What to Do with Hendricks County Rural Electrical and Washington Aluminum Cases

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(Be Sure To Read These Instructions Through the Words "End of Instructions") Two Page Paper Assignment – Due at Beginning of January 28 Class-- Essay Describing What YOU Would Do in the Situations of the: 1) Washington Aluminum; and 2) Hendricks County Rural Electrical; cases (Suggested length: approximately 700 words, give or take some) After you have reviewed the readings for our January 28 Class 4 and the instructions below, please write your two-page paper and submit it by clicking on "Submit Assignment" and using "text entry." You must complete your work prior to the start of class on January 28. As we will see, this assignment introduces us to what was, in the history of American labor and employment law, the FIRST federal law exceptions to the at-will doctrine, namely, Sections 7 and 8 of the National Labor Relations Act (NLRA). What was that NLRA exception? Prior to 1935, "pure" at-will doctrine left employers perfectly free to fire an employee for collective activity of any kind, including that aimed at improving wages, hours, etc. In 1935, Congress enacted the NLRA, and it included in that law "Section 7," legally guaranteeing workers various rights, including that of engaging in concerted activity for mutual aid and protection. Note that concerted activity can involve things well short of forming or joining a union. Also in 1935, in the very next section of the NLRA, Section 8, Congress made it an "unfair labor practice" for any employer in interstate commerce to interfere with, restrain, or coerce employees in the exercise of any Section 7 right. Your essay should address both of the topics below: 1. After you have read the discussion of the Hendricks County Rural Electric Membership Corp case, found in 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? Also.... 2. After you have read pp.123-33 of our main Textbook, including the excerpts from the decision of the U.S. Supreme Court 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 you have joined your co-workers who walked out in protest on that cold morning? Why or why not? (Note: For any student still without the text(s), please see Canvas "Files" for back-up copies.) As you compose your thoughts and make your decisions, you might want to consider the following..... What considerations pull you in one direction or the other? Do you consider "self-interest" and "group interest" to be necessarily in conflict? Can they be compatible? As you decide what to do, what are the pros and cons, and how do you weigh them? Are there assumptions about proper workplace behavior by employees that you bring to your thinking? Any assumptions about proper workplace behavior by managers/supervisors that influence your thinking? If your decision in either case was a close or difficult one, that’s perfectly OK. Even if you conclude, "I don't know what I'd have done," that's fine too, so long as you do a good job of explaining why. On the other hand, if your decision is clear-cut, what makes it so? Are there really 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 express employer permission for the workers to leave. And another by the way....the NLRB ultimately won BOTH of these cases on behalf of the individual workers involved, that is, the NLRB awarded BOTH Mary Weatherman and the seven employees at Washington Aluminum reinstatement and backpay. In preparing your essay, you might consider the following (these are just suggestions, offered perhaps most of all to the student who's not quite sure how to tackle this assignment): 1. You might consider whether you should reason from general principles or from the particular facts of the situation or some blend of both. As we've seen, lawyers and judges tend to pay close attention to the facts (that's how the common law works). You might even try to use your powers of "visualization" to work from the bare bones of the facts to flesh them out with your general sense of how workplaces operate. Just as one example, are you clear on exactly for whom Ms. Weatherman worked? For another example (and only one of many), are you aware that factory workers might need to handle metal tools and equipment that, in bitterly cold weather, can be hard even to touch and handle? Etc., etc. 2. You might consider 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 than would the actual, career-long clerical or blue-collar employee. 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 shoes of these employees and weigh the “upsides” and “downsides” as how you think you would see your options in their situations. 3. To be realistic in this exercise, we should note that there is a possibility that your employer will, whether lawfully or not, fire you if you join in the group activity. After all, that’s exactly what happened to the employees here! (at least until the NLRB prosecutor won their jobs back). 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 and 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. That's the kind of long march that's required against the kind of employer who is motivated to fight "all the way." In the meantime, and unless you can find other work, you will suffer a loss of employment and income, so you will 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 fired for reasons unlawful under the Act. The NLRA requires you (the fired person), while you’re off the payroll but fighting against your allegedly unlawful discharge, to make reasonable efforts to “mitigate” (or reduce) your damages. (Think about that - the victim owes a duty to the perpetrator!) That means the law will reduce your back pay award by any amounts that: i) you in fact did earn during the back pay period; or – and here comes the toughest part –ii) even if you don't find another job, the NLRB 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 of those two recoveries, the backpay one, comes with this hitch: an NLRB back pay award will consist of a) your lost pay, plus benefits and seniority, minus b) 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 non-legal (perhaps more social?) costs to your not joining the group activity, right? Are you keeping those in mind? 1. On 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? Might it change the chemistry of the workplace over the longer run? 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 principles . If that's the case for you, fine, but please be sure to explain your thinking. 2. 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? Does life work this way? Is that an ethical approach to your fellow workers? Might there be a cost to this strategy? 3. Is all this talk of “costs and benefits” beside the point for you? Is this largely a moral or ethical 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 any of them, let alone all of them. These questions merely seek to get you launched into your thinking and writing. Write about what YOU think is important. The Great Importance of Good Writing on this Assignment Good writing is a critical requirement for this exercise. Take time to organize your thoughts – please write, edit, and re-write, and then re-write some more. It's normally impossible to produce a good paper from whatever first occurs to us to say. If any of us submits the very first version of what we type, we will probably not deliver college-level writing, unless, of course, one has a supernatural 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 often contributes to a more persuasive utlimate conclusion. On the writing itself, please understand that, along with the content of what we say, the quality and care of our writing are key criteria in the grading. As further detailed in a separate "Writing Tips" document under Canvas "Files" for Class 4, good writing means, for example: ○ Using good sentence and paragraph structure. ○ Following basic rules of style....(Here's one basic rule, from Strunk and White's Elements of Style, that stands out in significance: "Omit Needless Words." Write according to the following promise: "Dear Reader, I won't make you read anything -- not even a word -- unnecessary to my meaning.") ○ Striving to produce an essay that has absolutely no mistakes to distract the reader from your message. (When it comes to proofreading, don’t rely exclusively on “SpellCheck” or “AutoCorrect” – they don’t always check or correct. You might be interested to know that professional proofreaders read a document four times over after the principal author believes it to be “perfect,” and proofreaders ALWAYS catch errors. By the way, each of those four reviews by a professional proofreader concentrates on a different aspect of the writing (organization, then grammar, then punctuation, 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 probably doing all of the right things. Good writing doesn’t happen by itself. 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: In Washington Aluminum, was it an unfair labor practice under the NLRA for the employer to have supplied a frigidly cold workplace to its employees? Did THAT violate the NLRA? That is, did furnishing a very cold workplace violate the NLRA? Or was it something else that was the employer's unfair labor practice? Similarly, in Hendricks County, did it violate the NLRA (that is, did it constitute – in the words of the NLRA -- an “unfair labor practice”) for the Electrical Cooperative to have fired Mr. Hadley because of his physical incapacity? Does our reading teach us that firing Lloyd Hadley violated the NLRA? Or was it something else that constituted the employer’s unfair labor practice? In the employer's conduct, what exactly violated the NLRA in these cases? When you can get the answers to these questions right, you’ve learned something important about how the NLRA works. Good luck and thank you! -END OF INSTRUCTIONS -