Reference no: EM133172849

Hypothetical Scenario:

Technical Books Inc. ("TBI") is a publisher of science textbooks. The president of TBI is Arthur Boss. The authors of TBI's textbooks are typically college professors, who prepare a manuscript of the book and send it to TBI to be edited. TBI uses editors to review and edit the manuscripts before they are published.

To be hired by TBI, an editor must already have a degree in science and experience as an editor. TBI pays them a fixed sum for each book they edit. They receive no training from TBI apart from an initial orientation, although their work is reviewed for quality by the editorial director at TBI. Those editors who turn in their work late have a warning letter put in their personnel file. After three such letters, the editor is terminated.

The editors receive no benefits, such as health insurance or retirement contributions. Most have worked for TBI for many years, and many rely on TBI as their primary or only source of income. Others, however, do editing for other publishers.

The editors are permitted to work either at TBI's offices in Manhattan, where they are provided a desk and a computer or at home, on their own computers. Since most of the editors live far from Manhattan, and prefer to not commute, most work from home. The editors are free to do the editing work whatever hours they like so long as they meet the deadline set by TBI to complete the job.

Each editor is provided a TBI email account to use for accessing TBI's email system.

One day, Fred Sack, one of TBI's editors, was working at TBI's Manhattan offices. During a break, he sent an email using TBI's computer and his TBI email account. The email said, "I'm fed up. I think it's finally time for us to organize a union, to get better pay and some benefits from this company." Then, at the end of the email, he wrote, "Let's face it. This is the worst darn company in the world. Boss and his whole family should be taken out and dumped in some dark hole somewhere."

Three other editors were at TBI's offices when they received Sack's email. After reading Sack's email, they had a discussion among themselves, in which they agreed that they needed health insurance from TBI. The three of them then walked into Boss' office and told him that they would not be doing any more editing until TBI offered the editors a health insurance policy. Boss said, "You're being unreasonable. The Company is looking for a health plan for you right now. I just got off the phone with the insurance broker. But it might take some time to find the right policy." The three editors then left Boss' office, telling him as the left: "We won't work until we have health insurance."

The next day, Boss called Sack and told him that his email had violated Rule 6 of the Company's Handbook, which says that "Company property and facilities, including its email system, are to be used only for business purposes." He also told Sack that he found the email to be highly offensive and inappropriate. He then told Sack that TBI no longer needed his services and that he should find work elsewhere. Boss terminated Sack, ending Sack's work at TBI.

Boss also told the three editors who had come into his office that their services were no longer needed either, and he terminated them too.

The following week, after collecting signed authorization cards from a majority of TBI's editors, the United Textbook Editors Union (Union), filed a petition with the NLRB seeking to be certified as to their collective bargaining representative.

As soon as he received a copy of the Union's petition, Boss emailed all the editors and told them that they were required to attend an online video session. During the mandatory video session, Boss said the following:

"I understand that some of you may want to organize a union. You should know that unions are bad and corrupt and joining one is a stupid idea. Also, you should know that TBI operates on a very slim margin. The Company can't afford the higher pay and benefits a union will demand. There are thousands of scientifically trained people in other countries who would be more than happy to edit textbooks for a fraction of what American editors are paid, and many other American publishers find themselves compelled to outsource their editing overseas. We value you and have not, so far, gone that route. As a sign of TBI's appreciation of your work, I have decided to give each of you a free annual membership to ZoomWorkout, an online exercise program, a value worth $500. There are no strings attached to that membership - and we won't take it back no matter what happens going forward. By the way, you should know that the president of the United Textbook Editors Union was recently convicted of embezzlement, so think twice before joining that organization."

In fact, no officer of the Union had ever been convicted of embezzlement.

After an NLRB election, in which a majority of the editors votes for the Union, the NLRB certifies the Union as the collective bargaining representative of the editors. During negotiations between the Union and TBI, the Union has three main proposals: (1) that TBI increase by 10% the fees it pays to editors; (2) that TBI provide health insurance for the editors and (3) that TBI reduce the prices that students have to pay for TBI's textbooks. Regarding the third proposal, the Union's chief negotiator explains that if TBI reduces its prices, TBI's textbooks will be assigned in more college courses, TBI will then sell more textbooks, and that that would increase TBI's revenues enough to pay for the proposed fee increase and health insurance for editors.

At the bargaining table, Boss responds to the Union's proposals as follows:

"Number 1, we can't afford a 10% increase, so the answer to that proposal is no. Number 2, the price of health insurance is going through the roof. There's no way we can afford that and we're not even going to discuss it. As for what we charge for our textbooks, that's none of your business, and we're not going to discuss that either."

TBI makes a counterproposal of a 2% pay increase.

After several additional bargaining sessions, the Union and TBI reach impasse, and TBI implements the 2% pay increase, but provides the editors no health insurance and leaves the prices of its textbooks unchanged.

Identify any and all unfair labor practices that TBI may have committed, and, for each possible unfair labor practice, make a determination, based on your analysis of the relevant law and facts, whether TBI acted unlawfully.