BHR 3565 Unit V Essay

Unit V Essay

Columbia Southern University

Unit V Essay

Basis of charge:

On July 29, 2016 Delphi Golf, Inc. and the ABC Union entered into a collective-bargaining agreement. The majority of the Company’s employees in the collective-bargaining unit covered by the agreement had not designated the ABC Union as their collective-bargaining representative, the agreement, contains a union-security clause requiring employees who are members in good standing of the ABC Union to maintain their membership in good standing and all other employees to become members of the ABC Union on or before the thirty-first day following the effective date of the agreement or the date of their hire, a job referral procedure, and a provision for check-off of union dues; upon instructions from the ABC Union, the company refused to employ the above three waitresses for restaurant positions because the above applicants were not members of the Union. By conduct set forth in the complaint the Company and the Union infringed upon employee rights protected by Section 7 of the Act. Jonathan Smith and 3 other employees were suspended for 3 days for their involvement (CSU, 2019).

Most people that read this automatically jump to the conclusion that the three ladies have a case against their former employer. The phrase “the Company refused to employ the above three waitresses for restaurant positions because the above applicants were not members of the Union” is very impulse generating. It automatically creates an uneasy feeling that the union is somehow in charge. The assumption that these people could be let go for not joining the union sounds completely unfair. There are, however, many details to this case that must first be understood prior to coming to a conclusion.

The phrase “The majority of the Company’s employees in the collective-bargaining unit covered by the agreement had not designated the ABC Union as their collective-bargaining representative” is one of importance. Section 7 of the NLRA states “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3)”( UGSOA, 2017a). Now this seems to be an easy read, until you look closely at the word “except”. It seems, after paying particular attention to the words after “except”, that the ladies no longer have a case. But what does section 8(a)(3) say? Section 8(a)(3) says: “by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: Provided, That nothing in this Act [subchapter], or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in section 8(a) of this Act [in this subsection] as an unfair labor practice) to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later, (i) if such labor organization is the representative of the employees as provided in section 9(a) [section 159(a) of this title], in the appropriate collective-bargaining unit covered by such agreement when made, and (ii) unless following an election held as provided in section 9(e) [section 159(e) of this title] within one year preceding the effective date of such agreement, the Board shall have certified that at least a majority of the employees eligible to vote in such election have voted to rescind the authority of such labor organization to make such an agreement: Provided further, That no employer shall justify any discrimination against an employee for non-membership in a labor organization (A) if he has reasonable grounds for believing that such membership was not available to the employee on the same terms and conditions generally applicable to other members, or (B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership”( UGSOA, 2017b). The fact that there must be a majority vote seems to, once again, give the ladies a leg to stand on. In the Basis of the Charge, it states that “The majority of the Company’s employees in the collective-bargaining unit covered by the agreement had not designated the ABC Union as their collective-bargaining representative”. Does this mean that the Unions collectively bargained agreement isn’t legal?

My conclusion is that the ladies do have a case against the company. It’s unclear if these ladies knew, going in, that they could get passed the word “except” in section 7 of the NLRA, but it is clear that they are correct in their complaint based on the fact that the collective bargaining agreement was not voted on by ”at least the majority”, and is therefore, not legal. All this being said, I am a complete newb to the employment law world and understand 100 percent if I am absolutely wrong here, and will greatly appreciate any correction and education on this case. Thanks.

References

CSU, (2019). CSU Unit V Assignment. Retrieved from https://online.columbiasouthern.edu/bbcswebdav/institution/CSEG_Content/Courses/COB/BHR/BHR3565/16J/Student/SupplementalContent/Presentations/UnitV_NLBRform5012.pdf

UGSOA, (2017a). United Government Security Offices of America. Retrieved from https://www.ugsoa.com/resources.html

UGSOA, (2017b). United Government Security Offices of America. Retrieved from https://www.ugsoa.com/resources.html

Cihon, P. & Castagnera, J. (2017). Employment and Labor Law. Ninth Edition. Boston, MA. Cengage.

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