Interfering with the Employee’s Right to Unionize and Job Evaluation Based on Seniority Rights

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Read the following case study and respond to the questions below.

The employer sells automotive replacement parts at wholesale from warehouses and distribution centers in the eastern United States. Ms. Fortin began work at the company’s Miami warehouse in 1986, and from that time until her layoff in October 1994, she held a number of customer service positions. Because of her excellent reputation for providing service to customers, she was assigned to staff the Metro-Dade account, a separate account established to provide exclusive service to approximately 24 governmental customers in the metropolitan Dade County area. In 1994, Fortin had been commended for increasing sales in the Metro-Dade account.

On June 1, 1994, Fortin appeared under subpoena to testify on the union’s behalf at a representation hearing concerning the organizational efforts being undertaken at her workplace and was quoted in the Miami Herald as saying the workers “want to better ourselves.”

When she returned to work later that day, she received her first disciplinary warning ever. The employer issued four additional disciplinary warnings to Fortin during June, three within two days of the hearing. The employer also removed an exclusive telephone number with its voice mail capabilities used by the customers of the Metro-Dade County account to reach Fortin directly and ceased the special van deliveries to those customers. Fortin was held accountable for the ensuing decreased sales in that account. Notwithstanding this discipline, Fortin remained one of the union’s most prominent vocal supporters, appearing in a group photo on a union flyer distributed during the campaign, passing out leaflets and petitions, and serving as one of the union’s two observers at the election held on July 7 and 8, 1994.

In early August 1994, her supervisor gave Fortin a negative performance evaluation in which she received an overall rating of “2,” indicating “improvement needed.” On October 27, 1994, Fortin was laid off. Her new supervisor relied on the negative performance evaluation in deciding to lay her off. 

The union charged the employer with an unfair labor practice for fabricating disciplinary actions and a poor performance evaluation and for unlawfully laying off Fortin because of her union activities.

Details of the Case

The employer contended that each of the disciplinary actions it took against Fortin was unrelated to her union activity and that in each case Fortin was disciplined for being away from her workstation and in an area of the warehouse where she did not belong. Furthermore, one of the employer’s outside salesmen told Fortin’s supervisor that customers were complaining of poor service from her. And finally, Fortin’s new supervisor based his layoff decision on her poor performance evaluation and was not even aware of her union activity.

The union contended that Fortin had business reasons to visit the warehouse and had done so routinely in the past and that the employer began to restrict her movements only after it learned of her support for the union. Moreover, other employees were not similarly disciplined, even those employees who were talking to Fortin on the very occasion for which she was disciplined. Given this disparity of treatment and the fact that Fortin’s movements were not restricted before the employer learned of her union activity, the reasonable inference, according to the union, is that Fortin’s union activity was a motivating factor in the employer’s discipline of her.

As to the poor performance evaluation, the union noted that the evaluation covered a one-year period from August 1993 to August 1994, during which time Fortin was selected for the Metro-Dade account and commended for increasing the Metro-Dade sales. If there was any problem with the Metro-Dade account, as noted earlier, the employer caused it by removing the special phone line, voice mail service, and special delivery van dedicated to Metro-Dade customers rather than any fault of Fortin. Finally, because the performance evaluation was based on the employer’s union animus, basing the layoff on it was unlawful, even if the supervisor knew nothing of her union activities. 

1. Do you believe Fortin was the victim of antiunion discrimination by her employer? Why or why not?

2. Fortin’s supervisor had no knowledge of her union activity but laid her off on the basis of her poor performance evaluation. Give reasons why a court should uphold or override the supervisor’s decision.

3. Explain why you think employers still resist unions 70 years after the passage of the National Labor Relations Act.

On October 26, Zelda T., an employee in the pattern department of a synthetic rubber products company, was told she would be laid off for lack of work five days later. This notice, required by the collective bargaining agreement, was intended to give an employee facing idleness an opportunity to look around and see whether there was any other job in the shop that her seniority might give her the right to claim.

Union Contention

Zelda and the union steward did just that, and their attention focused on a small parts assembler job in another department. Zelda had once done that work, so there seemed to be no question about her ability, and she had more seniority than the employee who was performing the job did. Management agreed that the small parts operator job was one Zelda might bump into. There was only one trouble: That job was running out too. The result was that Zelda went on layoff on November 2, as scheduled.

On December 7, while still on layoff, Zelda learned that the small parts operator job opened up, but she wasn’t recalled for it. Instead, management posted the vacancy and invited only men to bid for the job. “Because of production needs, we’re changing the specifications of that job,” the personnel manager explained to the steward. “Whoever does that job will have to handle heavy molds. We’ve got to have a man on that job.” The steward was not convinced, and he became even more skeptical when he saw the man who got the job worked only one day on the heavy work, and spent the rest of the time on ordinary work that Zelda, who had more seniority than the man, might have done.

A grievance was filed, and it finally went to arbitration, where the union argued that the assertion that heavy work required a man was only camouflage to deprive Zelda of her seniority rights. Furthermore, the union argued, management had earlier agreed that Zelda could bump the small parts operator, and it was too late to take a different position now.

Management hotly rejected the accusations. “Everything we did was in good faith,” the industrial relations director said. “When we said Zelda was fit to do the work, she was. Later, the heavy work came in and we had to have a man on the job, even if the heavy aspect of the job wasn’t a daily occurrence.” 

1. Do you take this award to mean that if Zelda had been able to bump into the job in question, she might still have been removed from it later when management decided to add heavy work to the job requirements?

2. Under some contracts, management has broad authority to change the content of jobs. Under other contracts, managerial prerogatives in this respect are much more restricted. What impression do you get from the award on this company’s authority to alter job context? Do you think the “management rights” clause here was broad or narrow?