- Introduction Into the Topic
At the federal level, there are various agencies that are mandated with the power to protect the rights of various groups. One such agency is the National Labor Relations Board. The independent federal agency is responsible for the protection of the rights of the employees. The agency is particularly concerned with matters related to the organization and determination of whether to have collective bargaining institutions in form of unions. The agency is, thus, in place to ensure that the rights of the employees are not violated through prevention and remedying labor practices that are unfair. The practices can either be committed by the private sector employees or by unions (Harrington & Carter, 2014). In the event of such an act that amounts to the violation, the agency is in place to ensure that the cases are heard and decided in a legal and ethical manner and that the necessary remedies are put in place.
Any case involving violation of employees’ rights can be considered from the legal, ethical, and social responsibility lens. From a legal perspective, the action is considered in relation to whether it amounts to a violation of a law or regulation enacted to offer remedies for such cases. Actions are perpetrated that goes against the law, and when they are presented to the ACJ, they are determined on the grounding of the legal principles guiding the area of practice under which it falls (Harrington & Carter, 2014). For instance, through NLRA, there are various practices by employers or unions that have been decided based on the violation or lack thereof of the law.
In terms of ethical considerations, an act can be illegal and at the same time unethical. There are also actions that have no grounding under the law, but they are unethical. Various principles are in place that guides the ethical basis of an act, including positivism, utilitarianism, and ethical relativism. Generally, from an ethical perspective, there is a controversy that surrounds the morality of any action. The reality is founded on the fact that people look at the morality of an action from the different ethical lens and what one might consider unethical might be viewed as being ethical by another individual (Cooper, 2012). However, most cases that involve a violation of the law have an ethical implication.
From the social responsibility perspective, there is a responsibility for individuals and organizations to operate in such a manner that is for the greater good of the environment and society as a whole. Therefore, any action that goes against the standards set for the greatest good of the society amount to a violation of social responsibility. In line with the standards set by the NLRA, any violation amount to failure in the obligation of the individual or organization to operate in a socially responsible manner. Just like the ethical basis of a practice, violation of any section of the NLRA has been an act against socially responsible practice (Cooper, 2012).
NLRB Administrative Law Judges have the mandate of hearing cases that entail unfair labor practice. Section 7 of the National Labor Relations Act (the Act) is the law that protects the rights of the employees to unionize, to join as employees to promote their interests, and to abstain from those kinds of activity. Thus, it is considered illegal for an employer to violate this law by interfering with, restraining, or coercing the workers in exercising the rights protected under this law (Harrington & Carter, 2014). For instance, an employer is to refrain from responding to a union organizing meeting with threats, interrogations, or spying on the activities. The employer should also avoid promising any benefit to the employees to stop them from such actions.
Employees are guaranteed by Section 7 of the Act the;
The right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and the right to refrain from any or all such activities (Starr, 2014, p. 32).
One of the recent violations of the law is the case of medical company Pfizer Inc, a corporation that was found guilty of violating the section of the Act. The employer was found liable of violating the law through imposition on current employees and job applicants, a condition that they would refrain from disclosing, and should maintain confidential information relating to a process of arbitration required of them by the Respondent and in relation to personal arbitrations. Indeed, this was the requirement for their employment or potential punishment, including discharge in case they went public with the terms and conditions of their employment.
The topic is critical to the public as it relates actions by individuals and organizations acting in the interest of the public. It is imperative to have an understanding about how the law affects individuals and organizations providing employment. From the legal, ethical, and the social responsibility point of view, it is important to gain insights into how the practice interferes with the rights of the employees. In administrative law, employers should have insight into the laws that affect their actions, especially when dealing with the employees (Starr, 2014). NLRB Administrative Law is one such law that can have serious ramifications.
- Background Information Regarding Topic
The need to have in place an independent agency with the role of enforcing the labor law in the United States is the basis for the establishment of the National Labor Relations Board (NLRB). The agency entails to the enforcement of the law as relates to collective bargaining and fair practice rights of the employees. The agency has its genesis from the 193-1935 creation of the initial collective bargaining agency, the “National Labor Board” (Fossum, 2014). Under the 1935 National Labor Relations Act, the agency is also responsible for the supervision of labor union elections of representatives and has the authority and powers to scrutinize and remedy labor practices that are considered unfair. Labor practices categorized as unfair are the instances and situations related to union activities.
The governing of the NLRB is the responsibility of a board made up of five members as well as a General Counsel. The appointment of these people is the responsibility of the president but with the Senate’s consent. The nomination of the members of the Board is for a term of five years, while they serve for a term of four years. The Board has the responsibility of acting as an appellate judicial system from ALJ’s decisions. For more information on the agency visit the website: https://www.nlrb.gov/cases-decisions/board-decisions?volume=365&slipnumber_i=&page_number=&order=date_issued&sort=asc
The National Labor Relations Act (“NLRA”) (49 Stat. 449) 29 U.S.C. § 151–169 was enacted by Congress in 1935 with the aim of protecting the rights of the employers and the employees, encouraging collective bargaining, and curtailing some management and private sector labor practices that have the potential for harming the workers’ welfare, as well as the welfare of businesses and the economy of the United States (Starr, 2014). The Act is also known as the Wagner Act after Robert F. Wagner, a New York Senator.
The law has affected various individuals and organizations which have been charged or investigated for unfair practices against their employees. Some have been found guilty of the charges and have had to pay hefty fines and experience other financial ramifications. The NLRB has been revealed to have counted millions of votes cast by members of unions; they have carried out investigations on hundreds of thousands of charges relating to unfair practice, and have made thousands of decisions. These statistics are evident and reveals a critical part of the history of the agency, and the impact on the affected individuals and organization as each of the case involves such. The website includes charts and tables which are a reflection of the work of the agency and data can be downloaded for personal analysis (NLRA, 2016). Figure 1 below indicates the graph on decisions that have been made from 2007 to 2016.
The creation of the law was based on public support for a law to regulate the collective bargaining actions, but at the same time, there were those who were opposed to it. Business groups and the Republicans opposed the law because of the impact it had on their practices. The employers who were sure that the law would affect their practices would not be expected to support it (Fossum, 2014). The main supporters were labor groups. The opponents of the Act initiated various bills to repeal or amend the Act within a decade after it had been passed. The only one that succeeded, however, was the Taft–Hartley amendments in 1947.
The law, however, is effective from the point of view of protecting the interests of the workers. Without such a law, the employers would exploit the workers based on an inadequate legal process to protect their rights. Unionization and collective bargaining are rights that should be enjoyed by all the employees without fear of negative consequences from their employers who are opposed to the practice (Fossum, 2014). The employers understand the economic cost involved in a lawsuit to counter a violation of the act and thus, should work to avoid falling into such problems. The law is effective and simply requires the employers to comply.
- Legal Section
- Introduction to Legal Section
The National Labor Relations Board has been established with a legal mandate to enforce the US labor law. The schedules that fall under the agency are all legal actions, which are executed according to the legal standards. Indeed, this is the reason the actions by Pfizer Inc. amounts to a violation of the law. The NLRB was created by the National Labor Relations Act to help employers and employees in matters relating to unionization and labor disputes (Fossum, 2014). Whenever there is a situation where an employer is reported to the NLRB, the investigation and decisions are made according to the dictates of the National Labor Relations Act, particularly section 7. The ALJs decide the cases on the basis of what the law says. When the case of Pfizer Inc. was brought before the Board, an investigation was carried out and deliberations that took time before the final decision were made. It is plausible to note that the entire process was informed by section 7 of the Act. Hence, the action by the company against the employees amount to a violation of the law.
Rulemaking or Adjudication
For a long time, courts and scholars involved the NLRB to apply its rulemaking power as opposed to depending on exclusive announcement of its legal standards through adjudication. The submission has never been followed, apart from ruling by the Board in 1987 which governed the bargaining unit determination within the context of health care. In the recent past, there has been promulgation of two novel substantive regulations through the notice-and-comment process of rulemaking. The first one was in 2011 when the Board gave a ruling necessitating employer to give notice of the rights of the employees. The rule was enacted with the aim of remedying ignorance of the employee of the rights offered under the NLRA. However, the rule was struck down by the Fourth and District of Columbia Circuits. The Board then withdrew the rule. Again, in 2014, a rule was issued by the Board to have elections of union representation streamlined. In April 2015, the rule came into force, though marred by controversy. The current environment calls the NLRB to use the adjudication process as opposed to rulemaking (Garden, 2014). The rule concerned with the case of Pfizer Inc. was among those established using the due process of adjudication. The due process in the procedure is highlighted by the importance of looking at the rights of the affected persons in the process.
- Statement of Relevant Legal Principles and Rules of Law
The National Labor Relations Act was established in 1935 following enactment by Congress. The bills that established the act were introduced to Congress by Senator Wagner in 1934 and 1935. The legislation was signed into law on July 5, 1935, making it ready for use in guiding decisions relating to violation of the labor law by the employer or union. After the president signed the legislation, it was noticed in the same month. For the information on the law, the notice and publication are all evident from the website https://www.nlrb.gov/resources/national-labor-relations-act. In fact, being in public knowledge, it is possible for any person seeking to understand how it works to obtain the copy and read through. The law, following its passing, notice and publication has played a critical role in the investigation and charging of employers and unions that violate the right of the employees as indicated in the notice. Also, it allows for the defendant the right to be heard before the decision is made.
Due process in the United States is provided under the Fifth and Fourteenth Amendments to the US Constitution. Under the due process clause, the concern is for administering justice and provides the basis for the protection of basic rights from violation by the government external to sanctions of law. The Supreme Court interprets the clauses as offering protections under procedural as well as substantive due processes. In either criminal or civil proceedings, or where the prohibition against violation of right falls under a vague law, it is possible for the court to call upon the due process clause. When applying the Act in protecting the rights of the employees, it can be challenged when there is need to invoke the due process clause, especially when the rights of the Defendant are violated. In a decision that involves any of the due process, the court must begin by examining the constitution, to find out in case the process conflicts the provisions (Fossum, 2014). In regards to the actions assumed by the administrative agency, the decision of the Court is that the due process demands do not necessitate an initial stage hearing as long as the holding of the hearing is done prior to implementing the final order.
The rule can be challenging under the due process clauses from the point of view of possible violation of the rights of either party in the case. The law is controversial from the point of view of all parties in a dispute having fundamental rights. The constitution holds that there are basic rights of all Americans that should not be violated by the State or any other individual, especially those acting operating on the behalf of the state (Garden, 2014). Therefore, it is possible to challenge the rule where it violates the rights of another party in the case, especially in the efforts to protect the rights of another. For example, the law holds that even employers have their rights protected by law. Hence, in the event that the case amounts to a violation of the rights of the employers, then it can be challenged. Evidently, the rights of all the parties in a case should be examined even in an incident where the rule is used, which looks at the rights on the side of the employees.
One of the recent cases involving the rule is the lawsuit filed against Pfizer Inc., a medical company that was accused of initiating a practice that was a violation of the rights of the employees provided under section 7 of the law (Case Number: 07-CA-176035). The employer has provided the employees and applicants with conditions for employment or continued employment. The “agreement” given to the workers infringed on their rights to collective bargaining and to go public with information deemed a violation of the said rights. The company lost the lawsuit as the judges on the bench found the firm to have violated Section 7 of the Act. By imposing the agreement to the employees and applicants, the Respondent had violated the law by requiring them to waive their rights to collective bargaining or complaint before an arbitrator. The confidentiality agreement was also a violation of the law. The employer was, therefore, required to rescind the provisions within the “agreement” and make it known to the employees. The ruling was legal and did not violate the dictates of the due process. The Court was usually in order to try the Defendant and make the ruling that was made. The employer had violated the rights of the employees by requiring them to sign the agreement that went against Section 7 of the law. However, one action might be legal but become controversial when viewed through the ethical lens.
III. Ethics Section
- Introduction to the Ethical Section: Explain to the reader the difference between law and ethics. Define what ethics means.
Explain why government administrators are held to a heightened level of ethical
standards as compared to general business managers
Some feel that law and ethics are the same, explain this thought process called
“legal positivism” and define this ethical theory. Under “legal positivism,” is your rule, regulation or action ethical?
Is “legal positivism” a sound ethical theory for a responsible administrator to
adopt? Debate this in this section of the paper.
- Is your agency rule, regulation or action ethical under the “utilitarianism” ethical
Explain the ethical theory of “utilitarianism” and explain it and how it works.
Explain the groups or individuals affected by this agency’s rule, regulation or
Under Utilitarianism, is your agency rule, regulation or action ethical? Explain
and apply Utilitarianism in your rational when reaching this conclusion.
Do you feel that the agency rule, regulation or action is unethical under
utilitarianism? Why/why not?
- Is your agency rule, regulation or action ethical under the “relativism” ethical theory?
Explain the ethical theory of “ethical relativism” and explain it and how it works.
Explain anywhere geographically in the USA or the world where the agency’s
action would not be ethical under this theory. Explain.
Do you feel that the agency rule, regulation or action would be universally
considered ethical though out the world or just in the USA? Explain using this
ethical relativism theory.
- How do you feel personally—is this agency rule, regulation or action ethical? Explain your
position and logic.
- Social Responsibility Section
- Introduction to Social Responsibility section
- Definition of term “Social Responsibility” and formulation of definitional-principle
- Application of Social Responsibility definitional-principle to the agency’s rule or
- Social Responsibility recommendations to make the agency’s rule or action more
- Social Responsibility Conclusion
- Restatement of Major “3 Value” Conclusions
- Overall Conclusions, Personal Opinions, Recommendations, and Prediction
Cooper, T. L. (2012). The responsible administrator: An approach to ethics for the administrative role. John Wiley & Sons.
Fossum, J. A. (2014). Labor relations. Mcgraw Hill Higher Educat.
Garden, C. (2014). Toward Politically Stable NLRB Lawmaking: Rulemaking vs. Adjudication. Emory LJ, 64, 1469.
Harrington, C. B., & Carter, L. H. (2014). Administrative law and politics: Cases and comments. CQ Press.
Starr, I. (2014). National Labor Relations Act. St. John’s Law Review, 10(2), 32.