978-0078029165 Appendix B Part 14

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Appendix B-261

| Appendix B – Chapter Exercises

This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.

procedures for voting on union representation.

The purpose of this exercise is to provide some guidelines for managers regarding their behavior in

different situations to which the NLRA may pertain. Students are given work-related scenarios and

asked to indicate whether the described behavior or policy is legal under the NLRA and present NLRB

rulings. After they complete the exercise, pertinent NLRB opinions and court rulings are presented.

Director determines that the charge lacks merit, it is dismissed. A dismissal may be appealed to the

General Counsel’s office of the NLRB. If the Regional Director finds reasonable cause to believe a

violation of the law has been committed, that office of the NLRB seeks a voluntary settlement to

remedy the alleged violations. If the settlement efforts fail, a formal complaint is issued and the case

goes to a hearing before an NLRB Judge. The judge issues a written decision that may be appealed to

temporary federal court injunction against certain forms of union misconduct, principally involving

“secondary boycotts” and certain forms of picketing.

An NLRB decision is subject to review by a U.S. Court of Appeals and possibly the U.S. Supreme Court.

Most of the “correct” answers to the questions are based on NLRB rulings. Keep in mind that the

NLRB can reverse positions on these issues and that the Courts can overturn an NLRB ruling. You

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| Appendix B – Chapter Exercises

1. Managers do not have to worry about the NLRA if the workers they manage are not in a union.

2. Non-union workers cannot go on strike.

3. A company can adopt a no pro-union shirt rule.

under Section 8(a)1 of the NLRA.

4. A manager can invoke the “employment-at–will” doctrine and fire a non-union worker who

complains about too much overtime.

5. A manager can invoke the “employment-at–will” doctrine and fire an employee who refuses to

obey an order she feels is unsafe.

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| Appendix B – Chapter Exercises

This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.

activity.” See Mead Corp., 331 NLRB 509, 513 (2000).

6. A manager can fire an employee who fails to use the company complaint process and walks off

the job in protest of working conditions.

7. A manager can fire an employee who refuses to work an overtime shift.

The correct answer is: True, if this is the choice by an individual employee. False, if it has been

determined to be concerted activity. A one time concerted refusal to work required overtime shifts is

presumptively protected activity. See Polytech, Inc., 195 NLRB 695 (1972).

8. A manager can fire an employee who voices a complaint in an offensive or disruptive manner.

9. A company may include a rule in its Handbook that prohibits employees from discussing their

wages.

10. Managers can bar off-duty employees from entry to parking lots and other non-working areas.

The correct answer is: False. Except when justified by business reasons, a rule which prohibits off duty

employees entry to parking lots, gates, and other nonworking areas will be unlawful. See Tri County

Medical Center, 222 NLRB 1089 (1976).

Appendix B-264

| Appendix B – Chapter Exercises

This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.

11. Managers can bar off-site employees from access to an employer’s facilities.

12. A manager can fire an employee who makes disparaging remarks about the employer in a

newspaper article or on the internet.

13. An employer can ban all non-business e-mail correspondence among employees.

14. Because of the employment at will doctrine, managers do not necessarily have to apply work

rules consistently.

The correct answer is: False; this would be risky business if the inconsistency is shown to be related to

any activity or behavior covered under the NLRA.

15. A manager can appoint non-union subordinates to a committee to discuss working conditions.

The correct answer is: True. However, if these nonunion employees or committees are found to be

“dealing with” employees (i.e. addressing employee issues on a routine basis) , they may be

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16. A manager can fire a non-union employee who is picketing a store during off-duty hours for

purposes of organizing the workers.

enjoined for at least 30 days. 29 U.S.C 158 (b) (7).

17. A manager can fire an employee if the manager finds out that the employee is a paid union

organizer.

The correct answer is: False. The Supreme Court ruled in NLRB v. Town & Country Electric, Inc. 516

U.S. 85 (1995) that this is a violation of the NLRA. This tactic, called “salting,” had its genesis in the

construction industry. The court has stated that “salts” are “employees” for purposes of the NLRA and

are therefore, protected from discrimination on the basis of their union activity.

18. A manager can refuse to hire a job applicant if the manager knows the applicant is a union

member.

19. An employer can adopt a no “Moonlighting” policy if the employer is concerned about paid

union organizers being hired.

20. An employer can refuse to hire an over-qualified individual if management knows the individual

is sympathetic to unions.

Appendix B-266

| Appendix B – Chapter Exercises

This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.

enforced mutually and consistently. Even if the intent can be shown, the Board may consider this type

of policy to be a pretext for discrimination against salts. In Aztech Electric Co., 335 NLRB 260 (2001),

the Board decided, based on the facts of the policy of not hiring any applicant with a recent wage

earning of 30 percent or more than the employer’s starting wage, was in violation of the employee’s

rights under the NLRA. On appeal, the D.C. Circuit held that because the wage comparability rule was

not motivated by antiunion animus, its application was nondiscriminatory. See Contractor’s Labor

Pool v. NLRB, 323 F. 3d 1051 (D.C. Cir. 2003).

21. An employer can refuse to hire an applicant who violates a company rule forbidding disclosure

by applicants of “protected activity” such as union organizing.

The correct answer is: False. Applicants should not be interrogated concerning their union

sympathies. Teletech Holdings, Inc. 333 NLRB 402 (2001).

22. A manager is allowed to say strikes are “inevitable” if there is a union.

23. A manager can say that the store or plant will shut down if a union is voted in.

24. A manager can ask employees questions about where they stand on unions.

25. An employer can promise increases in employee benefits during an organizing campaign.

Appendix B-267

| Appendix B – Chapter Exercises

This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.

The correct answer is: False. Although the NLRA does not limit the promises that a union can make

during an organizing campaign, employers are prohibited from promising, expressly or otherwise,

wage increases or improved working conditions for the purpose of convincing employees to vote

against union representations after a petition requesting an election has been filed. See Niblock

Excavating, Inc. 337 NLRB 53 (2001) enforced 59 Fed. App. 882 7th Cir. (2003).

26. An employer can impose a “No solicitation” rule stipulating no union organizing.

27. An employer can allow antiunion activity during work hours while disallowing pro-union

activity.

The correct answer is: False. If the employer permits antiunion solicitation by employees but prohibits

prounion solicitation, it violates Section 8 (a) (1). Albertson’s, Inc. 323 NLRB 1, (1997) enforced 161 F.

3d 1231 (10th Cir. 1998).

28. An employer can allow charities to distribute material while not allowing a union from

distributing information.

29. An employer can ban pro-union buttons or insignia during working hours.

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| Appendix B – Chapter Exercises

30. An employer can ban union material from a bulletin board that allows Red Cross solicitations.

31. An employer can ban pro-union screen-savers on the employer’s computer.

savers including pro-union savers as long as there are no exceptions.

32. A manager is allowed to say wages and benefits are not paid during a strike.

The correct answer is: True. Employers may emphasize that wages and benefits are not paid during a

strike.

33. A manager is allowed to say unemployment insurance is unavailable during a strike.

34. A manager is allowed to say that strike benefits are only available to workers who picket.

The correct answer is: True. Strike benefits are only available to employees who participate in

picketing the employer.

35. A manager is allowed to say “my eyes are on you and you’d better watch your step” to a pro–

union employee.

36. A manager can hire “permanent replacement workers” during a strike action and these

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| Appendix B – Chapter Exercises

replacements need not be displaced when the strike ends.

it in those terms. See Piezo Technology 253 NLRB 900 (1980). Also HR professionals need to be aware

that the NLRB grants preferential reinstatement rights to economic strikers. See Golden Stevedoring

Co., 335 NLRB 410 (2001).

37. The use of employee survey data (see statement below).

A retailer surveys its employees annually as part of its “Grass Roots” program. The survey is designed

to assess employees’ perceptions on work-related issues. Results are tabulated by store, and the top

True or False. The use of the UPI is legal under the NLRA.

38. An employee has a blog he uses to encourage employees to form a union. In this blog, he makes

false statements regarding the employer. The employer can therefore fire him.

harmful and sensitive rumors that the employee knows or should know are false is not protected by

the NLRA.

Appendix B-270

| Appendix B – Chapter Exercises

Chapter Exercise 13.3

The Baseball Strike: An Example of Collective Bargaining

Joseph G. Clark, Jr.

IM Notes prepared by Joyce E. A. Russell

Objective. This exercise describes the difficulties that can arise from two-party negotiations. It also

enables students to see some of the preparation involved in collective bargaining, and to prepare an

argument for the advancement of goals in collective bargaining.

Description. The exercise should take about 15 minutes of in-class time for students to select who

will be on each team (baseball players union, team owners) as well as selection of the mediator. The

professor may want to pick one or two mediators based on those with effective negotiating skills.

After individually reading the appropriate exhibit (Exhibit 13.3.1 for students assigned to the players

union and Exhibit 13.3.2 for students assigned to the baseball owners group), students should discuss

their views with others on their team. The discussion should focus on what they will ask for in the

negotiations. These small group discussions may take about 20 minutes of in-class time.

Once both sides are ready, they should begin the formal negotiation process. The professor should

time the discussion and end the talks when 25 minutes have elapsed or when a final decision has

been reached. The mediator may be called in if either side chooses to use mediation.

It would be fruitful to brief students on the issues involved in the latest union and management

baseball negotiations.

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| Appendix B – Chapter Exercises

Table 13.3.1

Responses to Form 13.3.1 Reaction Form

1. What were the terms of the final agreement negotiated between the two sides?

2. What were the difficulties that arose while trying to reach an agreement?

Students may discuss personality issues, communication skills, and differences of opinions, etc. as the

major difficulties.

3. What role can you see the mediator playing during bargaining of this type?

want.

4. During collective bargaining, discussions can become heated. Did this occur during the

exercise, and, if so, how was this resolved?

5. In the future, what techniques might both sides try to better gain their objectives?

Make sure that each side has a clear sense of what is most important to them, and what they are

willing to give in on. They should also make sure they have good representation (i.e., someone who

can speak effectively for their side and the group feels will represent them fairly).

Appendix B-272

| Appendix B – Chapter Exercises

CHAPTER 14 – CHAPTER EXERCISES

Chapter Exercise 14.1

The Development of a Company Smoking Policy

Objective. The purpose of Exercise 14.1 is to have students recognize and understand the controversy

surrounding smoking in the workplace, and apply this knowledge by designing a workplace smoking

policy. The exercise requires the student to integrate material from Chapter 3 (Equal Employment

Opportunity).

Description. Part A requires each student to formulate a smoking policy. This should take no more

than one hour of out-of-class preparation in addition to reading the chapter. The student is asked to

assume the role of a committee member who has been appointed to develop a new policy for the

clerical staff of a law firm. Table 14.1.1 presents several factors that should be considered in the

design of a successful program. Table 14.1.2 provides a model for the development of a policy. You

should emphasize that the legality of a policy may depend on the location of the company since state

and local laws may differ. Part B requires students to assemble in groups and compare policies.

About 40 minutes should be set aside for discussion and another 15 minutes should be allotted for

group presentations.

In order to enhance the group discussion, you should encourage students to examine approaches

currently being used by organizations. For example, the Bureau of National Affairs publishes a weekly

newsletter, called the Bulletin to Management: BNA Policy and Practice Series, which reports on a

variety of HRM activities, including the development of smoking policies. Other periodicals of interest

include Management Review, Safety and Health, Supervision, and Training and Development Journal,

to name a few. These publications should be available in your local library.

You should emphasize that there is no “one right answer.” Instead, students should use their own

logical reasoning to decide on an anti-drug policy.

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| Appendix B – Chapter Exercises

CASE DISCUSSION

Although student responses may vary, most will agree that smoking policies are beneficial to

organizations. Not long ago, smoking was a well-accepted habit. However, in the midst of today’s

health and fitness craze, many people view smoking as unhealthy, and even offensive. Given this

trend it is unlikely that students will advocate taking no action at all. Rather, in one form or another,

they will suggest some type of smoking policy.

Table 14.1.1 presents some of the issues surrounding the development of smoke-free practices. For

example, there are many reasons for adopting a workplace smoking policy. A Bureau of National

Affairs (BNA) survey found that the most popular reason was a concern for employees’ health,

followed by complaints from nonsmokers, legal compliance, and concerns about welfare costs. Least

cited reasons included concerns about smokers’ job performance (e.g., productivity, absenteeism)

and concerns about high business insurance costs.

Probably the most controversial aspect of developing a smoking policy is deciding on the proper

strategy to employ. Some of the more popular options are discussed below.

Option 1: Refusing to hire nonsmokers in the future

This is a possibility but could be illegal. Page 489- “The Michigan company that banned all smoking (on

and off the job) could not impose such a rule in most of the 29 states with “smokers’ rights laws.” A

New Jersey state law, for example, prohibits discrimination in hiring, pay, and working conditions

against smokers “unless the employer has a rational basis for doing so.” Unfortunately, it is now up to

employers to determine what constitutes a “rational basis.” Are higher health care costs a rational

basis? The state of New York has one of the most sweeping laws regarding protections for

nonsmokers. Employers must adopt and post a written policy on smoking that must include smoke-

free work and eating areas.

Option 2: Preventing New Hires and Incumbents from Smoking Off-the-Job

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| Appendix B – Chapter Exercises

While employers have the right to establish smoke-free workplaces, their right to impose rules, which

restrict smoking off the job, remains uncertain. However, the fact that the tobacco industry has

joined forces with the American Civil Liberties Union (ACLU) to promote smokers’ rights may mean

that employers with such stringent policies will face increased numbers of lawsuits. In general, the

rationale from the first scenario applies here as well.

Option 3: Allowing Smoking In Designated Areas Only

This approach appears to accommodate both sides as it respects smokers’ rights to privacy and

nonsmokers’ rights to avoid the effects of second-hand smoke. For example, the law firm in this case

could prohibit smoking in certain areas (e.g., offices, meeting rooms, computer areas, elevators),

while allowing smoking in other areas (e.g., sections of employee lounges, rest rooms, outside the

office building). Employee attitude surveys could be used to decide upon the location of designated

areas.

Option 4: Strict Ban on Smoking in the Workplace

As mentioned earlier, employers do have the right to ban smoking on–the-job. Further, given the

amount of evidence that documents the hazards of smoking and exposure to second-hand smoke

(page 488), it should not be surprising to see organizations take this approach. However, such an

approach is almost certainly going to cause resistance from nonsmokers. Short-term effects might

include lower employee morale and dissension among smokers and nonsmokers. Long-term

implications could include increased absenteeism and/or increased voluntary turnover of high

performing smokers.

Table 14.1.1 also lists others factors to consider when creating smoking policies. Employers may be

able to avoid morale or even legal problems by implementing policies that have been carefully

designed to ensure fair, nondiscriminatory practices. Table 14.1.2 presents a guide for the

development of such a policy. Such policies will also enable organizations to maintain a high quality

of work life (QWL).

Other Questions for Discussion:

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The following questions have no “correct” answers. Instead, they were designed to stimulate further

group discussion.

1. In response to charges of discrimination, could employers claim that refusing to hire applicants

who smoke and/or requiring incumbents to quit smoking is a business necessity? (Refer back to

Chapter 3. Consider that most companies pay for employees’ health insurance, health costs are

rising, and smokers tend to have higher premiums. For example, in a recent in–house survey, Texas

Instruments found that smokers’ health costs were 50% higher than nonsmokers.)

2. What is the smoking policy at your university? at local businesses?

3. Suppose you work for a company that allows smoking in designated areas only (e.g., lounge

area and outside). Over time you find that employees who smoke frequently leave their immediate

office area to briefly smoke a cigarette. Should these individuals receive more break times than their

nonsmoking counterparts? NO. What could be done, if anything, to ensure fairness toward

nonsmokers? Break Time should be equal for everyone.

More information on smoking:

The U.S. Environmental Protection Agency’s “Guide to Workplace Smoking Policies” recommends that

employers create ventilated smoking lounges to separate smokers from nonsmokers. One study

found that smokers in a nonsmoking organization reduced the number of cigarettes smoked per work

shift and decreased levels of nicotine and carbon monoxide. Thus, worksite smoking restrictions may

promote meaningful reductions in tobacco exposure and consequent health risks.

One of the most volatile issues for human resource professionals today is a company’s position on

smoking. Growing information about the adverse effects of secondhand smoke has led to a call for a

ban on smoking in the workplace. The U.S. Environmental Protection Agency reported that

secondhand smoke causes 3,800 lung cancer deaths per year and classified it as a “class A” life–

threatening carcinogen, a rating used only for substances (i.e., asbestos, radon, benzene) proven to

cause cancer in humans. The Centers for Disease Control and Prevention estimated that $75 billion is

spent annually on medical expenses attributed to smoking. Businesses lose $82 billion in lost

productivity from smokers. And smokers take about 6.5 more sick days a year than nonsmokers.

About one in five Americans—or 46 million people—smoke. The costs of property fires ($500 million

per year) and additional cleaning required because of smoking ($4 billion per year) are also significant.

The American Heart Association reported that passive smoking is the third greatest preventable cause

of death in the United States.

Appendix B-276

| Appendix B – Chapter Exercises

A growing number of companies are banning smoking for employees both on and off the job. Weyco,

a Michigan-based health care company, told their current employees who smoked that they had 15

months to quit. Weyco offered free cessation classes and even paid. They then banned all smoking

from its property, banned all smokers from new positions, and conducted breath tests to determine if

employees smoked. If employees test positive, they’re charged $50 a month if they weren’ t enrolled

in a cessation program. When they tested everyone again, four employees refused to be tested and

were terminated. The company stated that the no-smoking policy was part of Weyco’s goal for

healthy lifestyles. Critics are concerned about the “slippery slope” regarding lifestyle. Weyco employs

a health consultant to help workers with their diet. What comes next; a no Big-Mac policy?

The Michigan company that banned all smoking could not impose such a rule in most of the 29 states

with “smokers’ rights laws.” A New Jersey state law, for example, prohibits discrimination in hiring,

pay, and working conditions against smokers “unless the employer has a rational basis for doing so.”

Unfortunately, it is now up to employers to determine what constitutes a “rational basis.” Are higher

health care costs a rational basis?

The state of New York has one of the most sweeping laws regarding protections for nonsmokers.

Employers must adopt and post a written policy on smoking that must include smoke–free work and

eating areas.

Table 14.1.1

Issues to Consider in the Design of a Smoking Policy

ISSUE

COMMENTS

1. What is the reason for adopting the

policy?

Concern about:

– employee health and/or comfort

– health care/ insurance costs

– smoker behaviors (e.g., increased absenteeism,

lost productivity)

– state or local law

– complaints from non-smokers

2. What type of strategy can be

Options may include not hiring applicants who