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Question A16

XVI.

(Question XVI, Labor Law, 2018 Bar Exam)

Nagrab Union and Nagrab Corporation have an existing CSA which contains the following provision: “New employees within the coverage of the bargaining unit who may be regularly employed shall become members of Nagrab Union. Membership in good standing with the Nagrab Union is a requirement for continued employment with Nagrab Corporation.” Nagrab Corporation subsequently acquired all the assets and rights of Nuber Corporation and absorbed all of the latter’s employees. Nagrab Union immediately demanded enforcement of the above-stated CSA provision with respect to the absorbed employees. Nagrab Corporation refused on the ground that this should not apply to the absorbed employees who were former employees of another corporation whose assets and rights it had acquired.

(a) Was Nagrab Corporation correct in refusing to enforce the CSA provision with respect to the absorbed employees? (2.5%)

(b) May a newly-regularized employee of Nagrab Corporation (who is not part of the absorbed employees) refuse to join Nagrab Union? How would you advise the human resources manager of Nagrab Corporation to proceed? (2.5%)

Suggested Answer:

(a) No. Answer

Under labor law jurisprudence, in order to apply or not apply the Union Shop Clause, the absorbed employees may only be classified as either “old” or “new.” If they are not “old” employees, they are necessarily “new” employees. If they are new employees, the Union Shop Clause did not distinguish between new employees who are non-regular at their hiring but who subsequently become regular and new employees who are “absorbed” as regular and permanent from the beginning of their employment. Rule

In the case at bar, the absorbed employees are “new” employees of Nagrab Corporation. That being the case, the Union Shop Clause applies to them. The absorbed employees automatically became members of Nagrab Union. Apply

Thus, Nagrab Corporation was not correct in refusing to enforce the CBA provision with respect to the absorbed employees. Conclusion

(b) For the first question: No. Answer

Under labor law jurisprudence, a union shop clause is valid and enforceable against new employees. Meaning, all new regular employees are required to join the union within a certain period for their continued employment. However, under law and jurisprudence, the following kinds of employees are exempted from its coverage, namely, employees who at the time the union shop agreement takes effect are bona fide members of a religious organization which prohibits its members from joining labor unions on religious grounds; employees already in the service and already members of a union other than the majority at the time the union shop agreement took effect; confidential employees who are excluded from the rank and file bargaining unit; and employees excluded from the union shop by express terms of the agreement. Rule

In the case at bar, the Union Shop Clause applies to all new employees. Meaning, it includes the newly-regularized employee. Hnce, he is covered by the Union Shop Clause. There is no ground for him to be exempted from the application of the union security clause. Apply

Thus, the newly-regularized employee of Nagrab Corporation cannot refuse to join Nagrab Union. Conclusion

For the second question: I would advise the human resources manager of Nagrab Corporation to proceed with enforcing the CBA provision on the absorbed employees and the newly-regularized employee. I would remind here that the union shop clause is valid, binding, and enforceable. I would explain to her that the Supreme Court, through various labor law cases, held that union shop clauses are not a restriction on the worker’s right to self-organization.

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(Notice: The suggested answers simulate those that a bar examinee may provide, and thus specific citations are not provided. Notwithstanding, in the reviewers, the bar exam question is answered under the appropriate topic which discusses the concepts and principles, as well as provide for specific citations. Accordingly, please refer to it on the reviewer or in the Library.)

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