The following post has two assignments namely;
Select a person to interview that is a member of a union through their employer, and has been with their employer for at least one year AND has insight to their union activities to be able to provide enough information to the questions you will ask them. This can be a family member, friend, neighbor, etc. This person must be familiar with their employer and union, and be willing to share that information with you, so that you have sufficient information to complete this assignment. You will not need to include their name, but will need to include the information that they share about the company for which they work. Many teachers, government workers, etc. are part of a union, so ask around to find someone to interview.
– Interview the person you select and ask them the following questions. Take notes on their responses, as you will need to submit these as a reference. Interview Questions:
a. What is the name of your employer and the name of the union? What is your job title? How long have you been with this employer? How long have you been a member of the union?
c. How does management work with the union? Do you feel that management follows the rules? Why or why not? (SLO 2)
d. How do you interact with the union? How does the union communicate with you? What would an employee do if he/she wanted to file a compliant through the union? (SLO 3)
e. From what you can see, how do the union and your employer negotiate a new contract? Is this normally seen as a positive or negative process, and why? (SLO 4)
f. Overall, do you feel that the union benefits you and other employees? Why or why not?
1. Give a summary and analysis of the interview you conducted (including the name of the employer and union) and tie the interview comments to what you have learned about the union and the four SLOs covered in our course (see above). Provide in-depth analysis about the union and labor management relations, and how this aligns to our course SLOs.
5. Type up the interview comments for questions #a-g, and include these at the end of your paper as a reference. The interview comments DO NOT count toward your 2-3 page paper, they are simply a reference.
2.The rule in Foss v Harbottle
The rule in Foss v Harbottle or the proper plaintiff rule is the fundamental right of the company through its organs to make the litigation decision in relation to a breach of an obligation owed to it[i]. Derivative actions could only be brought in relation to breaches of duty which injured the company and benefited the directors personally and where the directors in breach of duty—the wrongdoers—controlled the general meeting through their shares. This meant that derivative actions were simply unavailable in relation to negligence claims against any company or in relation to any claim at all against a director of a widely held company[ii].
Author provides a way in which a derivative action could be justified: first, where the shareholder meeting does not have the power to ratify a wrong, as in such a situation the courts’ practical concern that its actions could be undermined at any time by shareholder confirmation is no longer relevant; and secondly, where the corporate organs cannot be set in motion in the company’s interests because of some practical barrier to action or because the organs are controlled by the parties who have allegedly wronged the company[iii].
According to the article the wrongdoer control restriction, at common law derivative actions can only be brought in relation to certain wrongs which, “disloyally”, “serve the directors personal interests”. This category of wrongs, often referred to in the cases as “fraud”, encompass breaches of duty which result in loss for the company and gain for the breaching director[iv]. As an example of the rule author referred to in Burland v Earle, where wrongs classified as “fraudulent character” where “the majority are endeavoring directly or indirectly to appropriate to themselves money, property, or advantages which belong to the company, or in which the other shareholders are entitled to participate”[v]. Such wrongs are often said to be non-ratifiable wrongs[vi].
The Act provides that a derivative claim can only be brought in accordance with the Act and removes any wrong-based restriction by providing that a claim may be brought in relation to any breach of duty, negligence, default or breach of trust by the director. The “fraud” precondition to the “fraud on the minority” exception has clearly, therefore, been abolished. This in itself is a notable change, which increases the exposure of directors to liability for breaches of the duty of care[viii].
As the Companies Act 2006 makes no express statement about the status of the common law rules, if the common law proper plaintiff rule and wrongdoer control requirement have been abolished then we must identify such a change in the law by “necessary implication”. A strong argument for the implied abrogation of the proper plaintiff rule is that by providing that derivative claims can “only be brought” in accordance with Part 11 that the Act replaces the common law rules, leaving the Act’s provisions as the exclusive point of reference for considering the permissibility of derivative claims. This is the position taken by Lewison J in Iesini v Westrip Holdings. This appears to leave no room for the continuing application of the proper plaintiff rule as it is not referred to explicitly in Part 11[ix].
Author provides understanding of the meaning of “prima facie case” which is derived from the pre-Act case law. The preliminary procedure introduced by Prudential Assurance v Newman used the term “prima facie case” to refer to both (1) a prima facie case on the merits, and (2) a prima facie case that “the action falls within the proper boundaries of the exception to the Rule in Foss v Harbottle[x]”.
[vii] Companies Act 2016.