ activity, which is protected by the NLRA. In Meyers Industries (II), 281 NI.RB 882, 885 (1986), the Court held that an activity to be concerted means that it should either be conducted by a group of employees or by authority of such group of employees (cited Walsh 464). It is clear, therefore, that Barney’s protest cannot be considered concerted and thus, unprotected by the NLRA.
Works Cited
Citizens Investment Services Corp. 430 F.3d 1195 (D.C. Cir. 2005).
Fair Labor Standards Act.
Meyers Industries (II), 281 NI.RB 882, 885 (1986).
National Labor Relations Act.
NLRB v. Washington Aluminum Co, 370 US 9 (1962).
NLRB v. Whitesell Corp, 638 F.3d 883 (8th Cir. 2011).
Occupational Safety and Health Act of 1970.
Walsh, David. Employment Law for Human Resource Practice. 4th ed. Cengage Learning. 2012. Print.
