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Legal Notice of Schedule Changes: Arizona Labor and Employment Law, Essay Example

Pages: 7

Words: 2042

Essay

Does corporate employee’s of Mesa Airlines in Arizona fall under the railroad labor act? Please state why or why not by quoting law and/or cases if applicable?

An employment relationship has to be established in order for corporate employees of Mesa Airlines in Arizona to have rights under the Railroad Labour Act. “An employment relationship is presumed under the law if an employee performs work or services under certain conditions in return for remuneration.” (“Employment Relationship”). Corporate employees are covered under the provisions of 45 U.S.C. § 151 of the Railroad Labour Act because they are part of the team that directly or indirectly perform a service for the transportation industry.

We assume normally that corporate employees are part of management and are not covered by any union negotiation or part of regular employee’s. “An individual is said to be within the scope of employment if he did not retire or was not discharged from its last employer by whom he was employed or it’s corporate or operating successor.” See: Section 1 (d), subdivision iii (A) of the Act, 45 U.S.C.A. § 228a (d) (1952). As with seen between the constant competition of Federal Express and UPS there is a classification of division of employees that exists in order to create a mastery or domination of the market. Because Federal Express is an air carrier they have to be classified under the Railroad Labour Act of 1926 rather than the National Railroad Labour Act of 1935. There has been seen a corporate advantage to being classified under the realm of the NRLA.

Corporate employees must follow the same laws and policies as the unionized workers of the RLA because the law is a federal law rather than a state law but corporate employees are not covered under union policies because they are part of management. They are covered under the laws and policies of the RLA, though. Workers have the right to strike if there is an impasse of the contract however management/corporate is exempt and may cross a picket line. There must be a majority of voters to strike rather than a facility by facility agreement. It is through the National Mediation Board that workers are allowed to strike after they make their agreement to do so.

All other employee’s aside from management and corporate fall under the RLA because Mesa Airlines is an airline agency and under federal statute are governed by the RLA of 1926.

Is Mesa Airlines (an Arizona Corporation) required in the state of Arizona to notify corporate employees of work schedule changes? If so, what are the stipulations to those requirements? What liability do the employees have if they are not provided written notice of schedule changes?

Mesa Airlines are required to notify corporate employees of work schedule changes according to the contract. They cannot simply make unilateral changes to a contract without mutual assent of both parties. There must be a clause in the contract that allows them to make any changes such as a ‘flexibility clause’.  To explain further, under the bargaining contract, the employees have a scheduled work frame and if they are asked to work anything other than the scheduled schedule that has to be negotiated into the contract exactly how much notice the workers are to be given. If the employees were not part of a bargaining contract then under Federal and State Laws the employees would only have to receive reasonable notice. A contract gives employees much more protection under the law.

Further under Arizona Law, “The hours of employment may be changed from one part of the day to another at stated periods, the change not to occur more than once in any two weeks, and the employment may be for more than eight hours during the day in which the change is made. If the employer has adopted a policy of longer periods of employment based on a collective bargaining agreement between the employer and one or more labour organizations representing one or more affected employees that expressly authorizes longer periods of employment, but in no event longer than twelve hours in any twenty-four hour period, subject to compliance with the terms and conditions for implementing periods of employment in excess of eight hours as set forth in the collective bargaining agreement.” See: Arizona Revised Statute Title 23 Article 5 23-281 & 23-282. If the employees are not provided written notice in compliance with the collective bargaining agreement they do not have to work the change of schedule. They must reply to the request of change of schedule in writing and refuse according to Title 23 of Article 5 and state the employer has not complied with the scheduled change in according to the collective bargaining agreement. It is highly recommended they be represented by their union representative when filing such a written response. Often these situations can be worked out with mediation.

An employees schedule may be changed from one part of the day to another and can be changed no more than once in two weeks. An employee is not allowed to work more than eight hours in a day unless scheduled into a rotating shift work schedule. Total work hours may not exceed more than twelve hours in a twenty-four hour period. (“Arizona State Legislature”).

In AFA v. Mesa Airlines, Case No. 07-17232 it was distinguished that the company did not have an arguable basis for altering the flight schedule of the flight attendants hence were considered a ‘major dispute’ which gave rise to a violation of the collective bargaining agreement. However the appellate court overturned the decision and found the situation of argument was ‘minor’ because it entailed a disagreement of an ‘implied term’ of the collective agreement rather than an ‘express term’. The appellate court used Detroit & Toledo Shore Line Ry. v. UTU as precedent on their decision which stated that the status quo included ‘actual working conditions’ expressly stated in the collective bargaining agreement.

Is Mesa Airlines legally able to give an employee an occurrence for not working a schedule change that the employee was not notified of by written notice? Furthermore, is mesa airlines legally able to assign an occurrence for the employee not working the mandatory overtime?

Everything is based in accordance to the collective bargaining contracted agreement between the employer and the employee. If mandatory overtime is negotiated into the contract then an employee can certainly be given an occurrence for failing to work the mandated overtime. However an employee cannot be cited for failing to work a scheduled change that is not given in writing as long as the ‘writing clause is entered into the contractual agreement.’ If the company would try to enforce a policy against the bargaining contract this would constitute an unfair labour practise and under Article 5 Agricultural Employment Relations 23- 1390 Prevention of Labour Practises this would be a violation of Arizona’s Industrial Commission Law-Title 23-Labour. A hearing must be set within five days after filing of a complaint to the board pursuant to title 41, chapter 6, article 10. The board may take testimony and bring the matter to an administrative judge. The judge may rule to find the company in violation and enforce the original contractual agreement and issue and restitution necessary as deemed. The board has full jurisdiction and authority to have the courts to issue a prohibition order or injunction to have the company refrain from any further unfair labour practises until the litigation is settled. This is a fast relief to pending litigation. “If an order of the board made pursuant to this section is based in whole or in part on facts certified following an investigation pursuant to section 23-1389 and there is a petition for the enforcement of the order, the certification and the record of such investigation shall be included in the transcript of the entire record required to be filed under subsection E of this section, and the decree of the court enforcing the order of the board shall be made and entered based on the pleadings, testimony and proceedings set forth in the transcript. The court shall not enforce any order of the board that rests, in whole or in part, on evidence adduced from witnesses who have not testified under oath and who have not been subject to cross-examination by opposing parties.” (“Arizona State Legislature”). Section E speaks of the board’s right of petitioning the Superior Court for the injunctive relief and jurisdiction for temporary relief whilst litigation is pending. The board’s findings are subject to judicial review under title 12, chapter 7, article 6.

Is Mesa Airlines, an Arizona employer legally bound to require corporate employees to work required overtime on an originally scheduled day off? If so, what type of legal notice and time requirements are employers required to give employees and must notice of these changes be in writing?

The company is legally bound to follow the schedule in accordance with the original contracted bargaining agreement. The contract most likely will be arranged that the overtime will fall on a non-scheduled day off or mandated work day. Hence, the company is not legally bound to mandate any employee to work any non-scheduled overtime days. An employer is legally obligated to work a forty hour work week if he/she is full-time employed in order to receive benefits if not on salary. If an employee has not met his/her forty work hour weeks then he/she will be mandated to work on his/her scheduled day off in the same pay period to make up the time. If an employee is a salaried or exempt (23-617) employee he she will be entitled to full base pay but any over-time worked will be at straight time rather than 1.5 times per hour if any time of work was missed during the pay period. (Arizona’s Revised Statutes Chapter 4 Article 1 Employment Security Exempt Employment). Also, if a long standing agreement has been engaged in rather than in contractual agreement that workers have not had to work on a regularly scheduled day off then this will have weight in court. The case that gave value to this is Shore Line. This case prevented management from proclaiming ‘minor dispute’ status simply to make arbitrary changes to benefit the management and company which would in turn violate the rights of the workers. Keep in mind only the ‘major disputes’ have standing for litigation. The ‘minor disputes’ are settled in arbitration. Most collective bargaining agreements have clauses that agree to arbitration for minor disputes. Therefore it is essential that a dispute be selectively and validly be claimed as minor or major. Courts do not allow the minor disputes to swallow the status quo to ensure the major disputes are attended to in a timely fashion.

Any legal notice requiring employees to work on their day off must be negotiated into the collective bargaining contract within the ‘flexible option’ of the bargaining contract. Employees must receive written notice if such written notice is negotiated into the contract. However, the employee has the right to change the work schedule during a regular scheduled day to another schedule within that same day without any arbitration. Employee’s and supervisors must sign an acknowledgment written consent form that any changes were made to the work schedule in advance and the changes were organized with the consent of both parties to the agreement. An employee can refuse to work an originally scheduled day off unless that employee is schedule to be on a ‘rotational call period’ as proscribed in the contractual bargaining agreement.

References

Arizona State Legislature (2009) Retrieved December 29, 2009 from, http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/23/01390.htm&Title=23&DocType=ARS

Section 1 (d), subdivision iii (A) of the Act, 45 U.S.C.A. § 228a (d) (1952)

Arizona Revised Statute Title 23 Article 5 23-281 & 23-282

Article 5 Agricultural Employment Relations 23- 1390 Prevention of Labour Practises

Arizona’s Industrial Commission Law-Title 23-Labour

Title 41, chapter 6, article 10 Arizona’s Industrial Commission Law Title 23-Labour

Title 12, chapter 7, article 6 Arizona’s Industrial Commission Law Title 23-Labour

Section E Arizona’s Industrial Commission Law Title 23-Labour

Arizona’s Revised Statutes Chapter 4 Article 1 Employment Security Exempt Employment

AFA v. Mesa Airlines, Case No. 07-17232

Detroit & Toledo Shore Line Ry. v. UTU

Railroad Labour Act

Section 23-1389 Industrial Commission Law-Title 23-Labour

Arizona Revised Statute Title 23-617

Employment Relationship Retrieved December 29, 2009 from, http://www.ilo.org/public/english/dialogue/ifpdial/areas/legislation/employ.htm

45 U.S.C. § 151 of the Railroad Labour Act

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