You are a mid-level manager at Pacific-Oregon University (POU), a large private university, and have been asked to provide your boss, department director Pat Grey, with advice on several situations currently facing the department. Pat knows that you have recently completed a course in employment law, and asks that you identify what legal questions are present in each situation, what legal principles are relevant to the situation, and what course of action you recommend the boss take.
Please prepare your response to Pat in a memo that addresses all situations presented below. Be sure that your response references relevant legal principles, applies them correctly, and provides a recommendation that is consistent with the legal principles. Finally, be sure that your response is precise, concise, simple and clear in content, and that it employs proper grammar, spelling, sentence construction and other principles of good writing.
Additionally, complete a Due Diligence Worksheet for this week's assignment.
Situation #6-1: Union organizational activity and negotiations
Some faculty members in the department have considered forming a union, and Pat Grey is thinking about what to do if a union organizing campaign actually starts. One school of thought advocated by some managers is to quietly let the union form and thereafter negotiate a contract. Then, when the "new" has worn off the union process after a couple of months, Pat believes that it would be possible to initiate a de-certification election that would show the majority of faculty member don't really want a union. Pat believes that the union could form, and then be decertified, all within less than a year. Pat asks you if this strategy is legal and if it makes sense, given current U.S. statutory and case law, and how that law has trended over the last century.
As you prepare a response to Pat, you consider the key labor law principles that you need to address in your reply. Your memo to Pat should consider (but not necessarily be limited to):
a. An explanation of how the labor movement and labor laws have brought us to the situation we are in today;
b. An analysis of the legal implications of union organizing and other protected activities; and
c. An explanation of the concept of "bargaining in good faith" and how it applies to this situation.
Situation #6-2: Faculty selection procedures
The department also faces a situation regarding how faculty members are selected. The situation is illustrated succinctly by Lucy, an applicant for a faculty position. Lucy was one of a group of 50 who went through the selection process. The 40 men who went through it were happy when the selection process ended and talked about careers, but the 10 women seemed unsure and were much quieter. Only 30 applicants successfully completed the process, including 4 women.
Lucy has threatened to bring legal action claiming gender discrimination on the theory of disparate impact of the process. Pat believes that because the selection process utilizes objective measurement criteria (e.g., undergraduate GPA, graduate GPA and these test scores), Lucy cannot prevail in a claim of gender discrimination. Other mid-level managers have been concerned, however, that even though the measurement criteria are objective, the lower success rate of females leaves the University open to successful claim of disparate impact on the female applicants. Other managers argue that applicants can not even bring a claim, because they are not "employees" yet within the meaning of EEO statutes, and can't file legal action. Pat asks that you identify relevant legal principles, and apply them to the facts presented here.
As you think about Pat's request, you make mental notes about what you need to include in this part of your reply memo:
a. An analysis of techniques for investigating and resolving employee grievances and complaints, and how these techniques would be specifically applied in investigations requiring contact with job applicants as compared and contrasted to investigations involving current employees.
Situation #6-3: Unionizing
The faculty of POU did, in fact, form a union and are preparing to negotiate a contract with the University. The union finds that it has no active member who has experience negotiating labor-management contracts, and hires retired professor Ima Meeny as a negotiations consultant. Dr. Meeny was a long-time union activist at the nearby state university, and will bring her expertise to the bargaining table. Thinking that there may be a weakness in selecting Dr. Meeny, who has experience only in the public sector, to negotiate with POU in the private sector, Pat Grey asks you if there are differences in the way that labor law and labor relations is applied in the public versus private sector.
Pat Grey also asks that you quietly conduct research regarding (a) the issues that Dr. Meeny was most focused on during her negotiations with the state university; (b) what restrictions the Union might successfully enforce to limit POU's current employment practices that permit the conduct of polygraph, drug and AIDS testing for new employees; and (c) if POU can legally refuse to negotiate because Dr. Meeny is not an employee of POU and therefore might not be allowed to participate because she is an outsider.
As you read this, you make mental notes about what you need to cover in your reply. This part of your memo should consider the following topics:
a. How you would compare and contrast labor relations in the public sector vs. the private sector and how that applies to this case;
b. An analysis of the legal implications of union organizing and other protected activities; and
c. Your evaluation of potential legal pitfalls of polygraph, drug, AIDS and genetic testing
Situation # 6-4: Termination Agreements and Covenants not to Compete
Pat Grey has brought to your attention the matter of one member of the faculty who has informed POU that she intends to resign from the faculty and relocate to another part of the nation. This faculty member, Dr. Claudia Peppah, explains that she is relocating because her primary employer has offered her a promotion to another job in her employer's company, and she is not interested in simply transferring to another POU campus elsewhere in the U.S. She doesn't plan to continue teaching on a part-time basis, at least for now.
However, Dr. Peppah says that she will not agree to sign an agreement that prohibits her from teaching in any other higher education institution at her new work location, and POU is not willing to release her company-held stock to her until she does sign such an agreement. Dr. Peppah has indicated that she is prepared to sue POU for breach of contract for not releasing her company-held stock, which was credited to her account as part of her compensation when she served as a faculty member. Pat Grey, ever mindful of your coursework in employment law, has asked you to provide her with a recommendation about how the law will view the termination agreement and covenant not to compete, and whether POU will likely prevail if the case goes to court. Pat is also concerned about the hostility that is building in the situation, and wants you to explain what Pat may and may not say to any prospective employer of Dr. Peppah who may contact Pat asking for information on Dr. Peppah's skills and history while at POU. Finally, Pat is worried that Dr. Peppah has specific knowledge of current POU research efforts, and wants to know how POU can restrict Dr. Peppah from utilizing the proprietary knowledge that has been gained during tenure with POU. You make a mental note never to tell Pat Grey what courses you are taking ever again, but agree to provide the information requested.
As you prepare your memo to Pat, you make mental notes about how to incorporate the relevant legal principles into your response:
a. What criteria do you use to evaluate discipline processes and grievance procedures in situations like this?
b. What are the elements of effective termination agreements and covenants not to compete, and what are the most effective attributes of each element?
c. Explore possible employment actions that may lead to claims of defamation or invasion of privacy (Employment references, pending criminal claims) and relate those actions to the instant case; and
d. Analyze methods employers may use for the protection of proprietary information and intellectual property (common law duty of loyalty).
As you know, BrainMass is not an assignment-completion service. This response is meant to assist you in tackling your questions and to help you learn the material needed to understand the problems.
To: Pat Grey
Subject: Applications of employment law.
Activities and Negotiation of Organizational Unions
Labor movement and labor laws have created various issues for the employers. The labor movement affects the employer in two ways: economically and non-economically. Economically, the unions focus on wage, salary and other benefits to the employees and non-economically, the unions focus on the issues related to job security, work environment, quality of work life, etc. Different labor laws have been created to support the unions. In the present situation, the unions can only be decertified, if the management gets success to achieve more votes against the union (Fisher, Schoenfeldt & Shaw, 2004).
The decertification of the union is legal but the management or the members of the union who want to decertify the union should have enough support and the majority of votes in order to decertify the union. Some legislation has been formed to certify and decertify the workers unions. Various acts, such as National Labor Relation Act, Wagner Act, Taft-Hartley Act, Labor Management Relation Act, etc. provide the complete authority to the unions to be formed and ask for their right to the management. These labor laws have strengthened the workers that have led to the situation.
The labor management activities have been promoted by the federal government. The unions are organized under the Trade Union Act. This act proves the authenticity of the union. Various protected activities are performed by the unions. Some of the activities are legally authentic. First of all, the union documents the labor practices. If there is no bargaining between management and union, they have the right to protest unfair labor practices. National Labor Relation Board (NLRB) provides support to the unions in getting their rights. One of the first phases of protected activities is the worker's strike when management is not ready for the elections. The legal implications of the unions can be seen in recognition strike, job enrichment and matters of salary & benefits (Simmons, 1994).
Good faith bargaining is based on The Employment Relations Act 2000. This concept provides the basis to reach an agreement after the collective bargaining of management and employees. The responses to the proposals are given by both the parties. The activities related to the bargaining process should not destruct the operations of other party. A collective agreement between the management and the employees should be formulated as a result of the bargaining in good faith. There should not be any dispute related to the bargaining free clause (Good Faith in Collective Bargaining, 2005). Good faith bargaining can be applied in the Pat's situation by conducting an ethical collective bargaining.
A grievance is a sign of an employee or applicant's discontent, either with the job or the organization. The gap between the employee expectations and organizational rewards normally leads to a grievance. In the present situation, some of the female job applicants think that they have not been selected because of the gender discrimination. It is not the fact, the selection criteria was based on total grading in educational qualifications and test score. One of the female applicants Lucy can claim for a legal action against the management of the company. The employee of an organization as well as the applicant has a right to file a complaint against the management of the company (Fisher, Schoenfeldt & Shaw, 2004).
Equal Employment Opportunity Commission (EEOC) provide the facility to both the employees and job applicants to file a complaint, if there is some discrimination on the basis of gender, religion, race, ethnicity, nationality, etc. There is no necessity to file a complaint at EEOC that the person should be an employee of the organization. If a person has faced some sorts of discrimination, he or she can directly approach to EEOC. The EEOC can take related actions against the company, if the case of discrimination is proved authentic. So there should some sorts of policies or strategies that prevent the company from these types of problems (Legal Issue).
EEOC is not the only commission to deal with these types of matters. State Human Rights Commission can also take actions on ...
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