UNIVERSITY OF MISSISSIPPI
SCHOOL OF LAW
LABOR LAW
Professor Secunda
FINAL EXAM
Date: December 9, 2004 Time Allowed: 3 Hours, 30 minutes
Instructions
1. This is an open book examination. You may refer to any materials.
2. Please "sign" the following pledge by writing your examination number on the line after the pledge. DO NOT write your name on this examination or on any bluebook.
By the act of submitting my examination, I do pledge, on my honor, that I
have neither given nor received any improper assistance and that I will
report any improper assistance given or received by others of which I am
aware.
Exam No. ______________
3. No examinations may leave the examination room. Return your examination to the front of the room at the end of the examination.
4. The first thirty (30) minutes of the examination is recommended for the purpose of reading over the examination and organizing your thoughts.
GOOD LUCK AND HAVE A GREAT WINTER HOLIDAY!
DO NOT TURN TO THE NEXT PAGE UNTIL INSTRUCTED
THREE QUESTIONS (100 Points Total)
QUESTION ONE (One Hour; 35 points)
Mr. Crab finally went too far. Known for his obsessive concern for money and lack of concern for his employees' welfare, the owner of the Krusty Krab, and inventor of the famous crabby patty, finally caused his two loyal full-time employees at the Krusty Krab, Mr. Squidword and Spongebob Squarepants, to consider forming a union.
Squidword and Spongebob conferred with their friend, Patrick
the Starfish, a professional union organizer, about getting a union at the
Krusty Krab. Patrick handed them a stack
of leaflets which read, "Enough is enough! It’s time to organize the
Krusty Krab! Please support our campaign.
Underwater Crusty Restaurants Association of
In response to this organizational campaign, Mr. Crab handed out his own leaflets to the public. Crab's circular read, "Don't trust Patrick and UCRABB. They have put other restaurants out of business in Bikini Bottom and they will cause the Krusty Krab to close as well!" Of course, not fond of the truth, Mr. Crab's statement is an out-and-out lie, as there has never been a UCRABB union present in Bikini Bottom before this time.
Because Spongebob and Squidword are the only employees, they are easily able to show 100% interest through authorization cards and demand that Mr. Crab recognize UCRABB as their exclusive representative for purposes of collective bargaining with the Krusty Krab. Mr. Crab adamantly refused.
Not deterred, Spongebob and Squidword started a picket line during non-work time, outside the restaurant to support their organizational efforts. Spongebob's sign read: "Don't patronize the Krusty Krab until it voluntarily recognizes UCRABB." Squidword's sign was more to the point and read, "Crabby Patties stink! They are made with Plankton Meat! Don't eat them!" Mr. Crab docked Squidword one week pay for his sign.
After 25 days of Mr. Crab's refusing to budge, UCRABB filed an election petition with the NLRB and also filed unfair labor practice charges under the NLRA alleging, among other things, that Mr. Crab's election campaign was unfair and that he should have had to file an election petition himself if he is was unwilling to voluntary recognize UCRABB.
The next day, Spongebob and Squidword didn't report to work and picketed all day. Mr. Crab immediately permanently replaced them with Plankton and Sandy the Squirrel. In order to lure Plankton and Sandy the Squirrel, Mr. Crab promised them super-seniority so that they would be able to keep their jobs even after the strike was over. Subsequently, Spongebob and Squidword stopped striking and asked for reinstatement into their old jobs. Mr. Crab laughed and walked away. A day later, Sandy the Squirrel left for Texas and Spongebob again asked for his job back, but Mr. Crab refused.
A. Please discuss all labor law issues raised by this fact pattern. Please remember to discuss all potential remedies as part of your answer.
B. If there is another Krusty Krab location owned by Mr. Crab in Fish Town (about 10 miles south of Bikini Bottom), could these Fish Town restaurant workers be in the same UCRABB bargaining unit with Squidword and Spongebob?
QUESTION TWO (One Hour; 35 points)
Assume now that UCRABB is eventually designated as the exclusive representative of all Krusty Krab restaurant workers in Bikini Bottom. In bargaining the Krusty Krab's first collective bargaining contract with UCRABB, Mr. Crab presents all of his proposals at once, and says that although he is willing to listen to counter-proposals, he likely will not budge on his proposals. Some of his more controversial proposals include: insisting that all Krusty Krab employees give generously to the political campaign of Mayor Flounder; that all employees pledge to vote against Patrick the Starfish if he runs for president of UCRABB; and that all employees accept a 50 cent per hour wage cut.
Not only does UCRABB find these demands absurd, but to show his displeasure, Patrick places a phone call to Larry the Lobster, the president of Bikini Bottom Buns (BBB), a company that supplies the hamburger buns for those delicious crabby patties. Patrick asks Larry if BBB would stop doing business with the Krusty Krab until Mr. Crab concludes a collective bargaining agreement with UCRABB. Larry politely declines. Nevertheless, when the Krusty Krab sends its truck to BBB to pick up its buns, UCRABB members picket on BBB property around the Krusty Krab truck with signs to indicate their displeasure with Mr. Crab and the Krusty Krab.
In order to put even further economic pressure on Mr. Crab, Patrick tells Squidword and Spongebob to make things "difficult" for the restaurant by coming in to work late, by being less productive while on the job, and by refusing to work overtime. As a result of this conduct, Mr. Crab fires Squidword and Spongebob for insubordination, refuses to bargain any further with UCRABB, and, in an agreement with Larry the Lobster, uses BBB's employees to do the work that Squidword and Spongebob were doing previously. Subsequently, UCRABB also pickets outside of BBB's headquarters.
A. Please discuss all labor law issues raised by this fact pattern. Please remember to discuss all potential remedies as part of your answer.
B. If the parties had bargained to impasse, could Mr. Crab have unilaterally implemented a wage cut of 25 cents per hour?
C. Let's assume that a collective bargaining agreement is eventually entered into between UCRABB and the Krusty Krab. As part of this agreement, there is a standard arbitration clause which requires the parties to submit all of their labor disputes to binding arbitration. If Mr. Crab thereafter refuses to process a grievance filed by UCRABB on behalf of Spongebob, what options does UCRABB have?
D. If Mr. Crab subsequently agrees to arbitrate the grievance and the arbitrator rules in favor of Mr. Crab, what additional steps can UCRABB take on behalf of Spongebob if it is unhappy with the arbitrator's decision?
QUESTION THREE (One Hour; 30 points)
Comment critically on the following statement:
"It would seem logical . . . that a major aim of [National Relations Labor Board] action should be the prevention of employer interference with the employees' collective right to self-organization. The remedial philosophy as it has evolved, however, is heavily oriented toward the repair of harm inflicted on individual victims of antiunion actions by employers. "
Paul
Weiler, Promises to Keep: Securing
Workers' Rights to Self-Organization Under
the NLRA, 96 Harv. L. Rev. 1769, 1787 (1983).
In your answer, you should discuss the following: What is
the current state of labor law doctrine in this area? Do you favor changing or retaining the
present legal rules? What arguments
support your position, and what is your response to the best argument that
could be made in opposition? Integrate
cases, statutes, and policy arguments in supporting your answer.