Issue-Spotter labor law question.

The following is a hypothetical situation that raises certain legal issues. Read it carefully and then with legal analysis. The answers should be based on how many legal issues to spot, how well the analysis is made, and how well the arguments and counterarguments are articulated. In the answer, use only the facts provided; do not make up any additional facts.

Hypothetical Scenario

Fastfood Restaurant Chain ("FRC") operates a chain of restaurants in New Jersey. On December 15, 2020, FRC announced that due to the pandemic, its customers have been less willing to eat at its restaurants. As a result, FRC said, its business has suffered and it raised the possibility of layoffs. The possibility of layoffs causes FRC's employees to decide to unionize.

On January 1, 2021, after the Restaurant Workers Union ("Union") successfully organized FRC's employees, the NLRB certified the Union as the collective bargaining representative of a bargaining unit of all non-managerial employees employed by FRC's restaurants.

In preparation for collective bargaining negotiations, the Union polls the employees to find out what they want to achieve in negotiations. The employees say they want a wage increase but that they care even more about getting a pension plan. Currently, FRC does not provide any pension plan for its non-managerial employees.

The employees also express their fears to the Union about the possible layoffs. In preparation for negotiations, the Union hires a consultant to study FRC's business, and the consultant prepares a report for the Union in which the consultant concludes that if FRC reduced its meal prices by 10%, more people would come to FRC's restaurants, FRC's business would improve, and layoffs would be avoided.

Finally, the employees tell the Union that they are annoyed that FRC requires them to pay for the uniform that it requires them to wear on the job.

At the first bargaining session between FRC and the Union on March 1, 2021, the Union makes a proposal to have FRC increase the employees' wages by 5% next year, provide them with a pension plan, cut the price of the meals served at its restaurants by 10%, and stop charging employees for the cost of the uniforms it requires them to wear.

In response, FRC counteroffers with a proposed wage increase of 2%. In addition, FRC's chief negotiator tells the Union that FRC will not negotiate over the pension plan or the price of the meals it serves. She explains: "Pension plans are very expensive to administer, and most restaurant workers don't care about pensions anyway. So we're not even going to discuss that subject. As for the prices we charge to our customers, that's none of your business, and we're not going to discuss that subject either." As for the Union's proposal that FRC provides the uniforms at no cost to employees, FRC's chief negotiator says "we believe it is appropriate that employees pay for their own uniforms, which they are free to keep and wear at home if they like. Besides, the cost is minimal. In any event, we won't pay for the uniforms."

The parties continue to meet on several additional dates in spring 2022, but make no progress in negotiations. The Union continues to seek a 5% wage increase, a pension plan, a 10% cut in meal prices, and an agreement that uniforms will be provided at no cost to employees. FRC insists on its proposal for a 2% wage increase, saying that that is its final offer. It also continues to refuse to discuss the Union's proposals about the pension plan and meal prices. On May 28, 2021, after no further change in the negotiating position of each party, FRC unilaterally increases pay for the employees by 2%.

On June 1, 2021, the Union calls a strike. On the same day that the Union calls the strike, the Union sends a letter to FRC saying "we are going on strike today to protest your unlawful refusal to bargain and your unlawful imposition of the pay increase." In a rally with striking employees, the Union's president tells the assembled employees that "this strike is about our dignity on the job, about decent pay, about retirement security, and about getting this company to take us seriously." One employee at the rally tells a newspaper reporter that he is striking because "I really need a bigger pay raise."

In response to the strike, FRC puts want-ads in newspapers around New Jersey that say that it has openings at its restaurants. The ads offer "a great opportunity for a career with us." Through this method, FRC hires replacements for approximately 35% of the strikers. Using supervisors as well as the replacement workers, FRC manages to continue to operate most of its restaurants.

After two months, the Union ends the strike, saying it will accept the 2% pay increase.

With the strike over, the strikers ask FRC for their jobs back. FRC reinstates most of the strikers, except it refuses to reinstate those whose jobs were taken during the strike by replacements, saying that the replacements have permanent employment. FRC also refuses to reinstate three employees who worked at a restaurant where no replacements had been hired. These three had been particularly vocal supporters of the Union during the strike, accusing FRC of being a bad employer. In a letter to those three, FRC management wrote, "We no longer believe that you are suitable for the FRC team."

On September 1, 2021, FRC and the Union enter into a collective bargaining agreement.

Article 3 of the collective bargaining agreement between FRC and the Union provides for a 2% wage increase.

Article 4 says "Employees shall be required to pay for their uniforms."

Article 5 says that "all disputes arising under this agreement shall be subject to arbitration. and all arbitration awards shall be final and binding."

On October 1, 2021, Harry Jones, an FRC employee, files a grievance against FRC because FRC refused to pay the cost of the uniform he is required to wear on the job. FRC denies the grievance. The Union then demands arbitration. FRC refuses to arbitrate the grievance. FRC writes a letter to the Union saying: "The grievance is frivolous. Article 4 of the contract is crystal-clear. We will not agree to arbitrate a grievance that has no merit."

On November 1, 2021, the Union sues in federal district court for an order requiring FRC to arbitrate the grievance. The district court ordered FRC to arbitrate the grievance.

The arbitration takes place, and on March 1, 2022, the arbitrator issues an arbitration award requiring FRC to pay the cost of Jones' uniform. In her award, the arbitrator writes: "I have considered the matter and, in my opinion, regardless of what Article 4 says, it is only fair that the Company should pay for the uniforms since it is requiring the employees to wear them."

FRC refuses to comply with the arbitrator's award and sues in district court to vacate the award (meaning, sues to have the award rendered null and void). The district court refuses to vacate the award. In an opinion, the district court judge writes: "The award is valid, and is final and binding under Article 5."

Questions:

Did HP commit any unfair labor practices? If so, what are they?

Was the district court correct in requiring FRC to arbitrate Jones' grievance?

Was the district court correct in refusing to vacate the award?

Could the Union have lawfully refused to take Jones' grievance to arbitration?