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Case 17: The Distasteful and Offensive Definition of a “Scab”
Southwestern Bell Telephone Company, Houston, Texas
Communications Workers of America, Local No. 12222
On a Monday morning in early September 1984, Jan Betheda, an equipment technician, reported to two of her supervisors that there was a “distasteful and offensive” memo-random on two union bulletin boards in the plant and office complex of the company. The supervisors, Art Laclede and Debbie Lynkirk, investigated and discovered on both union bulletin boards a printed memorandum entitled, “Jack London’s Definition of a Scab.”In pertinent part, the memorandum included the following.
JACK LONDON’S DEFINITION OF A SCAB
After God had finished the rattlesnake, the toad, and the vampire, he had some awful substance left with which he made a SCAB. A SCAB is a two-legged animal with a corkscrew soul, a water-logged brain, and a combination backbone made of jelly and glue. Where others have hearts, he carries a tumor of rotten principles.
When a SCAB comes down the street, men turn their backs and angels weep in Heaven, and the devil shuts the gates of Hell to keep him out. No man has the right to SCAB, so long as there is a pool of water deep enough to drown his body in, or a rope long enough to hang his carcass with. Judas Iscariot was a gentleman … compared with a SCAB; for betraying his master, he had the character to hang himself – a SCAB hasn’t.
Esau sold his birthright for a mess of pottage, Judas Iscariot sold his Savior for thirty pieces of silver. Benedict Arnold sold his country for a promise of a commission in the British Army. The modern strikebreaker sells his birthright, his country, his wife, his children and his fellow men for an unfulfilled promise from his employer, trust, or corporation.
Esau was a traitor to himself. Judas Iscariot was a traitor to his God. Benedict Arnold was a traitor to his country.
A strikebreaker is a traitor to himself, a traitor to his God, a traitor to his country, a traitor to his family, and a traitor to his class.
THERE IS NOTHING LOWER THAN A SCAB.
After discussing their finding with the company’s director of human resources management, Laclede and Lynkirk removed the two identical memoranda from the union’s bulletin boards. They then informed all employees in several meetings of their actions. They further told employees that any reposting of this “Definition of a Scab” memorandum was prohibited, and that any individuals found doing so would be subject to discipline, including suspension.
Shortly thereafter, the union filed unfair labor practice charges with the NLRB, alleging that the company had violated Section 7 and Section 8(a)(1) of the LMRA by removing the memorandum from the union’s bulletin boards and by threatening disciplinary action against the employees.
Position of the Union
The union claimed that there had never been any company rules concerning what could or could not be posted on union bulletin boards located on company premises. The union had negotiated with the company for the right to have these bulletin boards, and there were no specific negotiated restrictions placed on this privilege.
In the union’s view, the “Definition of a Scab” memorandum was an expression of opinion that was not disruptive to employee work performance or discipline. Just because someone considered it distasteful or offensive did not justify the company’s actions and threats to discipline employees. There had been no work disruption; even though employees were observed in groups discussing the memorandum, this was not unusual or threatening to anyone. Therefore, the company had violated Sections 7 and 8(a)(1) of the Act by interfering with the union’s protected rights and by attempting to coerce and restrain the union and the employees in their expression of those rights. The union requested that the company be ordered to cease and desist in this and any other actions that would tend to interfere with the union’s statutory rights and negotiated privileges.
Position of the Company
The company pointed out that the posting of the “Definition of a Scab” memorandum had occurred only several days following the end of a several weeks’ strike during which some one-third to one-half of the employees had crossed the union’s picket lines in order to work. In the company’s view, the memorandum was aimed primarily at these employees, who had exercised their personal freedom of choice in a difficult situation. Not only was the memorandum offensive to them, but it was likely to contribute to further animosity, internal dissension, and strife that could lead to wholesale disruptions in employee discipline and work performance. An employer cannot afford simply to wait until a breakdown in discipline occurs. In this situation, company management had decided that, for the sake of avoiding further deterioration in workplace harmony and employee morale, the “provocative and inflammatory” memorandum should be removed. The company did not interfere with any of the union’s protected rights in this matter when it removed this offensive and.
In support of its position, the company cited a Supreme Court decision that employers have an “undisputed right … to maintain discipline in their establishments,” which under some circumstances may limit the exercise of employee rights guaranteed by Section 7 (Republic Aviation Corp. v. NLRB, 324 U.S 793, 797-798, 16 LRRM 620 ).
Similarly, the NLRB has found “special circumstances” can exist that would justify an employer’s ban on otherwise protected activity in the workplace if “objective evidence supports the employer’s belief that the ban was necessary to maintain decorum and discipline among its employees” [Midstate Telephone Corp., 262 NLRB 1291 – 1292, 110 LRRM 1533 (1982)]. In the company’s view, this was a “special circumstance’ that fully justified the company’s position. The unfair labor practice charges should be dismissed.
1. Which of the following led to the dispute in this case?
A religious memo that was posted on the union bulletin board was removed, violating religious freedom.
Management removed a memo from the union bulletin board after an employee complaint that it was offensive and distasteful. Employees were then informed in meetings held by Management that anyone reposting the memo would be disciplined.
The posting caused a work disruption, with several employees stopping work.
Both a and c
Which of the following arguments were
made by the Union to uphold the complaint against Management?
No restrictions had been negotiated on the content of postings on the union bulletin board.
Employees have the right to express religious opinions in the workplace.
Work had not been disrupted by the posting.
Union communication that is distasteful or offensive is still protected from interference by Management.
All of the above arguments were made by the Union to uphold the complaint.
Which of the following were arguments made by Management in defending its actions?
The employer has the right to act proactively to avoid a breakdown of discipline and work performance.
This situation was an example of a “special circumstance,” recognized by the NLRB and the Supreme Court as allowing an employer to ban activity that would otherwise be protected under Section 7 of the LMRA.
The memo was aimed at the one-third to one-half of the employees who crossed the picket line during a strike that had just ended a few days before the posting of the memo. This would lead to further animosity and internal dissention between employees.
Both b and c
What are the legal concepts that apply in this case?
Religious freedom is protected under the LMRA.
Union communications are protected under Section 7 of the LMRA and an employer’s interference with these communications is a violation of Section 8(a)(1).
Employers can create and enforce a policy that disallows union communications that is offensive and/or sacrilegious.
Per the readings for Module 3 (see Labor Law in Brief Handout), Management can ban union literature if it is
insulting and defamatory literature concerning management if it has no reasonable connection with union activity and has a tendency to cause disruption
literature containing vulgar and disparaging remarks about employees and/or management
literature attacking the quality of the product where quality is not related to labor practices
deliberate or maliciously false, defamatory literature
How do you think the NLRB ruled in this case?
“Special circumstances,” as defined by the Supreme Court and the NLRB, existed in this case that allow the employer to ban Union posted memo.
Removing the memo and threatening discipline for reposting it violates Sec. 8(a)(1) of the LMRA.
“Special circumstances” did not exist because there was no proof that work was disrupted and one or two employees being offended does not trump the union’s rights to communicate.
None of the above
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