Briefly analyze whether any of the conduct described below violates any laws that we have studied in this class thus far. In addition, note that Paragraph 10 below requires some outside research. Your analysis should identify the specific legal issues and related laws implicated by the fact pattern. Please address each paragraph in the order in which it appears, inserting the number of the paragraph as a heading or in the first line of the discussion related to that paragraph.
Well Again Services (WAS) is a nonunion employer that provides inpatient and outpatient rehabilitation services at various facilities in Iowa, most of them in the greater Des Moines area, where it employs 125 employees in total.
- Debra and Dolores, Certified Nursing Assistants (CNA) at the largest Des Moines facility, complained to their supervisor, Letitia, about CNA patient loads. Letitia dismissed their concerns and instructed them not to discuss their complaints with any other employees. She also told them that if they didn’t like their jobs or her directives, they were free to look for work elsewhere.
- That night, Debra and Dolores aired their work load complaints on their Facebook pages, which are viewable only by their “Facebook Friends.” They also criticized Letitia’s unwillingness to take the issue seriously, which they said was unfair to staff as well as patients, and would inevitably result in lower-quality care. About 20 of their Facebook friends, all coworkers, “Liked” the posts. Ten coworkers posted comments in support of Debra and Dolores, some of them using vulgar language. Letitia didn’t see any of the material until an hourly employee, a Facebook Friend of both Debra and Dolores, showed it to her. Letitia then called Debra and Dolores into her office and fired them for violating her instructions and for posting material that was both offensive and damaging to WAS.
- Other WAS employees then contacted the Nursing Employees of America (NEOA) to find out how to organize a union. When Letitia overheard employees talking about the NEOA in the employee locker room, she made it clear that unionization was not to be discussed anywhere in the facility and ordered the employees to remove the NEOA literature that was sitting on a table inside the employee locker room.
- Pursuant to Letitia’s request, the HR department scheduled a meeting of all hourly employees, who were ordered to attend on pain of discharge. At the meeting, Letitia told the employees that unionizing was a really bad idea, one that would be counterproductive to everyone’s interests. When an employee asked why that was so, Letitia said that WAS had planned to announce across the board pay raises, but if the union campaign continued, that plan would be cancelled and employees would just have to hope that a union would be able to bargain something worthwhile – assuming that it won an election.
- As it happened, several weeks later, WAS purchased a company that operated a nursing facility in Cedar Rapids, one that had been organized by the NEOA some years ago and had a collective bargaining agreement set to expire in 60 days. WAS hired management consultant William (Bill) Jones to handle the Cedar Rapids negotiations. At the first bargaining session, Bill told the union that because he had to be in Detroit for an important project, they only had 2 months to negotiate a new contract. In that meeting, Bill gave the NEOA the company’s proposals to trim back wages and said that he would send the union the rest of the company proposals within the week. Two days later, Bill told the NEOA that WAS had terminated the existing pension plan and replaced it with a 401(k) plan.
- The next day, the NEOA representative sent Bill an email, protesting the pension plan termination, demanding bargaining over pension and 401(k) issues, requesting a copy of the 401(k) plan that WAS had created, and attaching a copy of an unfair labor practice (ULP) charge that the NEOA had filed with the National Labor Relations Board.
- Upon receipt of that email, WAS cancelled the remaining bargaining sessions, and implemented its new wage plan, as well as all of the other changes that it had intended to propose for the new contract. In its view, the filing of the ULP charge showed that the parties were at an impasse.
- Meanwhile, there was a walk out at the WAS central kitchen facility that prepares the food for the Des Moines area rehab and nursing homes. After a series of malfunctions, several appliances shorted out that morning, filling the kitchen with smoke and a burning odor. Stanley, the supervisor, immediately called an electrician, who promised to swing by the next day. But the employees, three of whom had suffered burns during the chaos, refused to continue working in the circumstances. While they were milling around the parking lot, a rumor started that Stan was going to fire them. In fact, Stan, who was new to his position, was unsure how to proceed. He was also trying to recall what he was supposed to do if someone was injured on the job.
- When an OSHA inspector showed up with a search warrant the following week, Stan refused to let her in and told her that she should call the WAS main office and make an appointment for a day and time convenient for WAS corporate counsel.
- Last, but not least, Elena, one of the employees who had suffered burns during the kitchen appliance incident, developed a serious infection that left her unable to work for 2 weeks. When Elena asked for FMLA leave, she was told it was not available for work-related injuries and that she would be permanently replaced if she didn’t report for work as scheduled. She then tried to file for workers’ compensation benefits but found out that WAS’s workers’ compensation insurance policy had lapsed the previous year, and the company had not made any arrangements for self-insurance under state law. What, she wondered, did that mean for her, and what consequences might it have for WAS?