Employer Obligations Following a Strike

After a strike, does the employer have an obligation to place striking workers back in their prestrike position if there might be violence aimed at them? Diamond Walnut Growers Inc. v. NLRB According to the book “If the employer replaces the strikers with new employees, then once the strike is over, the strikers have a right to reinstatement if they offer an unconditional offer to return to work. If their jobs are occupied by replacement workers, then unfair labor practice strikers have a right to be reinstated, but economic strikers are not.” (Dawn & Hartman, 2012, p. 726) When reading on strikes it does not state anything regarding violence. I would presume that this means that the employee is entitled to their position that they stepped out on for strike after the strike was over. The book also doesn’t give too much detail on what the violence was and if this employee was involved in the violence. Another thing I would think that would determine this would be if the strike was through a union or not. If it wasn’t through a union most states are able to fire without a cause.

But if it was through a union the employee would be covered. As I reread the chapter and read on NLRA, I believe the employer may have favor on this. Although in the book it doesn’t specify if this is regarding strikes, but according the book the NLRA doesn’t not cover violence. “Acts or threats of violence are not protected.” (Dawn & Hartman, 2012, p. 717) So with that, it needs to be clear if the employee who was on strike was violent. If they were, they are not entitled to their previous position. I think it all depends on the details of the case to determine if the employer has an obligation of reinstating the employee to its position. After reading Case Law Diamond Walnut was a processing, packaging, and distribution plant for Diamond nuts. It runs with seasonal and permanent employees. In 1991, 500 seasonal and permanent employees went on strike. During the strike Diamond brought in replacement workers to keep the plant running. Also during the time of the strike there were acts of violence between employees on strike and replacement employees, this lead to many restraining orders between both the parties. After a year of strike, the union met with Diamond.

They notified 2 employees were returning to work. One employee was a supervisor prior to the strike and the other was fork lift truck driver, both were permanent employees.

When they returned to work they were placed as seasonal workers in positions that were not their previous. They were easily reprimanded and targeted for failing to do things correctly. The union filed a complaint that Diamond discriminated against the returning employees and also how Diamond failed to place them in their previous position where they were to be reinstated to their position. Diamond had no justifiable reasoning for not reinstating employees to their previous positions.

When addressed by the Union. There were complaints filed of discrimination and that the employees were entitled to their positions. Diamond claims they were not. They claimed they were protecting the replacement employees due to violence from the employees who were on strike. There were many other allegations that these employees participated in while on strike.

They were boycotting and protesting the company’s product. It was in Diamonds concern that when placing these employees back into their positions they could potential harm others or the product. Diamond was found in violation of “Section 8(a)(1) and (5) of the Act, 29 U.S.C. Secs. 158(a)(1) and (5), by refusing to provide the Union with the names and addresses of current workers. Diamond does not challenge these findings.” (https://openjurist.org/53/f3d/1085/diamond-walnut-growers-inc-v-national-labor-relations-board) From my understanding the Union Board found Diamond in violation. Then Diamond challenged the board due to the reasonings of safety.

The employees that were on strike attempted sabotage and violence. Diamond is not obligated reinstating employees that went on strike. It is unclear to me how the case ended. From what I gather. Diamond had a justifiable reason to move these employees around but do not have the right to discriminate period. But they were looking out for their company. **This case was extremely hard to understand. I had searched easier translations and still struggled. **           Chapter 16   Page 790   #7   Does the supervisor’s statement constitute an intentional act of injury by the employer, thus removing the case from the limits set by the workers’ compensation statutes? Is it relevant to a jury decision if OSHA issues a citation for a willful violation in this case before it goes to trial? Van Dunk v. Reckson Associates Realty Corp. When filing for workers compensation in this situation there is no-fault required. If a person is injured on site at work, whoever is at fault has nothing to do with the claim.

Workers compensation will cover all injuries that occur in a workforce. This is a benefit each employee gets. It covers costs, damages, and long term damages. OSHA has many requirements and when determining at fault is separate from workers compensation. OSHA is there to make sure all companies are ran safely to prevent injuries. “OSHA requires that an employer provide a safe workplace.” (Dawn & Hartman, 2012, p. 762) From my understanding OSHA is completely different than workers compensation. OSHA’s job is to monitor the employer, there work place, and if things are running safely. On their website they state “to assure safe and healthful working conditions for working men and women by setting and enforcing standards and by providing training, outreach, education and assistance” (https://www.osha.gov) After reading Case Law The plaintiff is the employee who was seriously injured. He was working for a construction company.

The site they were working on was being affected by the weather. Due to more unworkable weather heading their direction They were instructed to cover their site with special fabric. They were having issues with the fabric reaching all the area and blowing away. The plaintiff volunteered to go into the Trench to reach the end and cover it properly.

His supervisor told the plain OSHA arrived after the incident and cited the company for negligence. Due to the fact that no person should enter a trench bigger than 5 feet and the trench that the plaintiff entered was between 18-20 feet. This was a violation. Not only was that a violation, it is required the trench be well supported and approved to enter. This also was not the case.

The site director knowing OSHA laws was aware of this and still allowed this situation to occur. No one should have entered the trench. The site director admitted fault and worked out the issue with OSHA. They were fined and worked out a deal with OSHA to pay $24,500. This case was first thrown out. Then was appealed by the plaintiff. Although OSHA fined and sited the wrong doing of the company.

The jury has no reason to use this for a workers compensation claim. With that the plaintiff has to prove that the company is liable for the injuries the plaintiff sustained and that they were at fault due to negligence. Although there were many violations by OSHA and there was an admittance by the employer. In the state of New Jersey they provide workers compensation benefits without fault. Only if proven that the employer intentionally hurt an employee can there be a liable suite. Since there is no proof that this was the case.

The court declined that there were any intentional wrong doing on the employer. I think the plaintiff should have looked more into the benefits his workers comp claim would cover. Because there is no reason he should sue the company when he is already completely covered.

References Alexander, D., & Hartman, L. P. (2012). Employment law for business (7th ed.). New York: McGraw-Hill. DIAMOND WALNUT GROWERS INC v. NATIONAL LABOR RELATIONS BOARD 601 AFL CIO. (n.d.). Findlaw. Retrieved August 15, 2014, from https://caselaw.findlaw.com/us-dc-circuit/1054902.html Google Scholar. (n.d.). Google Scholar. Retrieved August 15, 2014, from https://scholar.google.com/scholar_case?case=13947923641005810283&hl=en&as_sdt=6&as_vis=1&oi=scholarr New Jersey’s Supreme Court Rejects Expansion Of “Intentional Wrong” Exception To Workers’ Compensation Act. (n.d.). New Jersey’s Supreme Court Rejects Expansion Of ?”Intentional Wrong” Exception To Workers’ Compensation Act. Retrieved August 18, 2014, from https://www.clausen.com/index.cfm/fa/firm_pub.article/article/0cfdff8f-8caf-4d49-827f-4f3360e8cf46/New_Jerseys_Supreme_Court_Rejects_Expansion_Of_Intentional_Wrong_Exception_To_Workers_Compensation_Act.cfm Occupational Safety and Health Administration – Home. (n.d.). Occupational Safety and Health Administration – Home. Retrieved August 18, 2014, from https://www.osha.gov/ Once Is Not Enough (After All)! The New Jersey Supreme Court Reverses Van Dunk and Reaffirms the Exclusive Remedy Doctrine of the Workers’ Compensation Act. (n.d.). Marshall Dennehey Warner Coleman Goggin.

Retrieved August 18, 2014, from https://www.marshalldennehey.com/defense-digest-articles/once-not-enough-after-all-new-jersey-supreme-court-reverses-van-dunk-and OpenJurist. (n.d.). 53 F3d 1085 Diamond Walnut Growers Inc v. National Labor Relations Board. Retrieved August 19, 2014, from https://openjurist.org/53/f3d/1085/diamond-walnut-growers-inc-v-national-labor-relations-board VAN DUNK v. RECKSON ASSOCIATES REALTY CORPORATION LLC. (n.d.). Findlaw. Retrieved August 15, 2014, from https://caselaw.findlaw.com/nj-supreme-court/1604525.html BUS303 – Week 4 and 5 – Chapter Questions Points Possible – 30

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