\u00a0\u00a0
\nPart C – Case Analysis (62% of the test) \u00a0
\nIn the case below, an employee files a Section 8(a)1 complaint with the NLRB against his employer for firing him. The employer asserts that it has terminated the employee lawfully. After reading the facts of the case, explain what the decision should be (who should win). Also explain any remedies that are needed. Be sure to identify the legal concepts involved and use details from the case to show evidence in support of your position. \u00a0Please limit your analysis to 2-3 double-spaced pages.\u00a0
\nTip \u2013 Consider:
\n1) What is the employee\u2019s argument? \u00a0Why does he think he was fired? \u00a0In his view, which specific provision in the NLRA was broken? \u00a0What does the provision require? Using the NLRA requirements, discuss whether the facts in this case support the employee\u2019s position that his termination constituted an unlawful labor practice. \u00a0
\n2) \u00a0What is the employer\u2019s argument? Why did it fire the employee? Does the NLRA prohibit that reason? Using the NLRA requirements, discuss whether the facts in this case support the employer\u2019s decision to terminate the employee.\u00a0
\n3) As the NLRB judge, who do you think is right? Which side has the right reason, legal framework, and details (evidence) to support its interpretation of the law?\u00a0
\n4) If a violation occurred, what needs to be done to correct it? (This is the remedy.)
\nCar Dealer\u2019s Case
\nOrganization
\nThis company has two dealerships in Springfield, Illinois; one sells trucks, and the other sells luxury cars. Jack, the employee who was fired, began working at the truck dealership in 2002. He changed to the luxury dealership in 2008 where he worked until he was fired in 2014.\u00a0
\nPeople Involved<\/p>\n
Compensation Plan
\nThere are three contributing elements to the pay of the salespersons: the first is a 25-percent commission of the profit derived from the sale of the vehicle, the profit being the difference between the selling price and the cost of the vehicle. The second element is based upon volume; in order to qualify for this bonus, the salesperson must sell 12 cars in a month, including, at least, 2 used cars. The final element is the Customer Satisfaction Index, which is based upon survey questionnaires sent to customers who purchased a car.\u00a0
\nEmployee Handbook
\nThe employee handbook included the following rule:\u00a0
\n(b) Courtesy: Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.
\nFacebook Postings
\nThe event pages are entitled: \u201c(luxury) 2014 5 Series Soiree.\u201d On the first page, Jack posted: \u201cI was happy to see that (dealer) went \u2018All Out\u2019 for the most important launch of a new (luxury car) in years . . . the new 5 series. A car that will generate tens in millions of dollars in revenues for the dealer over the next few years. The small 8 oz bags of chips, and the $2.00 cookie plate from Sam\u2019s Club, and the semi fresh apples and oranges were such a nice touch . . . but to top it all off . . . the Hot Dog Cart. Where our clients could attain an overcooked wiener and a stale bun.\u201d Underneath were comments by Jack\u2019s relatives and friends, followed by Jack\u2019s responses. On the following page there is a picture of Dutch with his arm around the woman serving the hot dogs, and the following page has a picture of Dutch with a hot dog. Page 4 shows the snack table with cookies and fruit. Page 5 shows one of the sales people holding bottles of water, with a comment posted by Jack: \u201cNo, that\u2019s not champagne or wine, it\u2019s 8 oz. water. Pop or soda would be out of the question.\u201d In this photo, a salesperson is seen coveting the rare vintages of water that were available for our guests. Page 6 shows the sign depicting the new luxury 5 Series car with Jack\u2019s comment below: \u201cThis is not a food event. What ever made you realize that?\u201d The final two pages again show the food table and Dutch holding a hot dog.\u00a0
\nThe pictures of the truck accident, as well as Jack\u2019s comments, on the Facebook page were: The caption is \u201cThis is your car: This is your car on drugs.\u201d The first picture shows the car, the front part of which was in the pond. The salesperson with a blanket around her is sitting next to a woman, and a young boy is holding his head. Jack wrote, \u201cThis is what happens when a sales person sitting in the front passenger seat (Former Sales Person, actually) allows a 13 year old boy to get behind the wheel of a 6000 lb. truck built and designed to pretty much drive over anything. The kid drives over his father\u2019s foot and into the pond in all about 4 seconds and destroys a $50,000 truck. OOOPS!\u201d \u00a0There are a number of comments on the first page, one of which was from an employee of the company in the warranty department, stating: \u201cHow did I miss all the fun stuff?\u201d On the second page, under the photo of the car in the pond, Jack wrote: \u201cI love this one . . . The kid\u2019s pulling his hair out . . . Du, what did I do? Oh no, is Mom gonna give me a time out?\u201d Below, there were comments from two of the company\u2019s employees. \u00a0On a separate Facebook page, one of a service advisor employed by the company, there was Jack\u2019s picture of the car in the pond with the service advisor\u2019s own comment: \u201cFinally, some action at our truck store.\u201d
\nSequence of Events
\nUnless otherwise noted, the parties essentially do not dispute these facts. Unless otherwise indicated, all dates referred to here are for 2014.
\n\u00a0\u00a0
\nSometime between \u00a0June 5 and June 9<\/p>\n
All the sales people met in Sam\u2019s office to \u00a0\u00a0discuss the upcoming event. Sam told \u00a0\u00a0them about the event, the incentives being offered, and what was expected of \u00a0\u00a0them. Sam testified that someone asked \u00a0\u00a0about the food but he doesn\u2019t remember what was said. He did say the sales people rolled their \u00a0\u00a0eyes \u201cin amazement.\u201d Jack testified \u00a0\u00a0this scenario: He told Sam, \u201cI can\u2019t believe we\u2019re not doing more for this \u00a0\u00a0event.\u201d Greg said the same thing and added: \u201cThis is a major launch of a new \u00a0\u00a0product and . . . we just don\u2019t understand what the thought is behind it.\u201d \u00a0\u00a0Sam responded: \u201cThis is not a food event.\u201d After the meeting the sales people \u00a0\u00a0spoke more about it and Greg told Jack that at a competing luxury car\u2019s dealership \u00a0\u00a0they served hors d\u2019oeuvres with servers. \u00a0Greg also said, \u201cWe\u2019re the bread and butter \u00a0\u00a0store in the auto park and we\u2019re going to get the hot dog cart.\u201d As to why \u00a0\u00a0this was important, Jack testified: Everything in life is perception. X [ is] \u00a0\u00a0a luxury brand and . . . what I\u2019ve talked about with all my co-workers was \u00a0\u00a0the fact that what they were going to do for this event was absolutely not up \u00a0\u00a0to par with the image of the brand, the ultimate driving machine, a luxury \u00a0\u00a0brand. And we were concerned about the fact that it would . . . affect our \u00a0\u00a0commissions, especially in the sense that it would affect . . . how the \u00a0\u00a0dealership looks and, how it\u2019s presented . . . when somebody walks into our dealership \u00a0\u00a0. . . it\u2019s a beautiful auto park . . . it\u2019s a beautiful place . . . and if \u00a0\u00a0you walk in and you sit down and your waiter serves you a happy meal from \u00a0\u00a0McDonald\u2019s. The two just don\u2019t mix . . . we were very concerned about the \u00a0\u00a0fact . . . that it could potentially affect our bottom line.
\n\u00a0
\nJune 9<\/p>\n
The car promotion event occurred at the \u00a0\u00a0luxury dealer. The car being \u00a0\u00a0introduced was a new model in their \u201cbread and butter\u201d line. The event was significant enough for the \u00a0\u00a0car manufacturers to attend and help sell to the customer. Jack took pictures of the sales people \u00a0\u00a0holding hot dogs, water and Doritos and told them that he was going to post \u00a0\u00a0the pictures on his Facebook page. \u00a0
\n\u00a0
\nJune 14<\/p>\n
At the company\u2019s truck dealership, an \u00a0\u00a0accident occurred. A \u00a0\u00a0salesperson was showing a customer a truck and allowed the customer\u2019s \u00a0\u00a013-year-old son to sit in the driver\u2019s seat of it while the sales person was \u00a0\u00a0in the passenger seat, apparently, with the door open. The customer\u2019s son \u00a0\u00a0must have stepped on the gas pedal; the truck drove down a small embankment, \u00a0\u00a0drove over the foot of the customer into an adjacent pond, and the \u00a0\u00a0salesperson was thrown into the water (but was unharmed, otherwise). Jack was \u00a0\u00a0told of the truck incident and could see it from the facility. He got his \u00a0\u00a0camera and took pictures of the truck in the pond.
\n\u00a0
\nJune 14<\/p>\n
Jack posted comments and pictures of the luxury event \u00a0\u00a0of June 9 as well as the truck accident of June 14 on his Facebook page.\u00a0
\n\u00a0
\nJune 15<\/p>\n
The company representatives had learned of, \u00a0\u00a0and had been given copies of, Jack\u2019s Facebook postings for both the event and \u00a0\u00a0the accident. Sam asked Jack to remove \u00a0\u00a0the postings, which he did.\u00a0
\n\u00a0
\nJune 16<\/p>\n
At Harry\u2019s request, Jack met with him, \u00a0\u00a0Pete, and Sam in a conference room at the dealership to discuss the \u00a0\u00a0postings.\u00a0
\nHarry tossed copies of the Facebook pages \u00a0\u00a0at him and said, \u201cWhat were you thinking?\u201d\u00a0
\nJack responded that it was his Facebook \u00a0\u00a0page and his friends: \u201cIt\u2019s none of \u00a0\u00a0your business.\u201d\u00a0
\nHarry responded, \u201cThat\u2019s what you\u2019re going \u00a0\u00a0to claim?\u201d\u00a0
\nJack affirmed, \u201cThat\u2019s exactly what I\u2019m \u00a0\u00a0going to claim.\u201d\u00a0
\nHarry again asked what he was thinking and \u00a0\u00a0Jack said that he wasn\u2019t thinking anything.\u00a0
\nHarry said that they received calls from two other \u00a0\u00a0dealers and that he thoroughly embarrassed all management and \u201call of your \u00a0\u00a0coworkers and everybody that works at the dealership.\u201d Pete then said, \u201cYou \u00a0\u00a0know, Jack, the photos at the truck dealership are one thing, but the photos \u00a0\u00a0at the luxury dealer, that\u2019s a whole different ball game.\u201d Jack responded \u00a0\u00a0that he understood. Harry then said that they were going to have to think \u00a0\u00a0about what they were going to do with him, and that they would contact him. \u00a0\u00a0Meanwhile, he was told to hand in the key to his desk. On the way out, Jack \u00a0\u00a0told Sam that there was no maliciousness on his part and Sam told him to let \u00a0\u00a0things settle down, and he left.\u00a0
\nAfter he got home, Jack called Pete and apologized for \u00a0\u00a0what had occurred; Pete testified that he does not recall receiving any \u00a0\u00a0apology from Jack. Jack later called Dick and apologized to him as well. Dick told him that he should have \u00a0\u00a0apologized during the meeting with Harry, Pete, and Sam.\u00a0
\nNotes of this June 16 meeting, taken by Pete, state that \u00a0\u00a0the meeting was to discuss: . . . several negative articles on his Facebook \u00a0\u00a0directly pertaining to situations which happened at the dealership. We were alerted to this action by receiving \u00a0\u00a0calls from other truck dealers who saw pictures\/comments (negative) on the \u00a0\u00a0internet. \u00a0Harry showed Jack copies of \u00a0\u00a0the postings and posed the question what was Jack thinking to do such a . . . \u00a0\u00a0thing to the company. (One posting was regarding the accident at truck dealer \u00a0\u00a0when a truck was driven into the lake and the second was surrounding our new \u00a0\u00a05 Series luxury car event.) Harry testified that at the June 16 meeting he \u00a0\u00a0handed Jack the postings and asked why he would do that and Jack said that it \u00a0\u00a0was his Facebook and he could do what he wanted. He ended the meeting by \u00a0\u00a0telling Jack to go home and that they would review this issue and get back to \u00a0\u00a0him.\u00a0
\n\u00a0
\nJune 21<\/p>\n
A meeting of Dick, Bill, Harry, Sam, Pete, and \u00a0\u00a0Bob. Harry later testified that he saw \u00a0\u00a0both postings, but: \u201cI will tell you \u00a0\u00a0that the thing that upset me more than anything else was the truck issues. \u00a0\u00a0The luxury car issue, to me, was somewhat comical, if you will . . . if it \u00a0\u00a0had been that, that would have been it. But, no, it was the truck \u00a0\u00a0issue.\u201d \u201cIt was\u2026making light of an \u00a0\u00a0extremely serious situation\u2026somebody was injured and\u2026doing that would just \u00a0\u00a0not be accepted.\u201d Harry said the \u00a0\u00a0meeting \u201ccentered\u201d on the posting of the accident, \u201cit was 90% of the \u00a0\u00a0discussion. The other one was \u00a0\u00a0mentioned because we had that; but, that\u2019s not why we made a decision to \u00a0\u00a0terminate Jack.\u201d\u00a0
\nSam testified that during the meeting there was \u00a0\u00a0discussion about the June 9 event and the accident, but: \u201cThe basis of the decision to terminate was \u00a0\u00a0the posting of the accident at the truck store.\u201d\u00a0
\n\u00a0
\nJune 22<\/p>\n
Jack was terminated. Jack said Harry told him, \u201cWe all took a \u00a0\u00a0vote and nobody wants you back…and the only thing that we ask is that you \u00a0\u00a0never set foot on the premises.\u201d Jack \u00a0\u00a0said he told Harry that he understood and that was the end of the \u00a0\u00a0conversation. The memo put in Jack\u2019s \u00a0\u00a0personnel file, dated June 22, from Harry, states:\u00a0
\nI told Jack [of the June 21 meeting] . . . that it was \u00a0\u00a0a unanimous decision to terminate his employment because he had made negative \u00a0\u00a0comments about the company in a public forum and had made light on the \u00a0\u00a0internet of a very serious incident (truck had jumped the curbing and ended \u00a0\u00a0up in a pond) that embarrassed the company. I told him that we could not \u00a0\u00a0accept his behavior and he was not to return to work.\u00a0
\n\u00a0
\nNov. 30<\/p>\n
The unfair labor practice charge was filed. \u00a0\u00a0
\n\u00a0
\nJuly 19, 2015<\/p>\n
Bill and Harry sent a memo to all employees \u00a0\u00a0stating:
\nBecause our employee handbook has not been \u00a0\u00a0updated since 2007, we have been in the process of updating and amending it \u00a0\u00a0for several months. We expect to have \u00a0\u00a0the finalized draft to you within the month. \u00a0However in the meantime, please be aware of \u00a0\u00a0the following area in which a significant change is being made. If you have issues relating to these areas \u00a0\u00a0prior to the issuance of the new handbook, please see Harry.
\n–Courtesy — This policy is being rescinded \u00a0\u00a0effective immediately.
\nWhile there may be some additional changes \u00a0\u00a0and\/or additions, the foregoing lets you know, in general terms, where a key \u00a0\u00a0change will be. Again, please let me \u00a0\u00a0know if you have any questions or concerns.\u00a0
\n\u00a0
\nJuly 21, 2015<\/p>\n
At the Administrative Law Judge\u2019s hearing, \u00a0\u00a0the complaint was amended to include: Since at least August 28, 2007, the company has maintained the \u00a0\u00a0Courtesy rule in its employee handbook that contains language that makes it \u00a0\u00a0unlawful. The company defended that \u00a0\u00a0it had already taken care of that issue by rescinding the policy and \u00a0\u00a0notifying the employees.<\/p>\n","protected":false},"excerpt":{"rendered":"
\u00a0\u00a0 Part C – Case Analysis (62% of the test) \u00a0 In the case below, an employee files a Section 8(a)1 complaint with the NLRB\u2026<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[10099,10681,7636,615,10892,10680,10891],"tags":[10553,10616,10254,10896,10897,10247,10295,10898,10893,10894,10895,10899,10551],"class_list":["post-126800","post","type-post","status-publish","format-standard","hentry","category-buy-essay","category-cheap-dissertation-help-online","category-cheap-essay-writer-usa","category-homework-help-writing-service-usa","category-page-paper","category-university-dissertation-writing-service","category-write-my-assignment-ireland","tag-1-assignment-help-online-service-for-students-in-the-usa","tag-australian-best-tutors","tag-can-someone-write-my-assignment-for-me","tag-case-study-in-nursing-writing-a-nursing-case-study-essay","tag-free-nursing-case-studies","tag-help-me-write-my-dissertation","tag-homework-for-you","tag-nursing-case-study-assignment-examples","tag-nursing-case-study-examples","tag-nursing-case-study-presentation-example","tag-nursing-case-study-questions-and-answers","tag-student-nurse-case-study-assignments","tag-write-my-assignment-help-for-college-students"],"_links":{"self":[{"href":"https:\/\/www.studyproessays.com\/help\/wp-json\/wp\/v2\/posts\/126800","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.studyproessays.com\/help\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.studyproessays.com\/help\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.studyproessays.com\/help\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.studyproessays.com\/help\/wp-json\/wp\/v2\/comments?post=126800"}],"version-history":[{"count":0,"href":"https:\/\/www.studyproessays.com\/help\/wp-json\/wp\/v2\/posts\/126800\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.studyproessays.com\/help\/wp-json\/wp\/v2\/media?parent=126800"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.studyproessays.com\/help\/wp-json\/wp\/v2\/categories?post=126800"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.studyproessays.com\/help\/wp-json\/wp\/v2\/tags?post=126800"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}