After you have reviewed the readings for our January 18 class and the instructions below, please write your two-page paper and provide it to the Professor in two ways: 1) a hard copy of it handed in at the beginning of our January 18 class; and 2) in the Assignment drop box here on Canvas any time prior to the start of class on January 18. As we will see, the readings for this class and two-page paper introduce us to what was, in the history of American labor and employment law, the FIRST exception to the at-will doctrine, namely, the National Labor Relations Act, particularly its provision prohibiting an employer from retaliating or discriminating against a worker who has engaged in “concerted” activity for “mutual aid and protection.”
Your two-page essay should address both of the topics below:
- After you have read the discussion of the Hendricks Country Rural Electric Membership Corp case, found at pp. 37-40 of our Supplemental Text, please put yourself in the place of Mary Weatherman. If you had been in her position, and based on your view of the pros and cons of her situation, would you have signed the petition to the board of directors? Why or why not?
- After you have read pp.123-33 of our text, including the excerpts from the U.S. Supreme Court decision in Washington Aluminum case, please assume that you were one of the workers on that cold morning. Based on your view of the pros and cons of the situation, would youhave joined your co-workers who walked out in protest that cold morning? Why or why not?
As you compose your thoughts, and eventually report your decision, you might wish to address: As you thought through your decision, did you consider any reasons to decide “the other way”? If you saw pros and cons, how did you reconcile them? Are there assumptions about proper workplace behavior by employees that you bring to your thinking? Assumptions about proper workplace behavior by managers/supervisors that you brought to your thinking? If your decision in either case was a close or difficult one, that’s OK, but be sure to explain why. If your decision was an easy one, what made it so? Were there no offsetting considerations? By the way, in the actual Washington Aluminum case, the courts did not consider the dare by the foreman, Mr. Jarvis (he’s the fellow who said that if the workers “had any guts at all, they’d go home”) to have given any kind of employer permission for the workers to leave.
In preparing your essay, you might consider the following:
- Your should choose whether to reason from general principles or from the particular facts of the situation or some blend of both. Try to pay close attention to the facts, and use your powers of “visualization.” For example, are you clear on exactly what position Ms. Weatherman occupies? For another example, are you aware that factory workers spend much of their time handling tools and equipment made out of cold-conducting metal? Etc. etc.
- Try to fairly assess the potential cost of taking the stand you take. A university student of today – especially one who will soon have a bachelor’s degree – might feel he or she has a certain amount of value and security in the labor market, and thus a college student might be more willing to risk losing a “mere” clerical or factory job. If this affects your thinking, don’t be afraid to say so. Perhaps, in the shoes of Mary Weatherman or an aluminum factory worker, you would feel that you still have plenty of career options and therefore little to lose. But try to put yourself in the circumstances of these employees and weigh the “upsides” and “downsides” as you’d see them in their situation.
- To be realistic in this exercise, we should note that there is a possibility that your employer will fire you if you join in the group activity (after all, that’s exactly what happened to the employees here!). And bear in mind that, if your employer does fire you in retaliation for your action, and if you file a charge with the National Labor Relations Board (NLRB) to enforce your right to engage in what the law considers to be “protected concerted activity for mutual aid and protection,” it may take the prosecutor at the NLRB (the “General Counsel”) one or even two years to get an enforceable court order restoring you to your job, and that’s the kind of enforcement activity that is required against many employers. In the meantime, and unless you can find other work, you will suffer a loss of employment and income, so you might have disruption in your life. And even assuming you eventually win your job back, you’d probably assume you’d get “full back pay” (measured by the earnings you lost from the date of your firing to the date of your reinstatement), but here’s an advance look at how labor law works on that topic:
The NLRA case law has a special rule regarding recoverable “back pay” for persons who are unlawfully fired for concerted activity: The NLRA requires you (the fired person), while you’re off the payroll but fighting your allegedly unlawful discharge, to make reasonable efforts to “mitigate” (or reduce) your damages. That means the law will reduce your back pay award by amounts that you in fact did earn during the back pay period, or – and here comes the tough part – it will reduce your back pay by any amounts you COULD have earned had you diligently looked for substitute employment. Thus, even if you’re ultimately victorious in winning back your job (reinstatement) and recovering back pay for your period of unemployment, the latter recovery, backpay, comes with a hitch: an NLRB back pay award will consist of 1) your lost pay, plus benefits and seniority, minus 2) the amounts you earned in interim employment or could have earned had you made reasonable efforts to find replacement work.
On the other hand, there may be costs to your not joining the group activity, right? Are you keeping those in mind?
- The Benefit Side: What benefits might collective action (or refraining from collective action) have? Might those pluses win you and your co-workers anything beyond a solution to the immediate issue? If you do decide to take a stand, what are your demands – that is, what will it take for you to stop your protest activity? For some students, these decisions may go beyond “costs” and “benefits” — they may be about principle. If that’s the case for you, fine, but please be sure to explain your thinking.
- Having Your Cake and Eating It Too? Are you tempted to take a pass on your joining in the protest, on the theory that you can leave the fight to others, and if your co-workers win a solution, you’ll enjoy the benefits of their victory without having had to take any risks? That is, assuming you would like to see the employer be challenged here, can you let your co-workers do the heavy lifting and sacrificing, in the meantime “lay low” and collect your paycheck and enjoy job security, but enjoy the fruits of your co-workers’ sacrifice if they win improvements in conditions? Or is there a cost to this strategy too?
- Is all this talk of “costs and benefits” beside the point for you? Is this largely a moral decision? Are you driven by any ideas you have about the duties that a good employee or good employer owes to the other?
I hope these questions might stimulate your thinking. You need not address all of them or even most of them. They’re really just to get you launched and thinking. Write about what you think is important.
Good writing is a critical component of this exercise. Take time to organize your thoughts – please write, edit, and re-write. A good paper should not consist of whatever first occurs to you to say. If you hand in the first thing that you typed, you will probably not produce college-level writing on your first attempt, unless, of course, you have a gift for writing. So you’ll need to edit your first draft, probably significantly, then re-write, add material, delete other stuff, and re-arrange. Please make your essay thoughtful and well-organized. And don’t be afraid to recognize the merit of an argument going against your ultimate decision; recognizing the points “on the other” side of your thinking usually works to make an ultimate conclusion more thoughtful and persuasive.
On the writing itself, please:
- Use good sentence and paragraph structure.
- Strive to hand in a paper that has absolutely no mistakes. Don’t rely exclusively on “SpellCheck” or “AutoCorrect” – to put it plainly, they don’t always check and correct. Be a careful proofreader. You might be interested to know that professional proofreaders read a document four times over after the principal writer believes it to be “perfect.” Each reading concentrates on a different thing (grammar, then punctuation, then spelling, etc.)
- In sum, please produce a written product you’re proud of. If you find that it’s difficult and even a bit painful to produce a good piece of writing, then you’re obviously doing all of the right things. Good writing doesn’t happen by itself. Hang in there!
One of the Crucial Legal Lessons from These Readings
As you work on this paper assignment, you also want to be absolutely sure that you can answer for yourself the following basic labor law questions arising out of these cases: