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Стадія виконання судового рішення у справах про індивідуальні трудові спори передбачає, що уповноважена сторона має його виконати. Так, якщо суд поновлює працівника на роботі, роботодавець має видати відповідний наказ. І якщо сторона зволікатиме, час невиконання рішення суду може трактуватись як вимушений прогул (ст. 236 КЗпПУ), а відтак, роботодавець у подальшому буде змушений його оплатити, водночас стягнувши кошти з працівника (службової особи), яка винна в незаконному звільненні (ст. 237 КЗпПУ).
Якщо уповноважена сторона відмовляється виконати рішення суду, його виконання можливе у примусовому порядку за правилами, встановленими законами України «Про державну виконавчу службу» та «Про виконавче провадження».
Listening 11. DISCRIMINATION. THE PARKHIRST TALKABOUT.
Listen to the discussion of the Sex Discrimination Act, prepare three questions to each participant, act out the interview in pairs.
In groups, choose any entry. Do the figures surprise you? Discuss your views with other groups.
| Men and Women: various comparisons – Great Britain | ||
| Men | Women | |
| Life expectancy (years) Average weekly earnings Average weekly hours Percentage of all Employed work force Unemployed Trade Unionists Members of Parliament Members of House of Lords Civil Servants Drug Addicts Prison Population Bank Managers Directors Solicitors University Graduates University Students Credit Card Holders | 77.2 £124.50 64.5 | 81.6 £78.80 35.5 |
Source: The Guinness Pocket of Facts.
Reading 3. A SEX DISCRIMINATION CASE
In the UK, the law provides for sex-discrimination cases to be brought before an employment tribunal, which has the power to award compensation to the claimant. If the tribunal decides that the law has been broken, it can award compensation for financial loss, as well as for injury to feelings or health, which has been suffered as a result of the discriminatory treatment. Furthermore, a tribunal may also award aggravated damages if injury to feelings has been made worse by the manner in which the discrimination has been carried out. In certain circumstances, the tribunal may even order exemplary damages in order to punish the respondent.
The following article provides information about the outcome of a case heard by an employment tribunal.
Ex. 1. Quickly scan the article and decide which is the most appropriate headline.
1. LAWYERS FINED BY TRIBUNAL FOR DISCRIMINATORY BEHAVIOUR
2. HIGH AWARD OF DAMAGES IN DISCRIMINATION CASE
3. TRIBUNAL HEARS CONTROVERSIAL DISMISSAL CASE
Ex. 2. Read through the article more carefully and answer the questions below.
Solicitors are not immune from employment law cases being brought against them; in what is being heralded as a landmark case, a tribunal has awarded two female former employees of the London firm Sinclair, Roche and Temperley awards totaling £900,000. The employees successfully claimed that they were victims of sex discrimination and, in particular, that the discriminatory culture pervading the firm prevented women from becoming senior equity partners.
An interesting feature of the case is that the tribunal found that the way in which a partner at the firm behaved during the litigation was malicious and designed to discredit one of the applicants without having any real, foundation. In consequence, the tribunal imposed £3,000 extra aggravated damages. Such awards encourage caution in the way in which proceedings are defended.
1. Who do you think the text was written for?
2. What was the case about? Who were the claimants, and who were the defendants?
3. What is a 'landmark case'?
4. According to the claimants, what prevented them from becoming senior partners at their firm?
5. Why were extra damages imposed on the defendants?
6. What does the text say about the effect that the award of extra-aggravated damages would likely have on future proceedings of this kind?
7. Explain what you think is meant by a discriminatory culture at a law firm.
Listening 12. LIABILITY RISKS
Lawyers often advise their clients how to avoid claims arising from work-related disputes, such as the one discussed in reading 3, by informing them of potential risks.
In the following interview, a lawyer (Ms Brewer) tells her clients (Mr. and Ms Howard), who are business owners and employers, about the liability risk associated with drug testing in the workplace.
Ex. 3. Listen to the interview and decide whether these statements are true or false.
1. Mr. Howard says that the drug problem at his company is affecting business.
2. Ms. Brewer informs her clients that the issue of employee drug testing is an unsettled area of the law.
3. If they dismiss a worker on the basis of a drug test that reveals the worker has taken drugs, Mr. and Mrs. Howard risk being sued for infringing employees' rights.
4. Ms. Brewer points out that under certain circumstances, the courts have decided that employers were entitled to dismiss an employee for work related drug use.
5. Ms. Brewer recommends laying off the workers suspected of consuming illegal drugs in the workplace.
Speaking. AGREEING AND DISAGREEING
Ex. 4. Using the phrases for agreeing and disagreeing presented above, discuss these statements with a partner.
1. Sex discrimination cases will decline as women are now enjoying more equality in the workplace.
2. Drug testing in the workplace is an infringement of an individual's right to privacy, a right which the courts should continue to protect.
3. It is an employer's responsibility to help its employees overcome problems with addiction or substance abuse.
4. Women should be able to resume their careers where they left off after taking time off to bring up a family.
Ex. 5. The article is divided into three parts. Read the three headings. Which of the three sections do you think primarily contains opinions and attitudes?
Ex. 6. Look at the first section of the text. Underline the explanation of how employment tribunals work, as well as the four adjectives describing the new arbitration scheme.
Ex. 7. Read the whole text. Whose opinions of the arbitration procedure are reported? Why does the writer describe the introduction of the new scheme as ironic?
DETERMINING UNFAIR DISMISSAL CASES BY ARBITRATION
Since 21 May 2001, a voluntary arbitration procedure in unfair dismissal cases has been available to employers and employees in England and Wales as an alternative to the traditional way of resolving such cases via employment tribunals.
Compared with a public hearing in front of a three-member employment tribunal, with a legally qualified chairperson, involving the cross-examination of witnesses and, in the vast majority of cases, the involvement of legal representatives, the new arbitration scheme, administered by the Advisory, Conciliation and Arbitration Service (ACAS), is intended to be 'speedy, informal, confidential [and] non-legalistic'.
Key features of the scheme
There are significant differences between the new arbitration scheme and the conventional employment-tribunal process. The key features of the ACAS arbitration scheme are as follows:
The scheme is entirely voluntary and is available only in respect of unfair dismissal claims. It can be used only where both parties agree to it and waive certain rights they would have at an employment tribunal.
Hearings will be held in private in such places as an ACAS office or a hotel and will normally be completed within half a day. Written statements of their case may be submitted by the parties in advance.
The case will be heard by an experienced arbitrator, 'chosen by ACAS, not the parties themselves. Legal representatives may be used by the parties.
There is no set format for the hearing. Arbitrators have a general duty to act fairly and impartially between the parties, giving each party a reasonable opportunity to plead his or her case and respond to that of the other party. The process is intended to be 'inquisitorial' or 'investigative', rather than adversarial as in tribunal hearings - no cross-examination will take place.
Each party covers their own costs in attending the hearing. However, if a dismissal is found to be unfair, the arbitrator can include in the calculation of any compensation a sum to cover the costs incurred by the employee in attending the hearing.
Arbitrators are required to apply EC law and the Human Rights Acts 1998 (on which a legal adviser may be appointed to provide guidance), but otherwise, instead of applying strict legal tests and case law, the arbitrator's decision will have regard to 'general principles of fairness and good conduct in employment relations'.
As with unfair dismissal cases determined by an employment tribunal, reinstatement, reengagement and compensation are the available remedies if the dismissal is not upheld. Unlike tribunal cases, however, the award is confidential to ACAS and the parties, and the arbitrator's decision will be final and binding.
There is only very limited scope for appealing or challenging the arbitrator's award.
Commentary.
It remains to be seen what impact the new arrangements will have. Lawyers and other commentators are uncertain about the merits and likely attractiveness of the new scheme. Some have expressed concern that, because the criteria for arbitrators' decisions ('general principles of fairness and good conduct in employment relations') differ from the statutory tests applied by the tribunals, a 'two-tier' system of justice may develop. It has also been suggested that the arbitration scheme offers employers and employees less certainty of outcome, and that the confidentiality of awards may mask variable standards within the arbitration scheme.
Some lawyers think that the confidentiality of proceedings under the arbitration scheme may be a significant attraction to employers who want to avoid the damaging publicity sometimes associated with tribunal cases. Conversely, however, some lawyers predict that the fact that the process is private may make arbitration less attractive to dismissed employees. According to this view, arbitration lacks the 'embarrassment value' of public tribunal hearings, which may lead to favourable out-of-court settlements for dismissed employees. The limited grounds for appealing against an arbitrator's decision are considered a disadvantage for employers.
The irony of the new arbitration scheme is that employment tribunals were themselves intended as an 'easily accessible, informal speedy and inexpensive' alternative to the ordinary courts for dealing with individual employment disputes when the UK's unfair dismissals legislation was first introduced 30 years ago.
Ex. 8. Read the article again and decide whether these statements are true or false.
1. Arbitration is intended to be faster and less formal than the traditional process of resolving employment disputes.
2. In the arbitration scheme, parties will not be questioned by the other party's representative.
3. In reaching a decision, an arbitrator is obliged to apply case law and legal tests.
4. Some lawyers fear that arbitration will lead to double standards in the resolution of employment disputes.
5. The confidentiality of arbitration appeals to those who have been dismissed from work, as it causes less embarrassment.
6. Employers regard the fact that it is difficult to appeal a decision made by an arbitrator to be a considerable advantage of the arbitration system.
Ex. 9. Match these adjectives from the text (1 - 5) with their synonyms (a - e).
| 1. voluntary 2. key 3. vast | a) huge b) traditional c) private | 4. confidential 5. conventional | d) important e) optional |
Ex. 10. Match these verbs (1 - 6) with their definitions (a - f). The verbs are in italics in the article.
| 1. to waive 2. to hear 3. to plead 4. to apply 5. to appeal 6. to challenge | a) to formally request that a decision of an inferior body be reviewed by a superior one b) to argue a case in court c) to give something up d) to make use of something (when deciding a case) e) to question something f) to listen to a case at a relatively formal proceeding |
Ex. 11. Match the verbs (1-6) with the nouns in the box that they collocate with in the article. Some of the nouns go with more than one verb.
| an award a law a case rights |
1. to hear 2. to waive 3. to plead
4. to apply 5. to appeal 6. to challenge
Can you add any more?
Ex. 12. How does the arbitration procedure described in the text compare with the arbitration system used for handling employment disputes in your jurisdiction?
Ex. 13. The sentences in the following text have been jumbled. Arrange them in an appropriate order.
Answer the following questions to the previous text.
Ex. 14. Look at the headings from two newspaper articles. Then organize the sections below to re-construct the two articles about sackings which lead to legal problems.
| Worker sacked over Bermuda shorts loses case | Man ‘sacked for working too hard’ wins his job back |
A A French man who was sacked for wearing Bermuda shorts at work has lost a case for unfair dismissal. Cedric Monribot was
B A man who claimed he was sacked for working too hard has won his job back. The Australian Industrial Relations Commission ruled Geoffry Scott’s dismissal was harsh
C tribunal found there were no grounds to his case because he had not suffered any legitimate form of discrimination. He told
D treated. Mr. Scott said he was relieved by the outcome of the case and that he expected to return to work in the next fortnight. Centrelink national manager Hank Jongen said that his company
E a local radio station that he would appeal against the ruling announced by Tribunal President Catherine Leverbe.
F technician argued that under French law his sacking was ‘abusive and challenging to individual liberty’. However, an employment
G and unreasonable. Union leaders had claimed he was sacked from the Centrelink agency for helping out colleagues and clients when the office was busy. The 34-year-old was sacked
H from the company’s Wollongong office in December for continually disobeying instructions not to help his fellow workers. The commission ruled that he was unfairly
I sacked from a company called Sagem for refusing to wear trousers at work despite several warnings. The 29-year-old
J was disappointed the court had failed to support their decision to dismiss a worker for disobeying instructions.
Work with a partner and answer the following questions.
1. Why did Cedric Monribot say his sacking was unfair?
2. Did the employment tribunal agree?
3. What argument did Centrelink use for sacking Geoffrey Scott?
4. Did the Industrial Relations Commission agree?
Discuss the questions in pairs and present your opinion to the whole group.
1. Do you know of any similar cases?
2. What happens when somebody thinks they have been unfairly dismissed in Ukraine?
Ex. 15. Read the following text. Fill in the blanks with the appropriate words from the box.
| legal prohibit equality mandatory labour stipulations prohibition equal matters law right treatment criterion established basic |
EQUAL RIGHTS FOR MEN AND WOMEN
The principle of (1) …………..(“All persons shall be equal before the (2) ………….”) laid down in the (3) …………. Law establishes for each individual person the (4) ……….. to equal (5) ………. in comparison to others against the State. The principle of equality is an extensive (6) …………… rule to treat equal (7) ………… or persons equally and unequal matters or persons unequally according to their specific nature and to apply the laws equally without distinction of person. However, this principle leaves the legislator a wide margin of discretion. The principle of equality is infringed only if there is no sensible reason that can be derived from the nature of the matter or is otherwise obvious for making the distinction, i.e. if the arrangement made is arbitrary.
The principle of equal rights for men and women (“Men and women shall have (8) ………… rights”) laid down in the Basic law and the (9) ………… of discriminatory or preferential treatment (“No-one may be prejucised or favoured because of his or her sex …”) (10) ………….. in the Basic Law (11) …………. any (12) ……… distinction between men and women. Thus, these stipulations far exceed the general principle of equality contained in the Basic Law and the principle of equal treatment in (13) …………. law. The employer’s liberty to make his own distinctions for factual reasons is excluded in so far as he intends to use the sex as (14) ……….. for making such distinctions. This means that on principle the biological and other differences of the sexes are to be disregarded unless in the very few cases where different (15) ………. require that these be taken into account.
Ex. 16. Read the following text. Fill in the blanks with the appropriate words from the box.
| status practice to grant meets treatment equal payments advantages grounds provides purpose benefits confirmation generalising employees |
THE EMPLOYER’S OBLIGATION
The employer’s obligation, on the (1) ……….. of the principal of equal (2) ……… of his employees, to pay pension (3) ……….., has the same legal (4) ……….. as company practice. If the employer (5) …….. pensions to his employees on the basis of individual (6) ………… he isn’t allowed to exclude individual (7) ………… without pertinent reasons. This also applies if the legal basis for the pension (8) ………….. doesn’t result from the employer’s express confirmation but merely from company (9) …………. In this case, protection of confidence and the principle of (10) ………… treatment overlap (11) ………….. the right to a pension to all employees of the company. It is true that freedom of contract allows the employer to give (12) ……….. to individual employees without this leading to a right to equal treatment for other employees. But this situation is different if the employer grants the pension benefits according to a recognisable and (13) ………… principle, i.e. if he specifies certain conditions or a certain (14) ………... Then he must abide by those and grant the benefits to everyone who (15) ………….. the criteria he has established. It is of no importance whether the favoured group is smaller than the disadvantaged group.
Writing 2. ADVISING ON ADVANTAGES AND DISADVANTAGES IN AN EMAIL
A lawyer has received a request from a client who employs a large number of people and has to deal with employment rights disputes on a regular basis. The client has asked for general information about the arbitration process described in Reading 4 in a short, easy-to-understand memo. He wants to know how it compares with employment tribunals, and what the advantages and disadvantages are of arbitration from the point of view of an employer.
Ex. 17. Read this email, written in response to the above request. Some of the information it contains is incorrect. Find three factual mistakes and correct them.
Dear Mr. Mason
In your email of 9 April, you asked for information concerning the new arbitration procedure. You specifically requested an assessment of the advantages and disadvantages of arbitration from the point of view of an employer. The followings summary presents a selection of key features of both the new arbitration scheme and the existing employment tribunal process.
|
Ex. 18. When comparing complex ideas in a Clear and simple way, it is advisable to, decide on an overall organising principle. Generally speaking, two approaches to organising ideas are available to the writer:
A Listing and explaining the advantages and disadvantages of one system and then the other;
B Choosing key points - - such as confidentiality - and discussing each system in respect of these criteria.
1. Which method of organising a comparison is used in the email you have just read?
2. Which sentence in the email announces the organising principle to the reader at the beginning of the text?
3. Underline the phrases in the email which are used to compare and contrast.
4. Which phrases are used to point out advantages?
Ex. 19. Rewrite the email using method A to organise the information.
Correct the factual mistakes and make use of some of the following phrases for comparing and indicating advantages/disadvantages.
X has a number of advantages, such as...
However, it also has some disadvantages/drawbacks...
X differs from / is different from Y with regard to / in respect of...
The first system / The former has the advantage/disadvantage of being.., while the second system / the latter has the benefit/drawback of being....
Ex. 20. Read the following article and retell it in English, give your point of view on the suggested problem.
ХТО ВИНЕН У ДИСКРИМІНАЦІЇ ЖІНКИ НА РИНКУ ПРАЦІ?
Офіційні посадові особи, зазвичай, заперечують те, що дискримінація жінок на ринку праці є проблемою для України. Насправді дискримінація за статевою ознакою характерна як для державного, так і приватного секторів економіки. Зокрема, про це свідчить статистика: у Львівській області з 60 тисяч безробітних майже 36 тисяч – жінки (59,4%). І це зовсім не означає, що немає робочих місць, або інше – жінки не хочуть працювати. Навпаки, сучасні українки прагнуть себе реалізувати у суспільстві. Однак ще до співбесіди з потенційним роботодавцем, вони вже зазнають дискримінації, що випливає зі змісту оголошень у ЗМІ. Йдеться про безліч оголошень в газетах про прийом на роботу, які містять вимоги щодо віку, статі, і навіть зовнішнього вигляду бажаного працівника. Особливо часто застосовується відсів за статевою ознакою, коли йдеться про високооплачувані та престижні посади. Понад те, такі оголошення можна подибати в агенціях працевлаштування, ба навіть в державних центрах зайнятості. Надзвичайно поширеною є практика відмови у прийомі на роботу на підставі сімейного стану та віку жінки. Зокрема, дискримінації при прийомі на роботу зазнають незаміжні жінки, жінки з малими дітьми і жінки, віком понад 40 років. При цьому освіта, досвід та професійні якості до уваги просто не беруться. Як правило, у вищих навчальних закладах дівчата навчаються краще за хлопців, проте, при розподілі «портфелів» надається перевага чоловікам.
За визначенням Конвенції про ліквідацію всіх форм дискримінації щодо жінок «дискримінація щодо жінок» означає будь-які відмінності, виключення чи обмеження за ознакою статі, спрямовані на ослаблення чи зведення нанівець визнання, користування або здійснення жінками, незалежно від їх сімейного стану, на основі рівноправності чоловіків і жінок, прав людини та основних свобод у політичній, економічній, соціальній, культурній, громадській або будь-якій іншій галузі.
Стаття 24 Конституції України гарантує свободу від всіх форм дискримінації, в тому числі і за ознакою статі. Крім того, Україною ратифіковані міжнародні угоди, які стосуються заборони та викорінення дискримінації у різних сферах суспільного життя.
Однак ситуація на практиці є іншою. Роботодавці як в приватному, так і в державному секторах регулярно підкреслюють бажану стать працівника в оголошеннях про вакансії та вимагають під час співбесід інформацію про сімейні обставини, яку згодом використовують для відмови у роботі. Вимоги щодо віку та зовнішності теж можуть стати перепоною, навіть якщо жінки повністю відповідають посаді з професійної погляду.
Бажання винаймати чоловіків роботодавці, зазвичай, виправдовують традиційними стереотипами стосовно фізичних та інтелектуальних можливостей жінок та їх сімейних обов’язків. В результаті жінки все більше витісняються в низькооплачувані сфери послуг та державний сектор або шукають роботу, в тому числі і за сумісництвом, в нерегульованому тіньовому секторі. Багато жінок їдуть за кордон в пошуках кращих економічних можливостей. Такий вибір наражає їх на небезпеку бути втягненими в комерційну секс-індустрію або в інші форми примусової праці.
Серед інших поширених форм дискримінації, з якими жінки стикаються вже на робочому місці, є відмова у наданні відпусток у зв’язку з вагітністю і пологами, чи для догляду за дітьми, виплата гарантованих державою коштів, обмеження можливостей професійного зростання, сексуальні домагання. Водночас роботи, які виконують жінки, все більше зосереджуються на найневигiднiшiй ділянці ринку праці. Більшість низькооплачуваних робітників – це жінки. До того ж жінкам похилого віку після втрати роботи дуже важко знову повернутися на ринок праці.
Як зазначила начальник територіальної державної інспекції праці, головний державний інспектор праці Львівської області Оксана Завада, серед тих, хто до них звертається зі скаргами, здебільшого жінки – 80%. Це можна пояснити тим, що саме жінки більш активні і не можуть терпіти несправедливості. Окрім того, є випадки, коли жінки звертаються зі скаргами, але не тому, що порушено їхні трудові права, а тому, що зневажено права їхніх чоловіків. Тобто, жінка переймається проблемою чоловіка як своєю та намагається її вирішити. Власне, якби чоловіки вміли захищати свої трудові права і самі б зверталися до відповідних органів, то кількість звернень чоловіків і жінок більш-менш зрівнялася б.
SITUATIONS.
Task 1. Read the following situations and answer the questions.
I. Three workers at Ace Packing Depot talk about getting other workers to join them in asking the company for a raise. The boss fires two of the workers when he learns of this. The boss hires only those of Anglo-Saxon origin. Do the workers have right to sue the employer?
II. Workers conspired to put pressure on the company for better wages. This would be a violation of Federal Law except that this Law exempts such union activity from antitrust laws. Assume that an employer hired only those workers who agreed that they would not join a union (i.e., a yellow-dog contract) and that the employer would apply to a federal court for an injunction prohibiting the workers from picketing and striking the plant. Is this “yellow-dog contract” prohibited by Law?
III. Section 8 of the NLRA requires that the parties meet to bargain in good faith but stops short of ordering agreement. One company hated waste of any kind and had a policy against "posturing" in labor negotiations. It approached the union contract negotiations with facts which included a survey of the employees to determine their wants. Given the results of the survey and what the facts showed the company could afford, it offered a "take it or leave it" package to the union with the purpose of eliminating a time-consuming and unnecessary negotiating ritual that included posturing and unrealistic demands and offers which both sides knew would not be accepted. This was accompanied by refusal by the company to provide some cost information and vague responses to the union's queries. What would the court decide about the company’s conduct in a similar case?
IV. Bargaining subjects are classified as illegal (not bargainable), mandatory, and voluntary. A demand for a closed shop (only union members may be hired) and mandatory retirement at age 62 are examples of illegal subjects. Mandatory under Section 8(d) refers to "wages, hours, and other terms and conditions of employment." This has been interpreted quite liberally in favor of the unions. Voluntary (or permissive or non-mandatory) subjects include industry promotion plans, strike insurance, and benefits for retired employees. These need not be part of the bargaining session, and insistence by one party that they be part of it (by trying a voluntary to a compulsory bargaining issue) constitutes an unfair labor practice. Mandatory bargaining issues include insurance, union dues check-off, merit pay increases, bonus systems, pensions, paid vacations, no-strike/no-lockout provisions, and of course the working environment, whether safety-related or otherwise. A car company was negotiating with a caterer for the servicing of the in-plant cafeteria and vending machines. It appeared that prices were going to be raised. The union demanded a right to review and propose terms regarding the quality, quantity, and prices of the food served. The company refused to bargain with the union over these prices. The union filed a complaint alleging a refusal to bargain contrary to Section 8 of the NLRA. The issue was whether in-plant food prices were "other terms and conditions of employment." What did the Supreme Court agree upon?
V. Gunter Armor obtained an army contract to produce weapons for use during World War II. Until this contract was awarded, the company employed no blacks. What was the court order?
VI. Banner Specialties is a well-run plant and does not consciously practice discrimination, but few minorities apply for positions there. If they are not given job will they have the right to apply to the court?
VII. Swanke Restaurants are noted for a certain elegant style of service. All dinner attendants are waiters (male) and have been for years. Further, they are all of English origin. A black man from the United Kingdom applies for the job of waiter and is refused an interview or consideration. Does he have a strong ground to apply to the court?
VIII. Younger Employment Agency is extremely selective about whom they refer to prospective employers. Due to the clientele they service, they have found that those of Scottish origin are not wanted, and therefore they do not refer any applicants who appear to be of Scottish origin. Would such a referral policy would be a violation by the agency?
IX. An airline which had previously not had a height requirement for flight crew members put in a new requirement which specified that all applicants for flight crew positions (i.e., pilots) had to be a minimum of 6 feet tall. A woman applicant charged sex discrimination on the grounds that the height requirement was overly restrictive and, in practice, was really meant to exclude qualified women applicants from flight crew positions. No other commercial airline had such a restriction, nor did the United States Air Force, nor did NASA in its selection of astronauts. What was the airline found to be guilty of by the court?
X. Burrows was an accountant who supervised the computer operation of the final production runs in a plant which was a subcontractor to the Army. He suffered a severe heart attack and underwent a triple bypass heart operation. His doctor termed the operation an unqualified success, discharged him, and sent him back to work. The plant declined to take him back, contending that the work of supervising the computerized final production runs was an intense occupation, and his participation put the company and Burrows at risk. Is Burrows entitled to be protected by the law?
Task 2. Solve the following situations.
1. Younger started his specialty printing business on a small scale and carefully selected employees who wished to grow with the company. He expanded slowly, and he now has three plants in two different states. Each worker agrees that he or she will be loyal to the company and not join a union and in consideration of such a promise earns shares in the corporation on the basis of longevity. Under these circumstances,
(a) the NLRB would not have jurisdiction over this business because the business is not engaged in interstate commerce.
(b) the company is entering into yellow-dog contracts.
(c) because all employees are, in effect, part owners of the corporation, they are managers or supervisors and couldn't vote in an election for union certification.
(d) the company is clearly violating the Landrum-Griffin Act.
2. Fenton was appointed union negotiator and wished to formulate a strategy for the upcoming renewal of the union contract. She has set forth a number of issues to be placed on the table for management to consider. She has further decided to demand that all these items must be considered or the union will strike. Which of the following issues should not be included in her strategy?
(a) Mandatory or compulsory issues (b) Voluntary or permissive issues
(c) Safety rules at the workbenches (d) Condition of the plant rest rooms
3. Several English-speaking whites applied to a building maintenance company for employment as sweepers and scrubbers. All the employees speak Spanish. The company refused to consider the applications, citing that it is necessary that all employees speak Spanish so that they can communicate with each other on the job. The community has a large (over 30 percent) Spanish-speaking population. Which of the following statements is incorrect?
(a) If the company employs less than 15 people, the 1964 Civil Rights Act, as amended, does not apply to this incident.
(b) If the maintenance company used an employment agency, the small number of employees does not except the agency from the federal law.
(c) Federal law prohibits discrimination on the basis of race, color, sex, religion, national origin, and language.
(d) Requiring proficiency in a language which has the effect of employment discrimination can be unlawful.
4. An airplane manufacturer was shown to have consistently paid black workers less than other employers in the industry paid for the same work and to have assigned the poorer jobs to blacks. The president of the company was very active in social action in the community, and his presence on the board of a prominent charity was coupled with large contributions to black causes. Under these circumstances,
(a) the company cannot be successfully convicted of showing a discriminatory intent against blacks.
(b) it is necessary to show actual malice toward the protected group before a charge of discrimination succeeds.
(c) the employer's knowledge of the disparity and its continued practice can be sufficient to show discriminatory intent.
(d) the Equal Opportunity Act does not apply to industries such as airplane manufacturing.
5. Marvelene Refractories survived in a very competitive industry solely on the efficiency it practiced. A basic management strategy was to cut down on white-collar employment by restricting the number of "paper pushers." The company discovered that considerable expense was incurred in complying with garnishment orders from creditors of its employees. The company therefore instituted a rule discharging employees who were subject to more than one garnishment proceeding within 3 years. This practice
(a) is a bona fide occupational requirement (BFOQ).
(b) is always a proper exercise of management prerogatives.
(c) could be a discriminatory act if it subjects minority groups to proportionally more discharges than other employee groups.
(d) could be a bona fide occupational requirement provided the adversely affected group is distinguished by race or color.
6. Addert-Mill Finance had a sudden rush of business, and its normal 5 o'clock closing was extended for a number of employees on certain days, but on a volunteer basis. The downtown area was not considered to be very safe at night, and Addert-Mill had a policy of providing taxicab fare for the women who worked late. Which of the following is true?
(a) This practice does not violate discrimination law even if it has a discriminatory effect on men in the company.
(b) If no men worked at night, this practice is legal.
(c) If the state had a rule which required an employer to provide for the safe conduct home of its employees when they worked after 9 p.m., this practice is exempt from a charge of discrimination.
(d) This rule is patently discriminatory.
7. Monty was considered an oddball at the plant, and while most treated him with tolerance, the supervisor was having trouble placing Monty in a position where he could be effective without causing undue disruption among other employees. Monty belonged to a cult group that had apparently physically taxing religious services on Thursday nights. Monty was tired and listless on Fridays except if a fellow employee started a religious discussion. The supervisor finally assigned Monty to a different position, which was singular as no other workers had a similar task. Several weeks later Monty asked whether he could take Friday off instead of Saturday. Saturday reassignment was possible, but it did interfere with the supervisor's perception of the "neatness" of things, and the supervisor did not approve Monty's request. Monty has also just learned that the hourly wage for his former position has been raised. His wage in his new position has not been raised. The supervisor pointed out that Monty's position is found in comparable companies and according to their wage scales he is being paid above average. Monty is beginning to believe that he is being discriminated against.
8. Marian was a single parent and had raised four children while working at television stations. She began as a clerk-typist and by age 54 had become the new program director at WXXX. She was proud of her 30-year career and of her accomplishments in the industry despite the absence of any formal higher education. The station was sold, and in an attempt to change its image the management decided to restructure certain key positions. Marian was given notice that the new retirement policy affected operational officers, including all program directors and assistant program directors, by requiring their mandatory retirement at age 55. Marian was just beginning to spend her salary on herself, having educated all her children. She was told that her 30 years at the station entitled her to a generous pension of $30,000 per year and that she "should enjoy her retirement." Marian had been earning $53,000 per year plus participation in a stock purchase plan which she had only been able to take advantage of the past 2 years. Within the next 2 years all but one of the six program directors at the station would have to leave under this policy. She was the only woman director. Marian's employment contract was a written one, for year-to-year periods, renewable at the option of the TV station.
What federal law may be applicable to Marian's situation? What success would she have under it?
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