Faculty Union Strikes Out, October 31, 2006
Colleges often give credit for courses taken at other institutions, even at high schools. This makes perfect sense: why should an incoming student take the same class again, when that time could be better spent learning new material?
Ignoring the common sense in support of this practice, the faculty union at a community college objected when credit was given for passing an introductory psychology course at the high school level. Under the collective bargaining agreement, the union argued, only union members can teach that class. Their grievance charged that the college violated the bargaining agreement by giving the credit.
Denying the grievance, the arbitrator pointed out the obvious: (1) the college cannot control who teaches at the local high school, (2) nothing in the collective bargaining agreement prohibits the college from granting credits for courses taught by someone other than its own faculty.
In re Community College of Beaver County and Community College of Beaver County Society of the Faculty, 122 Labor Arbitration Decisions (BNA) 1462 (March 2, 2006).
A Bloody History, October 31, 2006
On the surface, it didn’t seem like such an unreasonable request. A nurse with a pacemaker in her body asked to be excused from a part of her task that brought her within ten feet of a magnetic field that might damage her heart-helping device. So, instead of taking patient histories and drawing blood, the nurse asked that she only take histories.
The employer refused this accommodation to her disability, the union grieved it, and an arbitrator upheld the employer’s decision. Why? Well, it seems that when a similar issue had come up years before, the employer had done the reasonable thing and granted the accommodation, permitting a nurse to perform only part of the task. But then came a union grievance! To settle that past case, an agreement was reached (since confirmed by long-standing practice) that the same nurse must take the history and draw the blood.
Unions sometimes have short, convenient memories. This time, the arbitrator called them on it.
In re American Red Cross and Michigan Council of Nurses and Healthcare Professionals, Local 79, 122 Labor Arbitration Decision (BNA) 1441 (June 19, 2006).
Character Doesn’t Matter, October 31, 2006
How can we trust you to be sober when you’re driving a bus, if you lie to us about being sick when you’re really sobering up from an alcoholic binge? Based on that logic, the Kitsap County transit authority fired an employee (referred to as "K___") who had called in sick, claiming to have picked up a "flu bug." Later, he admitted to his union steward that he had fallen off the wagon, and it was the effects of alcoholism that caused his absence.
The transit workers union grieved the discharge, and the arbitrator reinstated the driver. The arbitrator’s decision speaks for itself:
"The employer's argument that K__ will come to work impaired by alcohol is speculative. Discipline should not be based on speculation of what an employee may do, but on what actually has occurred. K__ was dishonest about the reason for his absence. At the same time, he did not attempt to deceive the employer into allowing him to drive a public transit vehicle while intoxicated. In this particular situation there were no safety implications due to K__’s dishonesty. He did not put the public, nor himself, at risk by being dishonest about the reason for his absence from work. The employer disciplined K__ based on a speculative safety risk. K__’s dishonesty does not rise to a serious enough level to result in termination."
In other words, character doesn’t matter. We can depend on employees to compartmentalize their dishonesty, always telling the truth when public safety is concerned. Liars will only lie when the lie does no harm.
Right ...
In re Kitsap (Wash.) Transit and Amalgamated Transit Union, Local 1384, 122 Labor Arbitration Decision (BNA) 1361 (August 21, 2006).
Deaf Applicants Can’t be Excluded From Certain Driving Jobs, October 12, 2006
Employer’s should be careful in excluding a class of potential employees by using standards that don’t apply to the positions in question. That basic, well known rule was broken by UPS, said the Ninth Circuit, when the company refused to consider deaf workers for jobs driving smaller vehicles not covered by the DOT’s hearing standard. Bates v. United Parcel Serv. Inc., No. 04-17295 (9th Cir. October 10, 2006).
The court affirmed the district court’s holding for a certified class of deaf workers, rejecting UPS's argument that the workers had the burden to show that they could perform the job safely. Instead, said the court, the applicants had to show only that they met all the requirements for the job other than the challenged requirement.
UPS could not demonstrate that voluntary use of the DOT standard was "job-related and consistent with business necessity" as required to defend against a claim of adverse impact. The court also held that UPS failed to present evidence showing either that substantially all deaf drivers present a higher risk of accidents than drivers who are not deaf, or that there are no practical criteria for determining which deaf drivers present a heightened risk to the company.
Other Duties As Assigned? October 11, 2006
From the "how about that?" file: A California court has upheld an arbitrator’s award that Hustler magazine publisher Larry Flynt created a sexually hostile work environment for a former secretary who had to deal with Flynt's trysts with prostitutes in his private office. Raymond v. Flynt, No. BC300130 (Cal. Super. Ct. October 2, 2006).
Liz Raymond was a secretary at Larry Flynt Productions Inc. Raymond claimed that she, along with other female administrative assistants, had to "run interference" when Flynt's wife (who also worked at LFP), showed up when Flynt was pre-occupied in his office with one of his "special friends." The arbitrator noted that "Loud noises of sexual activity and gratification frequently emanated from [Flynt’s] office during these visits," and that "[o]n occasion the sounds disrupted business meetings in adjoining offices to the extent that Ms. Raymond and other female executive assistants had to relocate or reschedule meetings." Employees also had to find cash to pay the prostitutes, the arbitrator noted.
Awarding Raymond $1.1 million, the arbitrator held that "The fact that the business of Mr. Flynt and LFP, Inc. is different than most businesses and may make them [workers] feel isolated from the mainstream business community, does not alter their obligation to abide by the legal standards applicable to all employers with regard to treatment of employees and their working environment."
Union Buttons at Work - A Hot Topic, October 10, 2006
The NLRB and the Fifth Circuit have decided two union button cases in the past week.
In Starwood Hotels & Resorts Worldwide Inc., d/b/a W San Diego, 348 N.L.R.B. No. 24, (September 29, 2006) the NLRB held that a San Diego hotel did not violate the NLRA when it prohibited a food delivery server from wearing a union button in public areas. The hotel, however, illegally extended the ban to nonpublic areas. The Board also held that the hotel could stop a cook from wearing a union sticker in the kitchen.
"The union button would have interfered with the [hotel's] use of a particular ... server uniform (professionally-designed all-black shirt, slacks, and apron) to create a special atmosphere for hotel customers," said the Board. But wearing the button in nonpublic areas "could not--and did not--interfere with the unique atmosphere that the [hotel] sought to create for hotel guests." Special circumstances justified stopping the cook from wearing button because the evidence showed that "the stickers posed a real danger of falling off and thereby presented a contamination risk."
In CWA v. Ector County Hosp. Dist., d/b/a Med. Ctr. Hosp., No. 03-50230 (5th Cir. Oct.5, 2006)(en banc), a public hospital in Odessa, Texas, did not violate the First Amendment by prohibiting a carpenter from wearing a union button on his uniform stating "Union Yes." Reversing a decision in favor of the CWA the appellate court held that the Hospital’s interests outweighed the employee’s free speech rights.
The employee’s "speech" by wearing the button, said the court, "touched upon or involved matters of public concern only insubstantially and in a weak and attenuated sense," A hospital "may legitimately conclude that its uniform non-adornment policy furthers its mission by neutrally fostering a tranquil and peaceful, as well as a neat, clean and care focused, atmosphere for its patients and visitors."
EEOC Can Release Employer Information Without Notice, October 10, 2006
What can happen to the information an employer submits when responding to an EEOC charge of discrimination? According to the U.S. District Court for the District of Columbia, it can be distributed to anyone the EEOC wants, if the Commission believes it "is deemed necessary for securing appropriate relief." Venetian Casino Resort v. EEOC, No. 00-2980 (RJL) (D.D.C. Sept. 29, 2006). The case was on remand from the D.C. Circuit, 409 F.3d 359 (D.C. Cir. 2005).
In this case, the Casino refused to supply information subpoenaed by the EEOC in its investigation of numerous charges, contending that the information contained trade secrets. Section 83 of the EEOC’s Compliance Manual permits the Commission to disclose information from closed Title VII and Americans with Disabilities Act case files without prior notice to the party who submitted the information, regardless of whether it is considered confidential. The Casino argued that the Commission's policy constituted a "back door" through which charging parties, their counsel, and incidental third parties could get access to open case files without the need for a FOIA request. The Casino sued, seeking an order that required the EEOC to notify an employer when it is contemplating disclosure of that data to outside parties.
Title VII provides that "charges shall not be made public by the Commission," but the EEOC’s regulations permit pre-litigation disclosure of charges and investigative information to the parties or witnesses when such disclosure "is deemed necessary for securing appropriate relief." 29 CFR § 1601.22. The Court relied upon this regulation and the Supreme Court’s decision in EEOC v. Associated Dry Goods Corp., 449 U.S. 590 (1981) to hold that the EEOC’s practice is legal.
Employers should recognize that anything they submit to the EEOC could one day be released to third parties, not just to the individual who filed the charge.
Chicago Jury Awards Construction Contractor 2.35 Million Dollars In Defamation Suit Against Union, October 6, 2006
by Eric Paltell
A Chicago jury recently awarded over two million dollars in damages to a home builder who was the subject of a vicious labor campaign by a labor union. The jury found that the Regional Council of Carpenters and three union organizers had defamed the builder by distributing handbills that suggested that the contractor built poor quality homes.
The dispute originated in the Spring of 2005, when the Regional Council of Carpenters began targeting Maki Construction for failing to pay its carpenters "union scale" wages and benefits. Ironically, the owner of the company, John Maki, had been a unionized carpenter for 35 years before establishing his own business. Maki resisted the union's demand, which led to picketing at Maki job sites and a handbill campaign. The handbill included a limerick that rhymed the word "Maki" with "crappy," and attacked the quality of Maki homes.
Although labor unions are allowed some leeway in making derogatory comments about employers in the context of a labor dispute, there are boundaries. In this case, the Judge ruled that the limerick at issue went to the quality of houses, and not wages and benefits, which removed the attacks from the protection granted to statements made in the context of a labor dispute.
The court's decision J. Maki Construction Co. v. Chicago Regional Council of Carpenters, Ill. Cir. Ct., Lake County No. 05-L-503 (verdict 9/20/06), shows that an employer subjected to defamatory remarks by a union does have some weapons in its arsenal to fight back. In fact, a California jury recently awarded 17.3 million dollars in damages to Sutter Health after the UNITE HERE union mailed postcards to consumers claiming that Sutter Hospital's due not ensure that their bed linens are free of "blood, feces, and harmful pathogens." Hopefully, union members will not want to see their dues dollars used to satisfy multi-million dollar jury verdicts and pay legal fees will discourage their unions from using these outlandish and illegal tactics in the future.
Nlrb Issues New Standards For Determining Supervisory Status, October 6, 2006
by Eric Paltell
On October 3, 2006, the National Labor Relations Board ("NLRB") issued as series of long-awaited decisions which set guidelines for determining who is a "supervisor" under the National Labor Relations Act. In three decisions, the NLRB clarified standards used to determine which employees are eligible for union representation. These standards may have a significant impact on the outcome of future NLRB union representation elections.
The lead NLRB decision, Oakwood Healthcare, Inc., 348 NLRB No. 37 (released 10/3/06) involved a bargaining unit of 181 registered nurses at Oakwood Heritage Hospital in Taylor, Michigan. The NLRB ruled that the 12 RN's who serve as charge nurses on a permanent basis, but not those who perform charge nurse duties on a rotating basis, are supervisors. The Board found that the permanent charge nurses were supervisors because the regularly assign staff to patients and exercise independent judgment while doing so. On the other hand, the rotating charge nurses did not exercise supervisory authority for a substantial part of their work time.
The test articulated by the NLRB for determining supervisory status focuses on the duties of the employees. The Board found that employees who assign other employees to overall duties, are responsible for directing subordinates to undertake specific tasks, and have the discretion to do so without close direction from management, are "supervisors" under Section 2(11) of the National Labor Relations Act.
The Board went on to provide explanation of what is meant by each of the three components of the supervisory status test. With regard to the term "assign," the Board offered examples of how the term would be applied in the healthcare setting. It explained that "if a charge nurse designates an LPN to be the person who will regularly administer medications to a patient or a group of patients, the giving of that overall duty to the LPN is an assignment." On the other hand, merely "ordering an LPN to immediately give a sedative to a particular patient does not constitute an assignment." The Board explained the distinction as one between "the charge nurse's designation of overall duties to an employee," as opposed to "the ad hoc instruction that the employee perform a discrete task."
In defining the phrase "responsibility to direct," the Board focused on whether or not the employee is "accountable for the performance of the task by the other, such that some other adverse consequence may befall the one providing the insight if the tasks performed by the employee are not performed properly." The Board indicated it will look at whether the employee has the authority to take corrective action against another employee in making this determination.
As for the third component of the test, whether or not the individual exercises "independent judgment," the NLRB followed the Supreme Court's 2001 decision in NLRB v. Kentucky River Community Care, Inc. The NLRB found that an employee is only exercising independent judgment if their actions are not dictated by detailed verbal or written instructions. The Board offered as an example a decision to staff a shift with a certain number of nurses, and found that it would not involve independent judgment if it was determined by a fixed nurse to patient ratio. On the other hand, if a hospital had a policy which details how a charge nurse should respond in an emergency, but the charge nurse has the discretion to determine when an emergency exists or the authority deviate from that policy based upon the charge nurse's assessment of the circumstances, his or her conduct would involve the exercise of independent judgment. Likewise, hiring decisions involve the exercise of independent judgment if the nurse is "called up to assess the applicant's expedience, ability, attitude, and character references, among other factors."
Although many representatives of organized labor have opined that the NLRB decisions are "devastating to workers in the healthcare industry" (as stated by John Sweeney, President of the AFL-CIO), other labor relations professionals do not see the case as having such a dramatic impact. It should be noted that three of the four groups considered in the NLRB cases were determined to be non-supervisors (and only 12 of the 181 nurses in the Oakcrest Healthcare case were considered supervisors), making it unlikely that entire bargaining units will be stripped of their representation rights. However, employers should now pay close attention to the duties given to charge nurses and other employees with similar levels of responsibility. If these employees are presently unrepresented, employers should make sure their duties and job descriptions are consistent with the new NLRB standards to reduce the risk that these persons will be subject to a union organizing campaign.
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