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Chapter 14 - Employment Law III: Labor—Management Relations
Internet Exercises and Supplements
Answer to Internet Exercise (p. 639)
Go to National Labor Relations Board’s frequently asked questions [http://www.nlrb.gov/faq/nlrb].
1. Explain what an employee at a unionized workplace who is “unhappy” with the union can do.
According to the website cited above, the employees can use their internal grievance process to
2. Explain how to file an unfair labor practice (ULP) claim.
Student Projects
Find the homepage for a union of your choice. Who does it represent? (That is, what type of employee
or who makes up its bargaining unit?) Does it provide any argument for why individuals should become
members? Does it identify any benefits it has won for its members recently? Give specifics.
Answers
Answers to ‘Introduction’ Questions (p. 607)
1. This question will lead to a students’ discussion. The majority answer in this case is going to be a
resounding yes. Unions tend to keep organizational practices in check and also serve to
2. This question involves a lot of ethical issues and therefore students’ answers will vary. The
Answers to ‘Does the Union Have a Fight Song’ Questions (p. 607)
1. Students’ answers will vary. Technically speaking, the students were required to “work” towards
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Chapter 14 - Employment Law III: Labor—Management Relations
continued success in the sport. This automatically qualified them to be categorized as workers
2. It is a well-known fact that organizations oppose unionization of workers to varying degrees. In
Answers to ‘Practicing Ethics: Reading Your Rights at Work’ Questions (p. 611)
1. Students’ answers will vary. Many of them may say that legal requirements aside, looking from a
purely ethical standpoint, it would be perfectly ok on the part of the employer to paste a notice
2. Not necessarily. In many of the states, non-unionized workers are carried along as free riders in
Answer to ‘Bleeping Protected Activity’ Question (p. 611)
The administrative law judge (ALJ) found that the employee’s dismissal was lawful because his
statement was so profane and offensive that it was not protected by the NLRA. On review, the NLRB
Answer to ‘All Because of a Bad Haircut’ Question (p. 613)
Students’ answers will vary. The employee Ms. Nichole Wright-Gore was fired because of a company
Answers to ‘Practicing Ethics: Union Loyalty, Employee Loyalty, or Money?’ (p.
630)
1. Students’ opinions will vary. The talk show hosts took a utilitarian position by arguing that they
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Chapter 14 - Employment Law III: Labor—Management Relations
could do the most good for the most people—at least among those people for whom they were
2. Students’ opinions will vary. Presumably, the student’s short-term interest favors a decision to go to
Answers to ‘Mock Funeral’ Questions (p. 635)
1. The union’s combination of “street theater and handbilling” was found to be protected under the
2. The D.C. Circuit held that the union protestors must have the same right to protest near hospitals
Answer to ‘Lockout’ Question (p. 636)
The D.C. Circuit Court held that the employee was not engaged in protected activity and upheld the
Answer to ‘The Labor War and Dreamliner’ Question (p. 638)
Instructors’ can use these questions to initiate class discussions. Students’ opinions to these questions
Cases and Answers
Wal-Mart Stores, Inc. v. National Labor Relations Board, 400 F.3d 1093 (8th Cir.
2005) (p. 617)
Syllabus
Wal-Mart appeals a finding of the NLRB that it impermissibly punished employee Brian Shieldnight for
union solicitation. There were three incidents which were analyzed by the court: (1) the off-duty
wearing in the store of a t-shirt that read “Union Teamsters” on the front and “Sign a card … Ask me
how!” on the back; (2) while on duty, inviting fellow employees to a union meeting; and (3) while on
duty, stating to one employee that he would like her to consider signing a union authorization card. The
court concluded that the first two actions were not “solicitation” because they did not call for an
immediate response from other employees or interfere in any manner with the operation of the store.
On the other hand, asking a co-worker to sign a union authorization card, in light of the totality of the
circumstances, constituted solicitation even though Shieldnight did not have a card in his hand at the
time. The nature of the conversation was analogous to a direct solicitation.
Answers to Wal-Mart Stores, Inc. Questions (p. 619)
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Chapter 14 - Employment Law III: Labor—Management Relations
1. In balancing union and management rights, wearing union insignia has long been considered
protected activity so long as it does not materially interfere with work. The words on Shieldnight’s
2. The invitation to the meeting did not call for an immediate response. The invitation was more in
the nature of a statement of fact to put his co-workers on notice. The invitation was not “uniquely
Multi-Ad Services v. NLRB, 255 F.3d 363 (7th Cir. 2001) (p. 621)
Syllabus
Following an announcement that the company intended to implement a new drug-testing policy,
Steele, who worked in the bindery department, criticized the policy and requested a copy of the
corporate bylaws (to which he was entitled, as he was a participant in the company’s employee stock
ownership program). Two days later he mentioned to the plant production manager that “management
needed to just sit down with the hourly employees and work some things out.” He further said if they
couldn’t do that, he, Steele, would organize a union. A couple of weeks later, in a meeting with the
production manager and the head of his own department, they inquired why he wanted a union and
then asked what they could do to improve Steele’s own situation in the company. The next day Steele
was interviewed for another position, even though there were no current openings in that position.
Over the next few weeks, Steele twice met with union officials. Then at a meeting of Steele’s
department, Steele’s supervisor “warned that the bindery department would be the ‘first to go’ if the
company unionized.” At another meeting, they were informed that they would all have to start working
mandatory 10-hour shifts. Shortly thereafter Steele was invited to go to a vice president’s office to pick
up the copy of the bylaws he had requested. When he arrived, not only was he denied a copy, but
events heated up and Steele walked out of the office. A termination letter was immediately sent to
Steele, stating that he was fired for walking out of three meetings, not agreeing with corporate policies
and interrupting the work flow of his department.
An AFL-CIO local filed a grievance on his behalf with the NLRB. The Board’s general counsel then
issued a complaint charging Multi-Ad with NLRA violations for coercively interrogating Steele about his
interest in forming a union, impliedly promising to improve his personal employment situation and
threatening to close his department if the employees unionized. The 7th Circuit found that there was
substantial evidence to support each of these claims. Further, the court rejected Multi-Ad’s affirmative
defense that Steele was fired for leaving three meetings “pretextual.” Rather, there was substantial
evidence that he was fired because of his efforts to unionize.
Answers to Multi-Ad Services Questions (p. 623)
1.
a. The four unfair labor practices identified by the court are as follows:
Management coercively interrogated Steele in a closed-door meeting about his
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Chapter 14 - Employment Law III: Labor—Management Relations
b. The court stated that the test was not whether coercion actually occurred, but only whether
c. The firing coincided with Steele’s increased efforts to organize a union and his supervisor
d. The written explanation for the termination stated a different reason than that Steele had left
2. In general, an employer is obligated to implement any increase or benefit decided on before
3. No. The office “had no special impact of awe.” Thus, interviewing employees at the focal point of
Colgate–Palmolive Co., 323 NLRB No. 82 (1997) (p. 627)
Syllabus
In 1994 an employee discovered a surveillance camera in a restroom air vent. The union filed a
grievance and Colgate argued it had the absolute right to install internal surveillance cameras. The
union sent a letter demanding to bargain the subject, but Colgate did not respond, so the union filed an
unfair labor practice charge. The issue was whether Colgate had to bargain with the union over the
existence and placement of surveillance cameras (i.e., whether it was a mandatory bargaining
subject).
The NLRB found that these matters were “plainly germane” to the “working environment” and “outside
the scope of managerial decisions lying at the core of entrepreneurial control.” Like drug and polygraph
testing, the cameras were an investigatory tool to ascertain whether any employee was engaged in
misconduct. Some of the cameras’ placements also raised privacy concerns. The NLRB found the
union had a right to engage in bargaining “over the installation and continued use of surveillance
cameras, including the circumstances under which the cameras will be activated, the general areas in
which they may be placed, and how affected employees will be disciplined if improper conduct is
observed.”
Answers to Colgate-Palmolive Questions (p. 628)
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Chapter 14 - Employment Law III: Labor—Management Relations
1. Mandatory bargaining subjects must be “plainly germane to the working environment” and not be
2. The NLRB noted that: The use of hidden cameras was analogous to other investigatory practices,
such as polygraphs, physical exams and drug/alcohol testing, all of which the NLRB had
3. Instructors’ can use this question to initiate a class discussion. While a majority of the class may
4. The court of appeals agreed with the NLRB that the use of the hidden surveillance cameras was a
Diamond Walnut Growers, Inc. v. NLRB, 113 F.3d 1259 (D.C. Cir. 1997); cert. den.
118 S.Ct. 1299 (1299) (p. 631)
Syllabus
Diamond Walnut processes and packages walnuts. In September of 1991, nearly 500 of its permanent
and seasonal employees went on strike. Diamond hired replacement workers to continue operations.
Approximately a year into the strike, several employees went to Diamond with an unconditional offer to
return to work. For the two workers discussed in this excerpt neither the permanent jobs they held
before the strike, nor substantially equivalent ones, were available, so Diamond placed them in various
seasonal jobs. A complaint was filed arguing Diamond had unlawfully discriminated against these
employees because Diamond declined to put them in certain available seasonal positions for which
they were qualified and that were preferable to the positions in which they were placed.
The court found that Diamond was obliged to treat these returning employees like any other applicant
for work, unless Diamond can establish a legitimate and substantial business justification for treating
them otherwise. With respect to Munoz, Diamond declined to let her operate a forklift so that she
would not find herself confronted by hostile replacement workers in an isolated area of the plant and so
as to not incur the risk that she would attempt to sabotage the plant with the heavy equipment. The
court did not accept this rationale, pointing out that Munoz was allowed to roam freely around the plant
during breaks and at lunch and that there was no more risk of sabotage with her than with any
post-strike returning worker.
With respect to Miller, however, the Court found Diamond’s arguments persuasive. Diamond refused to
place her as a quality control assistant responsible for the final visual inspection of the walnuts before
leaving the plant. While out on strike the union had expressly claimed that company’s walnuts were
contaminated. “If Munoz ran her forklift into valuable machinery, she would run a risk of being
discovered and would therefore be deterred. But Miller, as a quality control assistant, could simply
avert her eye and cause the damage with apparently little risk of discovery … In short, she would have
had a special motive, a unique opportunity and little risk of detection to cause severe harm.” Thus,
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Chapter 14 - Employment Law III: Labor—Management Relations
Diamond’s actions in placing her elsewhere were substantially justified by business reasons.
Answers to Diamond Walnut Growers, Inc. Questions (p. 634)
1. The employees must first make a prima facie case that Diamond discriminated against them
2. “If Munoz ran her forklift into valuable machinery, she would run a risk of being discovered and
would therefore be deterred; also, there is an equal chance of sabotage by other returning
3. Instructors’ can use both the parts of this questions to initiate class discussions.
4. The Sixth Circuit found that the union’s concerted action did not constitute an illegal strike. It was
Answers to Chapter Questions (p. 639)
1. Students’ answers will vary. Becker’s termination is justified. This is because it was not a random
2. Students’ answers will vary. The law clearly states that an employee cannot expect reasonable
3. Students’ answers will vary. The plant manager, if she is able to prove that the employee in
question has no disabilities and is qualified to do what his job requires him to do, can set in place
4.
a. The raise might be interpreted as a promise of benefit. Therefore, the employer can legally
b. The fact that ACE granted across-the-board wage increases to try to fend-off unionization,
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Chapter 14 - Employment Law III: Labor—Management Relations
5.
a. The employer’s position was that, by walking off the job, the employees had quit.
b. Employees argued that they were engaged in protected concerted activity.
c. The Seventh Circuit found for Bob Evans because it is generally accepted that the hiring and
6. This question will elicit a lively debate on ethics and accountability involved in production,
manufacturing, and marketing. Ford is well aware of the inhuman conditions at the facility in
7. Instructors’ can use this question to initiate a class discussion. The court found that the drivers
were entitled to reinstatement. Midwestern had interfered with the unionization process by
8. Yes, Albertson’s has the right to exclude nonemployee union representatives from its property.
9. The court found, contrary to the NLRB’s ruling, that the hospital’s claim that the buttons would
10. The NLRB found the policy to be an unfair labor practice as the prohibition on communication
11. The court reversed the NLRB’s decision that the shopping mall operators had discriminated
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Chapter 14 - Employment Law III: Labor—Management Relations
12. Kirby won. The union’s failure to process Kirby’s appeal denied him the possibility of being
13.
a. That may depend on whether the workplace is unionized. If not, then the employees are
b. In a union shop where the collective bargaining agreement contains a no-strike clause, such
14. The employer can use management personnel or hire workers to replace strikers. If it is an
15. The employer was found to have violated the NLRA in not providing its employees with adequate
16. The court found that the union had violated the Drivers Privacy Protection Act of 1994, and that its
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