Part one
WalShop committed unfair labor practice under the National Labor Relations Act. The law forbids employers from coercing employees in the exercise of their rights in the union. One of the employer conduct that violates NLR law is assigning employees more difficult tasks or punishing them because of their engagement in union protected activities. In this case, Cruz was reassigned to the graveyard by his manager because of the action he took during the union meeting. The action of reassigning was retaliation for ordering his supervisor to leave the union meeting. Section 7 of the NLRA guarantees Cruz the right to engage in collective bargaining activities in the labor union. The union can use section 7 and 8 to argue its case in court (Getman, 1967). Section 8 of the act prohibits WalShop from interfering with and coercing Cruz in the exercise of his rights guaranteed in section 7. NLRB can file a case under the two sections to protect Cruz from violation of labor law.
The NLRB will use a wright line test through its board of agents to show the manager’s intention to coerce, threaten or promise anything to Cruz because of his activities in the Union. The NLRB will also show that the affected employee engaged in protected activity and that the employer was aware of the activity. In this case, there were witnesses at the union meeting to confirm that Cruz engaged in the Union activity and his manager was at the scene. Under the Wright Line test, NLRB will also show that Cruz’s reassignment was motivated by his actions in the union meeting. The reassignment alone is not enough to show that there was a breach of labor law. The NLRB will have to match the reassignment with Cruz’s experience and skills to support their claim for unfair treatment. On the other hand, WalShop must show that Cruz met the inherent requirement of his new position as well as that the company’s decision to reassign him at the graveyard is inherent with the requirement of the particular job.
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Part two
In the case of the legitimacy of an election based on supervisor’s representation and statements, the national labor relations board can only nullify the elections if the union shows that the conduct complained of affected the employee’s free choice to the extent that it interfered with the election. A supervisory statement can be coercive regardless of whether the remark was well intended or not. Section 8 provides that expression of views and arguments cannot constitute a violation or unfair labor practice under the provisions of NLRA if such expression is not a threat of reprisal, or promise of benefit or force (Getman, 1967). The words “Unions will be the death of us all,” is not a threat of reprisal and cannot warrant the nullification of the election. The NLRB will have to prove that his words interfered with the free choice of the union members.
The test will involve showing that the employees were pressured to make decisions in the presence of their supervisor. The test should also show that the supervisor present at the place of election was an observer (McCulloch, & Bornstein, 1974). In this case, it would be difficult to prove that the supervisor monitored the employee protected activity during the election. The manager departed before the election and did not coerce or influence anybody to vote against it.
References
Getman, J. G. (1967). The Protection of Economic Pressure by Section 7 of the National Labor Relations Act. University of Pennsylvania Law Review , 115 (8), 1195-1250.
McCulloch, F. W., & Bornstein, T. (1974). The National Labor Relations Board (Vol. 41) Praeger Publishers.
