Unfair labor practice and / or breach of duty of fair representation occurred at Friends Inc.,

Regarding questions of unfair labor practice and / or breach of duty of fair representation occurred at Friends Inc., following are my answers;

(1) Unfair labor practice: Employer

      It seems to be unfair labor practice occurred when management / employer denied negotiating of employee contribution with union / union steward. Denial of negotiation with union and breached of collective bargaining is defined as unfair labor practice under NLRA Section 8 (a) 5 (nlrb.gov).

     If the health care service is provided by third party and third party increase the cost of service, the employer has right to increase the employee contribution towards health care (Morris R. C.).

     As per bargaining / negotiation point of view, the employer trying to do ‘Surface Bargaining’ means the management / employer may be wants total control over working conditions     (Cohen M.).

     Here the employer / management has given prior notice to the union steward about increase in health care contribution cost of employee from 15% to 25% but refuse to negotiate with union. Hence the surface bargaining is likely to occur from the employer i.e. from Friends Inc.

     From above arguments, I believe that the employer has committed unfair labor practice.

(2) Unfair labor practice issue: The Union

     Yes, I believe that the EUA union also involved in unfair labor practice. This is cleared from the union steward’s statement to the Director of Human Resource –Ross. The steward threaten the management in reply to increase in employee contribution; “You’ll see exactly what a union can do!”.

     Instead of come up with the grievance and / or trying to entering in negotiation, the steward threaten the management which is counted as violation under NLRA Section 8 (b) 4; which may considered that union / union member / employee subjected to refuse for work, may involve in strike or work stoppage activities, may involve in boycott of work and / or may convince other employee not to follow company policy.

     Chandler accused for coming late with other employees the day after the conflict aroused with the HR Director and given oral threat to the HR manager.

     Hence, the EUA union has committed unfair labor practice.

(3) Just Cause:

Just Cause is defined as “an employer is justified in terminating an employee without providing reasonable notice or payment instead of the notice” (Zvulony K.).

Several criteria used to define just cause; when employee engaged in any violation or found to violate company policy, the employer can terminate the employee without prior notice. The criteria used to determine just cause are (Achille R., Class notes);

(i) Previous Discipline : Whether the employee had been disciplined in past due to his / her behavior.

(ii) How many years the employee has been working with company,  the more senior the employee the more serious the case would be (Zvulony K.).

(iii) Investigation manner: The employer must have sufficient evidences to prove just cause. The investigation includes

·         Witnesses

·         A grievant and a victim (employee complained about co-worker)

·         Seeing both sides

·         Evidences like documents, video tapes etc.

(iv) Disparate Treatment: Discrimination occurred or not during layoff.

(V) Double Jeopardy: The employer / management cannot discipline an employee more than once for the same offense. If it happens so, the employer engaged in violation of just cause.

(vi) Piling on: To punish employee based on past consecutive misconducts.

Joe’s case: I believe that the Friends Inc. followed just cause “previous discipline” and Joey was disciplined. As Joey committed, “he was go on inappropriate websites” and as per steward’s statement, “he was penalized because of accessing gambling site” shows Joey did it intentionally. Furthermore Joey argued employer’s discipline is not right even he found guilty.

     From the conversations between Joey and Chandler, I believe that Joey not learned anything from past discipline and again involved in misconduct. I don’t believe that any one can go on inappropriate sites twice consecutively even it’s a mistake and Joey may shield himself by stating that he is not good with computer. If he is not good with computer, why did he never try to lean? Or he should not use computer anymore. Joey’s argument not sounds good and the Friends Inc. has used adequate just cause to penalized him.

Rachel’s Case:  It seems that union followed just cause while firing Rachel considering the sever offense and selected no progressive discipline. In that case I can say the just cause followed. But in detail, I found that employer The Friends Inc. has violated just cause.

As per seven criteria of just cause (Achille R., & tdu.org) the employer failed to follow just causes.

(i) Past discipline: It is not cleared here that Rachel and her co-workers Will and Grace has cleared past record or not. Furthermore all found guilty for the same offense.

(ii) Fair Investigation: It is not cleared that what other sources or evidences the HR director took in to consideration while firing Rachel. Employer must have witness / some proof to penalized them. It’s cleared that the security guard caught them and he is the only witness of the event, however he was not present during the personal meeting arranged by the employer. The employer just considered the commitment of Rachel and her co-workers to smoke marijuana on company premises. The self commitment is seems to be enough for the employer to terminate Rachel without notice.

(iii) Disparate treatment: I see the discrimination occurred with Rachel since she was the only female employee. Ross biased with her since all three were caught in her car.

(iv) Adequate notice: It is the thumb rule (tdu.org) that employee must be known when his / her misconduct may results in termination or suspension.

(v) How long the person has been with the company: Here the seniority as well as past records does matter. However the past record of Will and Grace is not cleared and in sever offence, the Friends Inc. fired only Rachel!

     Considering above five criteria I believe, the progressive discipline with Will and Grace is considered to be disparate treatment with Rachel and the employer violated just cause, because when it’s a federal law and / or the employer found it’s a very offensive, either Rachel also given prior notice or suspension before termination or the employer must terminate Will and Grace too.

Smoking marijuana is considered by the employer very serious misconduct hence all three are subjected to same penalty. Only Rachel’s termination led violation of just cause by the Friends Inc.

     I believe that the Friends Inc. acted in discriminatory manner and violated just cause.

References

Achille R. (2010) Just Causes. Class notes. Labor Relations MGMT 6050. Retrieved on November 03, 2010.

Cohen M. (2010) The Law Of Collective Bargaining In Context retrieved on November 03, 2010 from http://www.millercohen.com/CM/ArticlesAndCases/CollectiveBargaining.asp

Morris R. C. (1999) Can an employer raise required employee contributions mid-year? Retrieved on November 07, 2010 from http://benefitslink.com/modperl/qa.cgi?db=qa_125&id=142

National Labor Relations Act retrieved on November 07, 2010 from http://www.nlrb.gov/about_us/overview/national_labor_relations_act.aspx

The Seven Tests for Just Cause retrieved on November 04, 2010 from http://www.tdu.org/node/3623

Zvulony K. The definition of just cause retrieved on November 06, 2010 from http://www.zvulony.com/just_cause.html