Legal Blog

Labor and Employment Telebrief 2.26.14

By Howard K. Kurman, Esquire An Edited Transcript.Howard-Kurman Issues Discussed

  1. Volkswagen employees in Chattanooga, Tenn.  voted against  unionizing.  Issues:  statements made against unionizing by people outside the company; neutrality agreements.
  2. San Francisco ordinance “banning the box”
  3. University of Mexico arbitration – termination of inventory clerk – “reasonable promptness” in discovery and addressing employee misconduct (progressive discipline )
  4.  BNA report –  arbitration decision re:  drug and alcohol testing of employees – Refusal to cooperate in the testing is grounds in itself for termination.
  5. Ketchum v St. Cloud Hospital – Minnesota federal district court decision – Termination of  employee terminated during approved FMLA leave  upheld.  (An employee on approved medical leave enjoys no immunity against terminating than any other employee if  there are  legitimate grounds that would justify terminating the employee if the employee had not taken the leave. )

Howard Kurman: I am going to talk about a few different things, they’re not all related, but they are very recent developments.

  1. Volkswagen employees in Chattanooga, Tenn. vote against unionizing – statements made against unionizing by outside politicians; neutrality agreements. 

In terms of union elections and labor relations, that may have some impact on particularly the South and maybe many of you who are even non-union companies, Volkswagen employees in Chattanooga, Tennessee, in a union election, board election, held on February 12th to the 14th, voted against representation by the United Auto Workers.  The vote was 712 to 626 with 89% of the employees participating in the election.  That is a high percentage, frankly, with this many employees. There are several interesting things about this election that I wanted to point out to you, particularly those of you who are nonunion companies but who may face some union issue or union representational issue in the near or far future.  First, the Volkswagen management coming out of Germany talked to the employees about setting up a works council prior to the election.  So, they were talking about the employees having a voice in how the plant was run even before the election was held, which is sort of a typical European model, not really an American model. Interestingly, the management of Volkswagen also agreed to a neutrality agreement with UAW under which Volkswagen agreed to not speak against or dispute the UAW’s representational efforts to unionize the plant, and it even gave the union access to the plant in order to meet with employees prior to the election.  Now, both of those things I certainly would not recommend in most cases, and I don’t think that most management labor lawyers would as well.  In exchange for the neutrality agreement, the union promised not to defame the company or strike during negotiations over a first collective bargaining agreement if the union were successful and the board conducted election.  The interesting thing about this situation was that while management for Volkswagen stayed neutral and did not campaign, nevertheless, there were frequent statements made by politicians and business leaders in the Chattanooga community speaking out against the unionization effort by the UAW.  One of those statements was by United States Senator Bob Corker who, a couple of days before the election, stated that if the workers at the Volkswagen assembly plant voted against the union the plant would be expanded to build a new SUV that was in development. Now, as you know, when nonunion companies are faced with a union election, it cannot make promises or benefits or threats to the employees because that is thought to detract from the objectivity that the National Labor Relations Act sets up or attempts to set up in a board conducted election.  But, here, there were statements not by Volkswagen management but by outside politicians and business people. After the  union lost the election, which by the way is a very significant loss for the union, because, unions have not had an easy time organizing in any area of the country much less the South, which is largely comprised of right-to-work states,* (See Closing Remarks – detailed definition of Right to Work state)  iis that the UAW filed unfair labor practice charges at the National Labor Relations Board, contending that the results of the election were tainted NOT  by statements that were made not by the management of Volkswagen but  by politicians and business people in the community.  To me, it is a very novel interpretation of the National Labor Relations Act, although, with this composition of the National Labor Relations Board, you never know what’s going to happen at the Board.   The other corollary action that happened is that employees at Volkswagen filed charges against the union, contending that the union had engaged in unfair labor practices and that the union put undue pressure on employees to sign authorization cards and, in essence, intervened in the action that the union filed against Volkswagen.   Take Aways   So, while this is something that happened in the deep South, and you may not think that it has much application to you if you’re doing business here in the North, I do believe it significant for a couple of reasons: First, it emphasizes the fact that you need to be very careful, if the union is seeking to organize you, about entering into neutrality agreements and allowing the union to have access to your facility.  I would not advise either one of those in 99% of the cases.  Second, It also sheds light on the fact that many times you’re going to have, in an anti-union environment, statements that may be made by management officials who are outside of the company (i.e.  management officials of different companies or politicians who are not part of the subject or target company) and we’re going to have to see what the Board does with this particular charge that’s been filed by the UAW.  This is a situation that has gotten a fair amount of publicity in the last week or two, and I think that we need to follow the story to see how it shakes out. 2. San Francisco ordinance “banning the box”    Another development involving a big city is San Francisco, which on February the 17th passed an ordinance, signed by Mayor Edwin Lee, so called “banning the box.”   Banning the box laws are those laws that prohibit employers from asking on an employment application whether an employee has ever been convicted of a crime. EEOC recent positions on prohibitions on employers’ asking about convictions of applicants Essentially, what the Equal Employment Opportunity Commission has stated is that they will only look favorably upon questions regarding convictions if they are done in an individualistic manner. i.e. where an employer inquires about the past conviction history, not arrests, but convictions of an applicant, and, if there is a positive response, where that employer undergoes an individual analysis, which would consider when the conviction took place, the seriousness of the conviction, and the nature of the conviction. Many cities and municipalities and four states have enacted ban the box laws. The four states are Hawaii, Massachusetts, Minnesota, and Rhode Island.  And, San Francisco has joined some municipalities in basically saying that not only will this apply to public employers, but it will apply to private employers as well. Take Aways There does seem to be a trend nationally towards these situations where both municipalities and states are placing handcuffs on employers with regard to written employment application which would ask questions about prior convictions. I certainly would not advise employers to relinquish the questioning of applicants about prior convictions, but, of course, if there are so-called ban the box statutes, you wouldn’t be allowed to put it on your application. You’d have to get to it after a person ostensibly passed an initial screening, and then you started to seriously consider that candidate as a person that you might be interested in for your company.  Another significant sort of statutory development. I want to turn my attention to two arbitration decisions that came out very recently. Normally, labor arbitration decisions may not have as much applicability to nonunion companies as you might think, but, in these two arbitration decisions, I do think they have applicability from a policy standpoint to all of you, whether you’re a unionized or nonunionized company. 3. University of New Mexico arbitration  – termination of inventory control clerk at university bookstore –  principles of progressive discipline (“reasonable promptness” required  in discovery and addressing employee  misconduct)  What happened The first case involves the border regions of the University of New Mexico.  In this case, an inventory control clerk for the university bookstore was terminated on the basis of four incidents, three of which occurred in October of 2012, one in January of 2013.  He received his notice of contemplated discharge in February for making stock adjustments without obtaining supervisory approval. What happened in this case is that there were three incidents in October of one year.  The employer, that is, the university, did not discipline the employee along the way or simultaneously with these incidents, and then bootstrapped the termination in February based on the three incidents in October and one in February.  Now, the union grieved, arguing that the discipline, the termination in February, was predicated on what they called stale issues that should have been addressed as they happened. The case went to arbitrator, Benjamin Scheiber, and I’m  reading  essentially from the report in the Bureau of National Affairs, which is a weekly publication in the labor relations field.  What this report says is that Scheiber observed that no discipline for the three October incidents was issued prior to mid February when the university informed the grievant that it intended to discharge him.   He held that the grievance discharge lacked just cause for two reasons. First, because the university failed to provide him with due process by delaying the imposition of discipline for the three events that occurred in October for four months.  Second, the university failed to carry its burden of proving that the clerk was guilty of any misconduct, in large part because of the delay in imposing discipline. As the report goes on to state, and I’m quoting, ‘Scheiber stated that most arbitrators agree that an employer must act with reasonable promptness in discovering and addressing employee misconduct and that discipline based on stale offenses is disfavored.  As time goes by, memories fade, witnesses depart, records are discarded, and it becomes more difficult for an accused employee to reconstruct events and marshal evidence on his behalf.  Delaying in banking discipline, he observed, also undermines progressive discipline by depriving an employee of the opportunity to correct his misconduct when it first occurs.  Scheiber ruled that the university’s four-month delay between the October incidents and its notice of intended action denied the grievant due process by unduly compromising his opportunity to disprove the allegation.’  Take Aways Now, I believe this case is pretty instructive for those of you who with some degree of regularity discipline employees, and the reason I think that it is a cogent decision is that it recognizes several principles in the field of industrial discipline: One is that while it’s okay and actually preferable to do a thorough and a complete investigation prior to the time that you discipline an employee, you simply can’t take an inordinate period of time to discipline an employee nor can you relinquish the opportunity that you would normally give an employee to be confronted with the evidence that you have as a matter of due process and to give you his or her feedback with regard to the situation at hand.  Secondly, from the standpoint of progressive discipline, you do not want to be in a situation of trying to bootstrap a discipline several months after you could have disciplined the employee for prior incidents.  Neither an arbitrator nor a judge or a jury will look kindly upon that kind of irregularity.  And, so, the principles described in this arbitration are equally applicable to your progressive discipline system, because, after all, the nature of a progressive discipline system is to progressively discipline an employee in a more severe fashion, hopefully in a corrective way so that the employee corrects his behavior and then, if he doesn’t, is subject to further and more severe disciplinary action.  If you forgo those intermediary disciplines and try and bank them for purposes of a later discipline, they will not be well regarded or credited by any fact finder, who is an objective neutral, out in the industrial relations world.  So, for those of you who discipline employees on a regular basis, take heed with regard to the principles that I just talked about in this particular arbitration. 4. Arbitration reported in BNA- drug and alcohol testing of employee A second arbitration that I wanted to mention to you, again very recent, and it has application I think for all of you out there who may do drug and alcohol testing of employees.  So here we had an employee who either did not, that, is he failed to or refused to or said that he could not give a breathalyzer test was terminated. What happened As it’s reported in BNA, the employee had been found asleep at his workstation by a supervisor who smelled alcohol on his breath.  The grievant claimed that he had taken Nyquil and admitted he could have dosed off.  He claimed that any alcohol in his system was from the Nyquil.  He then took a breathalyzer test and did not produce a sample.  The union in this case argued that Nyquil may have made the grievant winded and unable to produce a sample.  The tester’s technician, who testified in the arbitration, testified that he performs 250 to 400 alcohol tests per year, and he said less than 1% of the test takers were unable to produce a sample.  He said that the grievant appeared healthy and just did not want to produce a sample.  In this case, Arbitrator Mitchell Goldberg denied the employee’s or the union’s grievance.  He said there is no medical opinion supporting the proposition that taking the medication as the grievant claims he did and taking the Nyquil could produce the same result of preventing him from producing a testable sample.  Goldberg also noted that an employee’s refusal to cooperate with the test could lead to discharge and that other employees had been discharged for that offence.  Interestingly, in this little article from BNA, they talked a little about prior arbitration rulings, and they say most employees who claim that they are unable to take a test or alcohol test wind up losing their jobs.  This I found comical.  For example, Arbitrator Dennis Nolan upheld the discharge of an employee who claimed that he was unable to take a random drug test because he could only urinate once a day at 8:30 a.m.  Nolan said that excuse borders on the preposterous, which I think we all would agree. Take Aways Kidding aside, I think the instructive elements of this particular arbitration are these.

  • Those of you who do drug and alcohol testing and do it either pursuant to your handbook policy or pursuant to statutes – as you know in Maryland there are statutes on drug and alcohol testing, as there are in other states – need to make sure that in your policy it is stated that an employee who fails to cooperate or refuses to cooperate will be deemed to have a separate offence, and, you certainly can state that the failure or refusal to cooperate in any kind of a drug and alcohol test will be deemed to be tantamount to a positive finding.  And, that’s essentially what the arbitrator found here, that irrespective of the ridiculousness of the grievant’s excuse for not taking or refusing to taking or saying that he couldn’t take the test, that it also constituted a failure of cooperation with the company’s drug and alcohol test, thus independently justifying the termination of his employment, and that’s an important principle again for those of you who do drug and alcohol testing.

5. Ketchum v St. Cloud Hospital – Minnesota federal district court case   The last thing that I want to talk about today is a case that was decided by a federal district court in Minnesota at the end of January, a case called Ketchum v. St. Cloud Hospital.  And, in this case, we have an employee named Ketchum who sued the Defendant St. Cloud Hospital, alleging that she had been unfairly and discriminatorily terminated during her FMLA absence, which had been approved. What happened in this case is that this is an employee who had difficulties getting along with people while she was employed, and, in fact, very shortly before she went out on an FMLA leave, a legitimate FMLA leave for breast cancer, she had been given a formal disciplinary action and placed on three months’ probation because of her performance related incidents and her inability to get along with other employees.  During the time that she was still on FMLA absence, she comes in with her husband and her grandchildren to make a visit to the workplace.  Her husband stares at some co-workers in a very threatening manner, and this begins a dialogue of the employees, who were still there after she left, with their boss asserting certain threats that this employee had made while employed concerning the fact that she and her husband were into the motorcycle scene and had a hit list and knew how to take care of people that didn’t agree with them.  This initiated a full investigation by the hospital that interviewed several people, even checking some police records, and, to make a long story short, that during the time that this woman was still out on a leave of absence,  the investigation concluded that she was a threat or a potential threat to other employees and that her past behavior would not justify continuing her employment despite the fact that she was on a legitimate FMLA absence.  And, as the court states, and I know that we’ve talked about these kinds of cases before, but, as the court states, an employee who takes FMLA leave has no greater protection against termination for reasons unrelated to the FMLA than she did before taking the leave.  Succinctly stated, if an employer can prove it would have terminated an employee even if she had not invoked the FMLA, it will not be liable.  The employee had argued in this case that she did not engage in the conduct that was attributed to her, and, significantly, the court stated the question is NOT whether she was guilty as charged but rather whether the hospital had a good faith belief she had engaged in the alleged misconduct.  And, they concluded, based on a thorough investigation that the company did, that the company certainly had a good faith belief about this employee’s past conduct or misconduct and any potential threats in the future.  And, so, the important point about this particular case is that an employee who is out on an approved medical leave, whether it is ADA related or FMLA related, does not enjoy immunity from potential termination if there are legitimate facts that come to light, while that employee is out on a leave, that would justify terminating the employee if the employee had not taken the leave.  So, many times, and I’ve had this situation many times with clients where they discovered during an employee’s leave many kinds of regularities, whether they are financial irregularities or other kinds of behavior irregularities, they do investigations, and then the decision is made to terminate the employee irrespective of the fact that that employee is on an FMLA leave, because the employee would have been terminated had the employee remained an active employee.  So, again, another significant decision, even though it’s in Minnesota, it is clearly in the main stream of opinions of federal circuit courts of appeals and federal district courts.  CLOSING REMARKS Those are the developments in the last two weeks.  As usual, if anybody has any questions, I’m glad to entertain them at this point.  Or, if you’d rather, you know, do in a private setting, you can call me on my direct line, 410-209-6417, or my e-mail address, hkurman@offitkurman.com. If there are no questions, the next telebrief will be on March the 12th.  And, some of you have asked about the executive breakfast session.  I think I’ve mentioned we’re revamping that, and, instead of two two-hour sessions, we’re going to have one four-hour session, which will be in May, and this will be a comprehensive overview of those developments in the entire labor relations world and employment world that have taken place in the first half of 2014 in the wage and hour ambit, the discrimination ambit, labor relations ambit, policy making ambit.  So, it should be a pretty comprehensive discussion on things that hopefully will be of practical use to you for the second half of 2014.  And, then, we’ll have another one of those in the fall or late fall to catch up.  So, any questions or comments? Upcoming Events: Next Telebrief:  Wed., March 12, 9 am ET Executive Session –  A comprehensive overview of the most significant developments in L & E worlds  during first half of 2014  Expanded to 4 hours – May (date and place TBD) Definition of “Right to work” state (from  #1  Volkswagon case  described above)  *Right -to-work” state merely means that it is illegal in those states for a company and a union to agree to what’s called a union security provision, that is, a requirement in the collective bargaining agreement that an employee once hired or being on staff join the union; so, in a right-to-work state, for instance, Virginia is a right-to-work state, it would be a illegal for a union and a company to agree in a collective bargaining agreement to mandate that employees, either new employees or incumbent employees, must join the union as a condition of retaining employment