ENT 466: FINAL EXAM (CHAPTERS 11-13)
3 TYPES OF PATENTS: 1. utility patents: granted inventions involving a new method, process, machine, device, manufactured item, or chemical compound; protects the way an invention is used and works 2. design patent: protect only the ornamental appearance of an invention 3. plant patents: hybrid plants
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4 types of intellectual property: 1. trademarks 2. copyrights 3. patents 4. trade secrets
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A-B DISTRIBUTORS, INC.: - distributed for Anheuser-Busch for 35 years - terminated their relationship in 1995 - A-B distributors shifted to cattle ranching and real estate, but declined to change it's name - Anheuser-Busch sued - Defendant won because they were in an entirely different business, so there was in infringement.
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AGENCY SHOP: ´The union is the certified/recognized bargaining agent ´Membership is strictly voluntary ´Union members must pay dues; nonunion members of the BU pay equivalent of dues.
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AUTHORIZATION CARD CAMPAIGN: ´A Union Authorization Card is a card that authorizes the Union to negotiate with an employer over your wages, hours and other conditions of work. ´Signing a union authorization card does NOT obligate an employee to vote for the union in a certification election? ´Watch for former employees, nonemployees, and supervisory personnel signing cards (they don't count). - Even if you signed a union authorization card before or during the campaign, you are not obligated to vote for the union in the election . - Showing of interest ´Must have a minimum of 30% if they are to file for certification. ´Unions generally look for 60-70% ´Certification process stops dead for 12 months if they can't get 30% within 30 days [in most cases] ´Must have a simple majority (50%+1) if they are seeking recognition.
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BILLY BUDD CLASSIC AMERICAN ALE: - Anheuser-Busch sued for infringement - produced by small microbrewery in New England - Anheuser- Busch won. The similarity in names of the marks indicates a likelihood of confusion - "I'll have a Budd." or "I'll have a Bud."
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CARDINAL RULE: - Never take any disciplinary until you have investigated the situation and determined discipline is warranted
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CLOSED SHOP: ´Applicant must be a union member before application is accepted. ´Illegal under the Labor Management Relations Act of 1947 (Taft-Hartley).
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CONSTRUCTIVE DISCHARGE: Making working conditions so intolerable for the employee that the employee quits. - Preventing allegations of constructive discharge: ´Educate supervisory personnel. ´Document reasons for all discharges (ensure that the employee is informed of these reasons). ´When any employee resigns, ask for their reasons and document them.
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COPYRIGHT EXCLUSIONS: - titles and names - short phrases, slogans and jingles - blank forms to collect information - familiar symbols (triangles, squares, etc.) - mere variations of fonts, lettering, or coloring - facts or news articles - standard measures and tables
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COPYRIGHT PROTECTION: - legal protection giving the creator or an original works of authorship exclusive rights for it, usually for a limited time - literary works, music, architectural works, pictoral works, web pages, commercials, videos
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COPYRIGHTS ARE TRANSFERABLE: - copyrights are property, and like any other property, all or part of the rights in a work may be transferred by the owner to another - read any transfer agreement carefully
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COPYRIGHTS: - apply to any original work of authorship that is in a fixed or tangible form of expression such as: literary and textual works; musical works and lyrics; dramatic works; pictoral, graphic (logos) and sculptural works; audiovisual works; and architectural works - logos can either be copyrighted or trademarked
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CRITERIA FOR EFFECTIVE DUE PROCESS: - The organization should have written procedures. (handbook would be a good place) - The procedure should be reasonable. - The employee should be afforded the opportunity to use the procedure. - Help should be afforded to the employee in preparing his/her defense. - The employee should be protected against retaliation. - The appellate authority should not be the same person bringing the initial action.
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DECERTIFICATION: ´Occurs when the members of a bargaining unit are dissatisfied with the union and want to remove it as their exclusive bargaining agent. ´Same process as with certification (see §9). ´Management must stay completely out of the process. ´Time frame ´Minimum of 12 months since previous election. ´Maximum of 36 months with a valid contract bar.
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DEFAMATION: - Defamation is distinguished from privacy in that defamation focuses on the intentional injury to the employee's reputation. - A statement was made concerning the individual. - The statement was presented as fact and is substantially false. - The statement impugned the employee's character or abilities and caused actual injury to his or her reputation. - The defamatory statement must be "published."
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DISCLAIMERS: - The formal disavowal of any guarantee of job security. ´Not accepted in all jurisdictions ´Cannot be contradicted by other language in the handbook
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DUE PROCESS: The opportunity to defend oneself against allegations of wrong doing and to confront your accusers
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DURATION OF INTELLECTUAL PROPERTY PROTECTION: - Patents (utility): 20 years - Patents (design): 14 years - Patents (plant): 20 years - trademarks: perpetual, if renewed - copyrights: author's life plus 70-120 years - trade secrets: until disclosed
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ECONOMIC STRIKES: ´Results when there is a failure to agree to contact terms involving mandatory bargaining issues (wages, hours and conditions of employment).
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EMPLOYEE HANDBOOKS (LEGAL CONSIDERATIONS): - Summary of Legal Considerations ´Failure to have a handbook may expose employers to even greater litigation (sexual Harassment, e.g.) ´May contain implied contracts. ´Avoid controversial phrases that imply guaranteed employment: ´"Permanent employee" "Continued employment" - Provide disclaimers: ´"Not a contract" ´"Not intended to create a contractual relationship" ´"Management reserves the right to change or modify policies without notice" - Keep the handbook current ´Declare that previous handbooks are superceded by the new one.
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EMPLOYEE HANDBOOKS: - Guidelines: ´Readability - written at employee's reading level (if they can't be understood they are worthless) ´Use - will it be used by the employee ´Distribute at orientation ´Discuss major provisions ´Test employees' retention if information
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EMPLOYER RESPONSES TO STRIKES: - Shutdowns, wait-it-out ´Production is lost during the period. ´Competitors may get market share. - Continued Operations ´Use supervisory & nonproduction personnel. ´Automated production facilities. ´Strike replacements ´Availability is crucial May cause picket line violence. - Outsource ´Preferably a nonunion employer. - Lockout - only legal under three circumstances ´Perishable goods (to avoid economic loss). ´To preclude whipsawing. ´To enhance bargaining position in single employer bargaining (let the union strike first).
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EMPLOYMENT-AT-WILL: - a common law principle based upon the premise that both employers and employees may terminate their employment relationship at will. - The employment relationship is a voluntary one; since the employee may quit at anytime, the employer can fire at anytime. - An employer has the right to dismiss or discharge an employee for: ´A good reason ´A bad reason, or ´No reason at all
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ERRORS TO AVOID IN INVESTIGATIONS: ´Excessive Delays in Starting the Investigation ´Inadequate Feedback to the Parties During the Investigation Process ´Inappropriate Disclosure of Confidential Information ´Lack of Thoroughness in the Investigation ´Failure to Complete the Investigation
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EXCEPTIONS TO EMPLOYMENT-AT-WILL: - Actual (explicit) employment contracts. - Violations of EEO statutes - Whistler blowers clauses - Violations of state law: ´Just cause statutes ´Public policy ´Implied employment contract ´Good faith and fair dealing
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EXCLUSIVE BARGAINING RIGHTS: - Exclusive Bargaining Rights ´The union is the certified/recognized bargaining agent ´Membership is strictly voluntary ´Only union members must pay dues ´Highest form of union recognition (compulsory union membership) in a right-to-work state
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F & L BEER: - Sold in northern California in stores it owned named "Cheaper" - Cans were red, white, and blue - Slogan: "Beer of Beers" - VS. "King of Beers" - Anheuser-Busch sued for infringement - Produced survey: 107 of 204 people thought F&L was either produced by or authorized by Anheusuer-Busch - Anheuser- Busch won: same channels, same shelves, famous company, consumer confusion
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FILING A PATENT: - an application must be filed with the U.S. Patent and Trademark Office (PTO) - the US PTO will research the application to ensure that is is not already patented (may last more than 1 year) - if successful you'll receive a notice of allowance from the patent examiner - with a few months of paying your fee, you receive your patent - total costs run from $5,000-$20,000
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FILING FEES (ESTIMATE FOR UTILITY PATENT) - filing fee: $300 - search fee: $660 - examination fee: $760 - total USPTO fees: $1,720 - late surcharge $160 $1,880
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FOUR TYPES OF STRIKES: ´Economic (may hire permanent strike replacements) ´Unfair Labor Practice ´Sympathy ´Wildcat (Illegal)
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GENERAL ELIGIBILITY REQUIREMENTS FOR REEMPLOYMENT: (1) That the service member be absent from a position of civilian employment by reason of service in the uniformed services. (2) That the service member's employer be given advance notice of the service.* (3) That the service member have five years or less of cumulative service in the uniformed services with respect to a position of employment with a particular employer. ´(4) That the service member return to work or apply for reemployment in a timely manner after conclusion of service. ´<31 days AD must return to work within one week. ´31-180 days AD must return within 14 days. ´>180 days AD must return/reapply within 90 days. ´Service related injuries up to two years. (5) That the service member is not have been separated from service with a disqualifying discharge or under other than honorable conditions
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GOOD FAITH AND FAIL DEALING: - The employer acts in an unreasonable manner (called "outrage" in some states) ´Employer decides to discharge a 25-year salesman in order to avoid paying him a substantial commission(Fortune v. NCR, 36 NE2d 125)). ´About 1/4 of the states recognize good faith and fair dealing.
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HOT STOVE PRINCIPLE: - Douglas McGregor's Hot Stove Principle for Imposing Disciplinary Action: ´Consistent (always get burned) ´Immediate (burns when it is touched) ´Impersonal (burns anyone who touches it regardless of who they are)
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HOW LONG DO COPYRIGHTS LAST? - for words created after January 1, 1978, copyright protection lasts for the life of the author plus an additional 70 years; works created after this date are not subject to renewal registration - for an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first - copyrights do not belong to the creator in the case of works made for hire (ex: if you are hired to write songs, the employer is considered the author) - anything first published in 1923 or earlier is declared to be in the public domain; a work is considered to be in the public domain if it's no longer copyright protected
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ILLEGAL REACTIVE COUTNERMEASURES: (1) Threatening to discharge pro-union employees restraining, or coercing employees in the exercise of their § 7 rights. (2) Threatening to close or relocate the plant (3) Spying on pro-union employees (4) Making any employment decision based on whether an employee is pro-union or anti-union (5) Favoring another union over the one favored by employees (6) Stating that nothing will change even if the union is certified (7) Providing open support for anti-union employee organizations (8) Predicting strikes if the union is certified (9) Spreading knowingly false information (10) Violating the Peerless Plywood rule
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IMPLIED CONTRACT: - Contract Theory - assurance has been made to the employee that he/she has continued employment in exchange for good performance. -Written assurance - Verbal assurance - WRITTEN ASSURANCE: ´Some jurisdictions (i.e., California) require an explicit promise of continued employment (not vague assurances). ´Employee handbooks create an enforceable contract when they implicitly promise that an employee will only be terminated "for cause" (e.g., New Jersey) - UNWRITTEN ASSURANCE: A contract may exist even when no assurances have been made, but the quid pro quo of a loyal workforce in exchange for job security (i.e., Michigan).
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INFRINGEMENT AND DILUTION: - trademark law deals with both infringement and antidilution protection - almost any word, name, symbol, or device capable of distinguishing the source of goods may be used as a trademark subject to few limitations
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INFRINGEMENT: - using someone else's trademark to sell goods and services without the authorization of the trademark owner or under license - ex: Nike, Inc. v "Just Did It"
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JOHNNIE WALKER SCOTCH: - in 2001, Busweiser Red Label was test marketed in NYC - Johnnie Walker sued for infringement and won. - the recent entrance of many liquor manufacturers into the "crossover" flavored alcoholic beverage market suggests that consumers are likely to associate Anheuser-Busch's product with the scotch with the similar name
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JUST CAUSE STATUTES: - Just cause statutes - laws designed to protect employees from arbitrary and capricious terminations. ´Montana is the only inclusive state. ´Massachusetts, Minnesota, and Michigan in a limited sense. - ´Employer must prove & document that terminations were for "just cause." ´Poor performance ´Financial exigency ´Misconduct ´Insubordination ´Theft ´Alcohol or drug use on duty ´Violation of work rules
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LEGAL REACTIVE COUNTERMEASURES: (1) Provide factual antiunion information ´Letters to employees ´Bulletin boards ´Factual information about unions in general. ´January 23, 2007Teamsters-organized staff of Canada's United Food and Commercial Workers (UFCW) union went on strike to protest the UFCW's proposed use of a two-tiered system in which new employees receive significantly less in wages and benefits than veteran employees. ´Factual information about the union in question. ´Factual information about local wages and cost of living. ´Displays Remind employees about dues & strikes. (2) Remind employees that work rules will still be enforced. (3) Remind employees that they have a legal right to refrain from signing a union authorization card. It is unlawful for an employer or a union to threaten or coerce any employee to sign a union authorization card. (4) Remind employees that even if they signed an authorization card they don't have to vote "yes" for the union in the secret ballot. (5) Announce that you will use all legal means to fight the union. (6) Permit "No Vote" committees (be care to not violate § 8a(2)). (7) Hire consultants. (8) Train supervisory personnel. (9) Ban union organizers from company property. (10)Enforce the Republic Aviationrule.
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MAINTAINING OF MEMBERSHIP SHOP: ´The union is the certified/recognized bargaining agent ´Membership is voluntary in a limited sense. ´Union members must pay dues; nonunion members of the BU pay equivalent of dues. ´However, once a member joins the union they must remain a member in good standing as a condition of employment.
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MODIFIED UNION SHOP: ´The union is the certified/recognized bargaining agent ´All new hires must join the union old nonunion employees may remain non union. ´Union members must pay dues; nonunion members of the BU pay equivalent of dues. ´However, once a member joins the union they must remain a member in good standing as a condition of employment.
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NATIONAL LABOR RELATIONS BOARD (NLRB): - An Independent Agency. - Enforces the National Labor Code: ´National Labor Relations Act (1935). ´Labor Management Relations Act (1947). ´Labor Management Reporting and Disclosure Act (1959). - Investigates unfair labor practice (ULP) charges. - Oversees certification elections and the recognition process. COVERED EMPLOYERS: - The Labor Code applies to most private sector employers having a gross annual of $500,000 or more (including manufacturers, retailers, private universities, and health care facilities). - The NLRA does not apply to: ´Federal, state, or local governments; ´Employers who employ only agricultural workers; ´Employers subject to the Railway Labor Act (interstate railroads and airlines). EMPLOYEES NOT COVERED BY THE NLRA: - Confidential employees ´One who assists and acts in a confidential capacity to the management personnel who make and implement labor relations policies ´One who has regular access to confidential information about future bargaining strategy or changes that the employer anticipates may result from collective bargaining. - Managers/supervisors - Independent contractors - Parent, spouse or child - Farm workers - Domestic workers
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NEUTRALITY AGREEMENT: - An agreement stating that the employer will not campaign against the union while union agents solicit signed authorization cards. - Often done to avoid a corporate campaign. ´A corporate campaign is a "top down" organizing approach in which the union attacks the employer's public image, makes it difficult for the employer to conduct business, and then pressures top level management to succumb to union demands.
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NON-COMPETE: An agreement that prevents an individual who leaves the company from competing with the employer in the same line of business for a specified period of time. ´Varies in enforcement from state to state. ´California does not enforce non-compete agreement. ´Generally out-of-state non-compete agreements are not enforced. - State courts usually consider four factors when enforcing non-compete agreements: ´The agreement is reasonably limited in scope such as duration, geography, client base, and technology. ´The agreement is narrowly tailored to the interests of the employer. ´The agreement is supported by valid consideration. ´The agreement is not harmful to the public. (Think a noncompete between doctors in Cutbank, MT) - The agreement is reasonably limited in scope such as (1) duration, (2) geography, (3) client base, and (4) technology. ´The shorter the duration, the more enforceable. Conventionally, 1 to 2 years. More than 3 is problematic (Zep, Inc. v. Brody Chemical Co. put it at 6 months in AZ). ´Smaller the geographic area, the more enforceable. The geographic area should be restricted to the area in which the employer does business. ´The narrower the type of activity, the more enforceable (sales position only, versus working for a competitor in any capacity, e.g.). - The agreement is narrowly tailored to the interests of the employer. It clearly delineates restrictions on trade secrets, lists of clients, the business's goodwill, or use of extraordinary skills. - The agreement is supported by valid consideration. The agreement must be the product of some bargain. In order to be enforceable, employers should state in writing that the individual's employment is contingent on the signing of the non-competition agreement. This establishes valid consideration (quid pro quo). - The agreement is not harmful to the public. ´In an area that has a shortage of healthcare providers, a court is much less likely to enforce a non-competition agreement that would exacerbate that shortage. ´Suppose a county with a single clinic with only one doctor required a second physician to sign a non-compete arrangement.
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NON-DISCLOSURE AGREEMENTS: - Confidentiality agreements - have two restrictive covenants: ´Non-use. ´Non-disclosure. - One agreement (document) should cover both.
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NON-DISCLOSURE: - Two levels of confidentiality need to be addressed: ´Confidential information (accounting information, compensation systems, outsourcing, customer lists, advertising plans, business strategies; profit margins; sales objectives and projections; e.g.) ´Trade secrets (information and knowledge that the employer must maintain secret in order to be effective and ensure a fair competitive advantage).
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NON-DISPARAGEMENT: - Non-Disparagement agreement - (a.k.a., a gag clause) prevents the employee from talking negatively about the employer. ´Usually a simple statement like, "Employee agrees that he/she will not disparage the Company or any of its officers, directors, or employees." ´Can also be a condition for employment. ´May also be a condition for a severance package.
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NON-INTERFERENCE: -Non-Interference agreement - prevents the employee from interfering with certain relationships: ´Vendor/supplier ´Referral patterns ´Customers [not stealing customers (that's non-piracy), but trying to drive them away]
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NON-PIRACY: - Non-piracy agreement - (a.k.a. anti-piracy agreements, non-solicitation of customer agreements) attempt to restrict the departed employee from soliciting customers of employer. ´Courts usually refrain from enjoining former employees from accepting business from former clients who voluntarily, and without active solicitation, contact the former employee and seek to retain his/her services.
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NON-SOLICITATION OF CURENT EMPLOYEES: - Non-solicitation of current employees agreement - not to steal critical employees. Important, these clauses are generally unenforceable unless they are reasonably tailored to protect legitimate business interests of the former employer. Note: Non-Piracy focuses on customers, non-solicitation focuses on key employees.
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OPEN SHOP: ´a non-union workplace. ´No union represents the employees and there is no collective bargaining agreement.
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ORIGINALITY REQUIREMENT FOR COPYRIGHTS: - copyrighted material only needs to have sufficient creative expression to distinguish it as not being merely a copy of something else - the copyright only protects the expression of the idea, not the idea itself - someone expressing the same idea with a different expression of the idea is not barred
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PATENT PROTECTION: - in the U.S., a patent guarantees the right to make, use, or sell the invention to the absolute exclusion of others for 20 years - patents are territorial, and are enforceable in a country where the patent is in force - the scope of protection varies from country to country - patent piracy occurs in many jurisdictions
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PATENT PROTECTION: - innovations and inventions - you may sue to stop patent infringement - prevents others from using/ practicing your invention - you may not be ale to make, use, or sell your invention yourself - innovations on existing products may be patented, but you cannot infringe the underlying patent
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PATENT PROTECTION: - patents only give the holder the right to exclude or to prevent others from copying or selling their product - you may stop a competitor from infringing on your product - however, another patent holder may prevent you from infringing on his/her patent
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PATENTS A FEDERAL ISSUE: - patents are squarely under the jurisdiction of the federal government: the congress shall have the power to ... promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries - patents are issued by the u.s. patent and trademark office (USPTO OR PTO) - over 7,000,000 patents are granted annually
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PEERLESS PLYWOOD RULE: It is unlawful to hold any "captive audience" meetings within 24 hours of the representation election.
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PENALTIES: ´Declaratory and Injunctive relief ´Court costs ´Attorney's fees ´Reinstatement ´Back pay ´Front pay Compensatory damages
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POLAROID FACTORS: - strength of senior user's mark. The more distinctive the senior user's mark, the moe likely the confusion. - the quality of the defendant's product - the degree of similarity between the 2 marks; the more similarity between the 2 marks, the more likely the confusion - the defendant's good faith in developing its own mark. If the junior user adopted the mark in bad faith, confusion is more likely. - the sophistication of the buyers. the less sophisticated the purchaser, the more likely the confusion; actual confusion: proof the trademark owner can show that the average reasonably prudent customer is confused - the proximity of the products/ services; do their respective markets overlap
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PROACTIVE MANAGEMENT COUNTERMEASURES: (1) Provide market wage & benefits (2) Comprehensive benefit plans (3) Favorable employee/management relations (4) Safe working conditions (5) Job security measures ´Handbooks ´Just cause actions Procedural due process (6) Due process and complaint handling (7) Communicate to employees how successful the firm is (emphasize nonunion work environment) (8) Monitor employee attitudes (surveys) (9) Attempt to screen out salts (union organizers pretending to be applicants) during the hiring process (can potentially violate NLRA) (10) Benefit from the research on organizational structure. The following are not conducive to organizing: ´Small plants (<200) ´Limited access Rural Southern locations
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PROGRESSIVE DISCIPLINE: - Objective: Behavior modification - Example: ´1st Offense - verbal warning (make a record) ´2nd Offense - written warning ´3rd Offense - suspension without pay ´4th Offense - termination - Documentation (adverse counseling): ´Reason for disciplinary action ´Corrective Action ´Consequences if behavior is not corrected
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PROHIBITIONS: - It is an unlawful employment practice to: ´To refuse to hire, rehire or promote any individual based upon their military service. ´To deny any benefit to any individual based upon their military service. - USERRA also protects any covered employee from retaliation for exercising their rights under the Act.
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PUBLIC POLICY: - Public policy - a termination which is contrary to public morals, health, safety, or welfare. ´Tameny v. Atlantic Richfield, 601 P.2d 1330 (1980) employee was fired for refusing to take part in illegal price-fixing. ´O'Sullivan v. Mallon, 390 A.2d 149 (1978) medical technician was fired for refusing to perform work mandated by state law exclusively by a physician. ´Sabine Pilots Assoc. v. Hanck, 687 S.W.2d 733 (1985) deckhand was fired for refusing to violate federal anti-pollution laws.
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QUESTIONS TO ASK IN AN INVESTIGATION: ´What happened? ´ When did it happen? ´What did you do or observe? ´What is the background of the incident? ´ What documentation or physical evidence is present? ´Who else witnessed the incident? ´What were their observations?
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REASONS WHY DISCIPLINE IS NOT ENFORCED: ´Lack of support by higher management/owner ´Guilt (manager may have previously violate the same work rule) ´Loss of friendship or conflict avoidance (people like to be liked) ´Time loss (bigger fish to fry) ´Fear of litigation
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REEMPLOYMENT RIGHTS: - Return to previous job or a similar one. ´Similar pay, status, benefits, seniority. - Accrues pension benefits during the period (defined benefit programs). - Continuation of healthcare benefits for dependents (102%). ´If less than 31 days, employer is still responsible for its contribution.
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REPUBLIC AVIATION RULE: - Employees may distribute union organizing materials for the union in nonwork areas during nonwork times. ´Break areas ´Cafeterias (except cafeteria workers) ´Parking lots ´Locker rooms
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RIGHT-TO-WORK LAWS: ´Right-to-Work Laws ´Nothing in this Act shall be construed as authoring the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which the execution or application is prohibited by State or Territorial law.
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SAFE JUSTIFICATIONS FOR DISCIPLINE AND/ OR TERMINATION: - CAP ´Conduct ´Attendance ´Performance - Make certain that you provide the documentation
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SITUATIONS CALLING FOR IMMEDIATE TERMINATION: - Objective: Remove the employee. ´Substance abuse at work ´Fighting on company property ´Possession of weapons ´Theft ´Willful destruction of company property ´Falsifying employment documents ´Certain off duty criminal activities
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SYMPATHY STRIKES: ´One union goes on strike in support of another union's strike. ´Actually, members of one union refuse to cross the picket line of another, hence a de facto strike. ´Most often both unions work for the same employer. ´Sympathy strikers are protected under the Norris-LaGuardia Act (see, Buffalo Forge Co. v. United Steelworkers, 420 U.S. 397 (1976)).
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THE DIFFERENCE BETWEEN TRADEMARK AND COPYRIGHT: - you can use "TM" on any trademark that you wish to designate as a trademark - no registration required - it alerts the public to your claim, regardless of whether you've filed an application with the USPTO - you may only use the federal registration symbol "R" only after the USPTO actually registers a mark (not while pending)
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THE ELECTION: ´Usually held within 30 days of the formal election hearing or consent election agreement. ´Secret ballot supervised by the NLRB. ´Election outcome is determined by a majority of the ballots cast.
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THE PRINCIPAL PARTIES IN LABOR RELATIONS: ´Management ´Union ´National Labor Relations Board
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TRADE SECRET PROTECTION: - information which gives the owner a competitive advantage which he/she does not want competitors to know - ex: KFC and Coca-Cola's secret recipes, customer lists, manufacturing methods, proprietary processes
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TRADEMARK DILUTION ELEMENTS: - the degree of similarity between the mark or trade name and the famous mark - the degree of inherent, or acquired distinctiveness of the famous mark - the extent to which famous mark is engaging exclusive use of the mark - whether the user of the mark or trade name intended to create an association with the famous mark - any actual association between the mark or trade name and the famous mark
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TRADEMARK DILUTION: - use of the junior mark diluted the distinctive quality of the famous mark, either through "blurring" or "tarnishment" - blurring: when the power of the mark is weakened through its identification with dissimilar goods (ex: Lexus jeans, Kodak bicycles) - tarnishment: when the mark is cast in an unflattering light, typically through its association with inferior or unseemly similar products/ services - only applies to famous marks - federal courts look at: degree of distinctiveness of the mark; duration and extent of its use; amount of advertising; geographic extent of the market; channels of distribution; degree of recognition in the trading area; use of similar marks by 3rd parties; whether the mark is registered
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TRADEMARK INFRINGEMENT: - if you sell computers called Apple, that would likely cause confusion; so that would be infringement - similar marks can also cause confusion (ex: computer named apricot?) - same name but on different product may not cause confusion (ex: mercury outboard motor; mercury automobile)
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TRADEMARK PROTECTION: - logos - slogans - packaging - a word of groupings of letters (IBM) - distinguishing product configuration (Life Savers)
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TRENDS IN UNION MEMBERSHIP: ´1935 13.2% ´1945 35.5% ´1955 33.2% ´1965 28.4% ´1975 25.5% ´1985 18.0% ´1995 14.5% ´2005 12.5% ´2010 11.9% ´2019 10.5% - The unionization rate of private sector employees was 6.2% in 2020. ´Union membership was the highest in the utility occupations 23.4%. ´Transportation and warehousing (16.1%); and telecommunications at 14.1%. - The unionization rate of government workers was 33.6 % in 2020. ´Local government had the highest unionization rate, at 39.4%, includes teachers and protection agencies.
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TYPES OF MILITARY DISCHARGE: - Honorable - General - Other Than Honorable - Bad Conduct - Dishonorable - Bad conduct and dishonorable are court material
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TYPES OF NONCOMPETE AGREEMENTS: ´Non-Disclosure Agreements. ´Non-Compete Agreements (yes, a non-compete agreement is a form of noncompete arrangement). ´Non-Piracy Agreements. ´Non-Solicitation of Current Employees Agreements. ´Non-Interference Agreements. ´Non-Disparagement Agreements.
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UNFAIR LABOR PRACTICE STRIKES: - The union is protesting a violation of their rights under the National Labor Code. ´Examples: ´Unilateral changes to the CBA. ´Refusing to follow the CBA. ´Refusing to bargain. - Employer cannot hire permanent strike replacements. ´Employees return immediately to work upon the strikes conclusion.
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UNIFORMED SERVICES: ´Army ´Navy ´Air Force ´Marine Corps ´Coast Guard ´Armed Forces Reserves ´National Guard ´U.S. Public Health Service Commissioned Corps
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UNION ORGANIZING TACTICS: - Stage 1: Initial Contacts ´Intelligence gathering. ´Identifying real or perceived dissatisfaction. ´Assessing current conditions. ´Formulating organizing agenda. ´Recruiting pro-union employees. ´Holding training sessions. - Stage 2: Obtaining "Critical Mass" (Ideally 60-70%) ´"Tuperware" parties. ´Mass meetings. ´Telephone/text message campaigns. ´Pamphlets. ´Responding to employer countermeasures. ´Rebuttals to statements. ´Legal actions. ´Stage 3: Obtaining employee signatures on authorization cards.
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UNION SHOP: ´The union is the certified/recognized bargaining agent ´All employees must join the union. ´Union members must pay dues. ´Union membership is a condition of continued employment.
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USERRA: - Uniformed Services Employment and Reemployment Rights Act (USERRA) - enacted in 1994. ´Covered employers: All private sector employers with one or more employees. ´Protected Class: All employees (full-time, part-time & probationary) who are member of the unformed services.
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VICTOR MOSLEY: - in 1998, Mosley opened adult novelty store called "Victor's Secret" - Victoria's Secret complained, so he changed the name to "Victor's Little Secret" - Victoria's Secret sued for dilution and won. - Supreme Court reversed, claiming that actual dilution had to be proved, not likelihood of dilution. Case was sent back to lower court (where it languished) - New law pas passed in 2006 that changed the wording; now you have to prove likelihood to cause dilution - court finally appealed new standard, and Victoria's Secret won.
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WHY EMPLOYEES JOIN UNIONS: - Dissatisfaction with working environment. ´Inadequate staffing ´Mandatory overtime - Dissatisfaction with compensation. ´Benefits. ´Non-competitive pay - Dissatisfaction with organization treatment ´Concern for job security ´Ignore complaints - Dissatisfaction with management style. ´Inconsistency in treatment by superiors. ´Lack of recognition ´Fear or intimidation Poor communications
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WHY SMALL BUSINESSES DO NOT WANT TO DEAL WITH LABOR UNIONS: - A union limits the owner's right to deal directly with his/her employees. The CBA usually constrains: ´The right to direct work ´The right to establish production levels ´The right to make company rules and policies ´The right to make work assignments ´The right to discipline employees ´The right to change production processes ´Union will try to limit the use of technology and outsourcing
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WILDCAT STRIKES: - A breach of the CBA's no strike/no lockout clause. ´An unauthorized strike. ´National union violates the labor code if it sends strike funds. ´Can be sued for actual (not punitive) damages. Strikers may be disciplined.
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