Category Archives: In Our Opinion…

Termination Upheld When Safety Violation Was Intentional And There Were Prior Disciplines

The Labor Arbitration Institute have arbitrators discuss hypothetical employment arbitration scenarios and state how he/she would have ruled. These “decisions” by arbitrators can be helpful in assessing how an arbitrator would rule in real world cases. In this scenario, a two-year employee rigged one of the two handles/levers on a press machine so that the machine would go faster and to alleviate some pain in his left arm that was hurting due to carpal tunnel syndrome. All five arbitrators on the panel would have upheld the discharge because the two levers were specifically there for safety reasons, the conduct was intentional, there was no prior request for an accommodation for carpel tunnel, he had prior discipline for other types of non-safety incidents, and the fact that the Company’s investigation may not have been 100% thorough was adequate enough.

What we can learn from the conclusions these arbitrators came to is that prior disciplines, even if they are for dissimilar conduct, can be used against you as progressive discipline, especially if it’s within a short span of time, and that relying on incomplete training or investigation as a basis for turning over a discipline/discharge comes up short in the face of other factors such as the ones discussed above.

Below is the complete discussion as issued by the Labor Arbitration Institute.

Conference Reporter – Labor Arbitration Institute

Safety Violation with a Poor Record

At this month’s program in Miami, the arbitrators on the panel discussed a case of a 2-year employee. He was a press operator. He had two years with the company, but had bid into a press operator position only 4 days earlier.

The press has two handles or levers. The reason for this is to ensure that the operator does not have either hand near the pinch point. In other words, the operator must use both hands at the same time in order for the press to work.

Four days into the job, the employee is discovered to have tied up the left-hand lever to a post. This allowed him to operate the press with just the right-hand lever. The supervisor asked him why he did this, and he gave two reasons. 1) he could work faster and thus, earn more incentive pay (true); and 2) his left arm was hurting due to carpal tunnel syndrome.

He was discharged for reasons which the panelists address below.


All five arbitrators on the panel would have upheld the discharge. What is interesting about this is how strongly they all felt, that:

1. There may not be a rule which specifically covers two levers, but the employer can rely upon its general safety rules.
The company went to the expense of providing two levers. These safety devices are there for a reason. The purpose of the device is to keep the employee out of harm’s way. The employee is jeopardizing his own safety.

2. It was intentional.
The union cited two prior cases in which employees were given a written warning. But in each case, the employees committed a one-time mistake. Both were the result of not thinking, and it doesn’t appear that either employee acted deliberately. On the other hand, the grievant did this for 3 days and it was intentional. In fact, is he cheating the other employees by gaining incentive pay that they cannot obtain the same way?

3. He didn’t ask for an accommodation.
He could have asked for an accommodation based on the carpal tunnel, but he didn’t.

4. He had a poor record.
He is a two-year employee, and he has this record: written warning for graphic statements to a supervisor and two written warnings & a 3-day suspension for attendance violations.

5. The Company investigation was adequate enough.
The union argued that the investigation should have included an interview of the trainer. Then, management would have learned that his training lasted only 15 minutes. The company counter-argued that the co-worker who trained him was only a few feet away on each of the 4 days that he worked, and thus available for any retraining. All of the arbitrators on the panel felt that an investigation does not have to be 100 percent. A lesser investigation will not nullify the discipline when the employer’s reasons for the discharge (#1-#4) are as strong as they are here.

Workers’ Compensation Recipients Not Required To Reimburse Employer From Settlement Proceeds Allocated To Pain And Suffering

Employees who receive workers’ compensation benefits may not sue their employers in tort.  G.L. c. 152 Sec. 24.  Employees may, however, file claims against third parties.  G.L. c. 152 Sec. 15.  If the employee recovers damages from the third party, the employer is entitled to a statutory lien on the recovery, unless the recovery is greater than the amount the insurer paid the employee.  In that case, the employee may keep the “excess,” which is defined as “the amount by which the gross sum received in payment for the injury exceeds the compensation paid under this chapter.”

In DiCarlo v. Suffolk Construction Co., decided by the SJC on Friday, an employer who had paid out workers’ compensation benefits to an injured employee was seeking a portion of the “pain and suffering” damages the employee received from a subcontractor whom the employee had sued in tort.  The damages arose from a settlement agreement.  The employee agreed to accept less money from the third party than he had received in total from the employer in workers’ compensation benefits, but the agreement specifically allocated a percentage of the payout to pain and suffering.  The employer argued that pain and suffering damages should be included in its lien.  The employer took the position that the “gross sum received in payment for the injury” included pain and suffering.

However, the SJC allowed the settlement agreement to carve out pain and suffering damages for the benefit of the employee.  The court held that the workers’ compensation statute does not allow an employer to be “reimbursed” for pain and suffering damages, because an employee cannot recover for pain and suffering under the workers’ compensation statute – only for wages.  The court clarified that an insurer “cannot be reimbursed for something that it did not pay.”  The decision can be read here.

Department Cannot Refuse To Reinstate Officer After Arbitrator Determines Shooting Was Justified

Late last year the Oregon Court of Appeals upheld the reinstatement of a Portland Police Officer, rejecting the city’s attempt to negate an arbitrator’s order under the guise of “public policy.” The case Portland Police Ass’n v. City of Portland arose out of the 2010 shooting death of a man named Aaron Campbell by an Officer Frashour. While responding to a disturbance at Mr. Campbell’s house, Officer Frashour fatally wounded the man, mistakenly believing the decedent was reaching for a gun in his waistband.

Portland’s police chief fired the officer in response to the incident after determining Officer Frashour had violated the city’s physical and deadly force policies. The Portland Police Association grieved the termination and, after a 16 day hearing, an arbitrator found Officer Frashour’s actions to be reasonable and ordered his reinstatement to the force. Despite this exoneration, the city refused to reinstate the officer. At the union’s appeal to the Employment Relations Board, the City contended that the award was unenforceable under ORS 243.706(1), which reads, in relevant parts; “as a condition of enforceability, any arbitration award that orders the reinstatement of a public employee . . . shall comply with public policy requirements . . . including but not limited to policies respecting . . . unjustified and egregious use of physical or deadly force.” In short, it was Portland’s position that the arbitrator did not have the authority to reinstate an officer who had violated the city’s stated public policy goal of preventing the unnecessary use of force by police.

The Board rejected the city’s position, finding that, because the arbitrator determined Officer Frashour was not guilty of the conduct for which he was disciplined, the statute was inapplicable. The Court of Appeals agreed with the Board’s determination that the statute only applies when an arbitrator finds an officer violated the city’s use of force policy, but nonetheless elects to alter the employer’s disciplinary decision. Essentially, because the city agreed to resolve certain labor disputes through binding arbitration, it could not overturn the arbitrator’s findings of fact regarding just cause simply because it disagreed with the arbitrator. Ultimately, the Court of Appeals’ decision supports the sanctity of arbitrator’s findings and emphasizes to public employers that they cannot play judge, jury, and executioner when it comes to employee discipline.

The full text of the case can be read here:

Affordable Care Act’s Cadillac Tax on High Cost Health Plans has been Delayed Two Years

The Affordable Care Act (ACA) (a/k/a “Obama Care”) contains a provision that would impose a 40% non-deductible tax on higher cost health plans. The tax was scheduled to go into effect in 2018 on plans whose total annual cost exceeds $10,200 for individual and $27,500 for family coverage. Insurances carriers would be responsible for paying the tax but the burden ultimately would fall on employers and individuals with high cost plans. The Kaiser Foundation predicts that by 2018 26% of employers would be assessed the Cadillac Tax on at least one of their health plans if plan design remains the same. This is why many employers have indicated a reluctance to agree to any collective bargaining agreement beyond 2018.

In December, the U.S. House of Representatives released a tax bill entitled “Protecting Americans from Tax Hikes Act of 2015.” The bill was ultimately passed by Congress and signed into law by the President. It delays implementation of the Cadillac Tax until 2020. Analysts speculate whether the tax will ultimately be repealed before it goes into effect.

Accordingly, employers may no longer rely on the Cadillac Tax to avoid negotiating agreements that extend beyond 2018. It is likely that they will continue to be reluctant to any agreements extending beyond 2020 when the tax currently is due to take effect.

Anonymous Secret Santa Thank You Left on Patrol Car

As a former SWAT team member, this police officer approached the small white package left on his police vehicle cautiously. It turned out to be a sweet “survival kit” of candies left by an anonymous Secret Santa thanking law enforcement officers like him for his service. For example, Lifesavers to “remind you of the many times you have been one.” A nice gesture of appreciation to those who keep us and our families safe.

The full article can be found here:

Strict Enforcement of Work Rules By Cleveland Fire Department

The Cleveland Firefighter’s recently-created Integrity Control unit has investigated dozens of alleged work rule violations since its inception. The unit’s investigations have uncovered numerous instances of misconduct, ranging from minor infractions to possible felonies.

Particularly noteworthy is the case of one firefighter, whom investigations revealed used his city-issued cell phone for personal reasons, namely to arrange and discuss dates. Said firefighter was suspended and ordered to pay back the City of Cleveland over $2,500.

Frank Szabo, President of the Cleveland Firefighters Union, acknowledged that it is inevitable that some individuals on the force will attempt to violate work rules. However, he also criticized the Department’s sometimes ambiguous policies, which the union believes fail to put firefighters on adequate notice regarding what precise behavior constitutes a violation.

The validity of such objections notwithstanding, the Cleveland cell phone case and other cases like it serve to emphasize the importance of complying with reasonable work rules—so far as employees can properly ascertain what those rules are. Both professionally and monetarily, the consequences of rule transgression may be severe, particularly where employers have entire units dedicated to performing internal investigations and uncovering misconduct.


Micro Units – A Toe Hold for Organized Labor

The NLRB ruled this week that a group of 162 skilled machine maintenance workers assigned to Volkswagen’s Tennessee Facility should be allowed to vote on whether they want to be represented by the United Auto Workers. This election comes on the heels of the UAW’s loss in the representation vote for all hourly employees in that same facility and VW’s diesel emissions scandal.

Within this shift of strategy, a valuable lesson of intelligent persistence can be found.   Rather than become mired, the UAW keeps deliberately pushing to expand organized labor in the South. In a week that marked the hundred year anniversary of the death of Joe Hill, their efforts should be celebrated.

Find the UAW’s press release here.

BMC Judge Reinstates Tom Finneran’s Pension Benefits

In a fairly surprising turn of events, on October 9, 2015, the Honorable Serge Georges of the Dorchester Division of the Boston Municipal Court ordered the State Retirement Board to pay former Speaker of the House Tom Finneran what the media has reported to be hundreds of thousands of dollars in pension benefits retroactive to January of 2007 and activate his benefits prospectively.

Previously, the State Retirement Board had ceased to pay Mr. Finneran his M.G.L. c. 32 superannuation benefits. According to the decision, this occurred after Mr. Finneran pled guilty to willfully making misleading and false statements under oath while testifying in his capacity as Speaker in Federal Court regarding a voting rights action that challenged election redistricting at the start of the century.

The State Retirement Board had ruled that this conduct violated M.G.L. c. 32 § 15(4) which states:

(4) Forfeiture of pension upon misconduct.  In no event shall any member after final conviction of a criminal offense involving violation of the laws applicable to his office or position, be entitled to receive a retirement allowance under the provisions of section one to twenty-eight, inclusive, nor shall any beneficiary be entitled to receive any benefits under such provisions on account of such member. The said member or his beneficiary shall receive, unless otherwise prohibited by law, a return of his accumulated total deductions; provided, however, that the rate of regular interest for the purpose of calculating accumulated total deductions shall be zero.

In applying this statute and applicable case law to Mr. Finneran’s guilty plea, Judge Georges stated in summary that:

Turning to the issue whether the Board’s decision that Finneran must forfeit his pension is legally tenable, I conclude that it is not. Although the record indicates that Finneran’s conviction referenced his public employment, inasmuch as the position Finneran held at the time of his perjured testimony and at all times relevant thereto, there is no substantial evidence to support the Board’s conclusion that Finneran’s conviction bore a direct factual link to his position as a House member and/or Speaker. Additionally, there is also no substantial evidence to support the Board’s conclusion that Finneran’s conviction violated a core function of his position as a House member and/or Speaker because there is no evidence in the record of any code, rule or law applicable to Finneran’s public position that connects his conviction to his office. Accordingly, the Boards decision must be reversed.

The State Retirement Board has appealed the decision. Given the profile of the case and the malleable language of the statute, it is likely that higher courts will be keenly interested. For those interested in a broader explanation, please find the BMC decision below or feel free to send me an e-mail.

Read the decision here.

U.S. Department Of Labor About To Issue New Regulations Expanding Overtime Coverage To Over 5 Million Workers

Sometimes, I start thinking there isn’t much difference between Democrats and Republicans, since a lot of them remind me of the kids in high school who were running for student council president. But then, when I look at some federal regulations, I am reminded that who is in the White House can make a real difference for millions of people. The recent overtime rules issued by the U.S. Department of Labor show that there can be a clear difference between the political parties.

In the private sector, workers must be paid time and a half for all hours worked beyond 40 in a week. Passed in the 1930’s, this law was designed to encourage employers to hire more workers, since millions were thrown into unemployment by the Great Depression[1]. The statute exempted from the overtime laws “executive, administrative and professional” employees, but left government regulators to enact rules distinguishing employees exempt from overtime from non-exempt ones.

In 2004, the Bush Administration passed rules which “updated” these regulations in a way that left millions of workers without overtime protection. A salaried employee who spent 99% of her time performing manual labor could still be exempt from overtime as long as she made over $455/week. See In Re: Family Dollar FLSA Litigation.

Under the new regulations in the process of becoming law, not only does an “executive” really have to work as one, but s/he must make at least $50,440/year. Regardless of what title or job duties the employer gives the employee, unless s/he makes at least $50,440/year, s/he must receive overtime pay after working 40 hours in a week.

The new regulations, however, are not a panacea, since many companies have reacted by either reducing wages or reducing the hours of employees about to become eligible for overtime for the first time. Since virtually all of these employees are not covered by union contracts, they are powerless to do anything about it. Nevertheless, some formerly exempt employees will receive a raise, and, in some instances, more employees will be hired to fill in for the unlimited hours employers were formerly able to require of their supposed “managers” without any increased cost. As one economist said, “Trust me on this: you’d be very hard pressed to come up with [another] rule change or executive order to lift the pay of this many middle-wage workers.”

[1] In 1933, the U.S. unemployment rate was 25%.

The Best Labor Union Movies Of All Time

I’m a big fan of “Best of” lists, so it was only a matter of time until I compiled a list of the best movies related to unions and the workplace. I scoured the Internet for lists of films related to unions or workers and made sure to include my personal favorites. Here, in chronological order, are the results:

 How Green Was My Valley (US, 1941)

John Ford’s epic story of a family of Welsh coal miners (with Walter Pidgeon and Maureen O’Hara playing the parents) contains at its heart a debate about unionizing. While Ford keeps the focus on the family dynamics and the issue of worker safety, he weaves throughout the film the various pro- and anti-union arguments, leaving the final word for the local minister: “First, have your union. You need it. Alone you are weak. Together you are strong.”

Salt of the Earth (US, 1954)

Directed by Herbert Biberman, Salt of the Earth is famous in film history because nearly everyone involved in making the movie was blacklisted by Hollywood as part of the Red Scare of the 1950s, also known as the McCarthy Era for Wisconsin Senator Joseph McCarthy. The film tells the story of a 1951 strike in New Mexico against a zinc mining company. The story is unusual for the time in that most of the workers are Mexican immigrants; in addition, a major aspect of the story is the struggle between the male workers and their wives. The striking male workers want their wives to stay at home, cook and take care of the children. The women want to help the men win the strike. Guess who wins that argument? When the mine owner obtains an injunction against the striking workers, the women step up and maintain the picket lines.

On the Waterfront (US, 1954)

For many people of a certain age, Elia Kazan’s movie of conflict on the docks between a brutal union leader (Johnny Friendly, played by Lee J. Cobb) and a disillusioned dockworker (Marlon Brando) was their first introduction to the idea of a union and it was not a positive image. Kazan, who had just testified before the Un-American Activities Committee, where he named names of possible Communists, was clearly trying to make a point about the heroism of standing up for what you believe against overwhelming odds. But union workers know that the power of a Johnny Friendly pales in comparison to the power of the people that run the companies that ultimately pay the workers. Perhaps it would have helped to know that Johnny Friendly was based on an actual ILA leader who severely disciplined by the American Federation of Labor for his violent tactics.

The Pajama Game (US, 1957)

At first glance, The Pajama Game is just another Hollywood musical based, in this case, on the play of the same name and featuring the song “Steam Heat.” But upon closer examination, The Pajama Game turns out to be a story about a labor-management struggle. Doris Day plays the union steward in a pajama-making factory who has been pushing for a raise. John Raitt is a superintendent. These representatives of labor and management begin a love affair, but their work roles drive them apart, and after Day damages some machinery during a slowdown, Superintendent Raitt fires her. But then (through the magic of movies), Raitt discovers nefarious doings in management and manages to bring Doris back (to work and to him), get everyone the raise and they all live happily after. OK, it’s not Schindler’s List, but there is a message beneath the singing and dancing. Co-directed by George Abbott (also a co-writer) and Stanley Donen.

I’m All Right, Jack (UK, 1959)

John Boulting directed this satirical British film about the plot of a sinister company owner to drive the price of his product up by inciting the workers to strike, and then having the business transferred to a rival company, which he also secretly owns. The whole thing is played for broad laughs, most of them generated by Peter Sellers as the union boss with Bolshevik sympathies and a Hitler mustache. A cynical look at union leaders and management both, in the end it is clear who has the real power.

The Molly Maguires (US, 1970)

Martin Ritt directed this tale of coal miners in Northeastern Pennsylvania in the 1870s, which is based on a true story. The Molly Maguires, led by Jack Kehoe (Sean Connery), is a sort of proto-union that is at war with the mine owners in pursuit of better pay and working conditions. The differences between the Molly Maguires and a true union are significant: Connery’s group is a secret organization, and they are comfortable with using violence to achieve their ends. A Pinkerton Detective (Richard Harris) infiltrates the group and attempts to uncover its secrets, with tragic results. Ritt would revisit the union theme in 1979 with Norma Rae.

Harlan County, USA (US, 1976)

Director Barbara Kopple won an Oscar for Best Documentary for her on-the-spot reporting of a 1972 Kentucky miners’ strike in Harlan County, USA. Confrontations between striking workers and hired strikebreakers quickly became violent, and even Kopple and her cameraman were beaten. The film reminds audiences that, even in the 1970s, management tactics such as these were commonplace and the dream of a workplace where management and labor lived in perfect harmony was still far off.

F.I.S.T. (US, 1978) / Hoffa (US, 1992)

Hoffa is a well-made but ambivalent biopic of the Teamsters leader, with a pitch-perfect performance by Jack Nicholson, directed by co-star Danny DeVito. We get the good, the bad and the ugly of the controversial union leader, both his tireless dedication to the workers he represented as well as some of the poor choices he made while in power. Made 14 years earlier, F.I.S.T., directed by Norman Jewison and starring Sylvester Stallone, takes the basic outlines of Hoffa’s biography and fictionalizes them. The result is not great moviemaking and Stallone proves that he should keep to the boxing ring. Neither movie has an answer to the question, Where is Jimmy Hoffa’s body?

Blue Collar (US, 1978)

Paul Schrader, the man who wrote Taxi Driver, wrote and directed this crime drama, which places itself squarely in the “unions are corrupt” camp. Richard Pryor, Yaphet Kotto and Harvey Keitel are Detroit auto workers who are so angry at mistreatment by management and their union that they decide to rob the union. In the safe, they find evidence of corruption and links to organized crime. As in On the Waterfront, the theme is little guys vs. big organizations, but the assumption that all unions are corrupt was by that point a stereotype, not an accurate assessment based on the facts. At the same time, the movie fails to explore the vast power differential between the two purported “enemies” of the little guys – as always, management holds most of the cards.

Norma Rae (US, 1979)

If On the Waterfront established the prototype of unions for one generation, Norma Rae reversed the impression for the next. Directed by Martin Ritt and starring Oscar-winner Sally Field and Ron Liebman, the film focuses on a union organizing campaign in a southern textile mill. Along the way, we get a “two different worlds” love story between Field and Liebman, a look at family life and coping on the low wages of textile work, and a view of what working in a textile mill actually looks and sounds like. The movie ends optimistically, but in real life (as is often the case, especially in right to work states), the pro-union vote was only the beginning of the struggle.

Silkwood (US, 1983)

Mike Nichols directed Meryl Streep in this taut thriller about an employee of a plutonium company who stumbles on to some serious safety defects in the radioactive products. Streep plays a union steward at Kerr-McGee and it is clearly her association with the union that underlies much of her activity in the second half of the movie, although the script keeps union references to a minimum. The film is very effective at showing how union stewards communicate with other workers at work and at home. Ultimately, Silkwood decides to blow the whistle and give the information to a reporter, but is killed in a mysterious car accident on the way to the meeting. The movie suggests that the “accident” may have been murder, but the case has never been solved.

Matewan (US, 1987)

Chris Cooper, James Earl Jones and Mary McConnell star in this fictionalized recreation of a 1920 struggle between West Virginia coal miners trying to improve their lot by organizing a union and the owners (and their hired thugs) who want to continue to exploit. John Sayles, who wrote and directed Matewan, explores not just the willingness of the owners to use all means necessary to regain control, but also tensions between black and white workers, between men and women, and between the outsider (Cooper, playing a UMW organizer) and the natives. Somehow, Sayles completed the project, with its massive cast and spectacular battle scenes, for under $4 million.

Roger & Me (US, 1989)

Michael Moore, documentarian and propagandist, had his first hit with this wry tale of his attempts to meet with General Motors CEO Roger Smith (presumably to tell him off). Along the way, Moore guides us through a few decades of history (mostly accurately), focusing on the men and women employed by GM over the years, especially those in Moore’s hometown of Flint, Michigan. While Moore has his critics, and his throw-it-all-up-there-and-see-what-sticks approach can be annoying, his central point is sound: that the big companies who decide to lay off workers and close plants or move plants overseas are not controlled by the economy – they are the economy. The best evidence of this is the fact that no matter how badly the workers and former workers are doing (to the point of selling rabbits “for pets or meat”), people like Roger Smith do just fine.

Newsies! (US, 1992)

Another labor musical – this time from Disney. Based on the 1899 New York City newsboys strike, this dancing and singing extravaganza stars a young Christian Bale, with support from Bill Pullman, Ann-Margret and Robert Duvall. More than just Annie with newspapers, the film shows the desperate poverty that newsboys lived in, although it doesn’t explain how they can sing and dance so well on such a meagre diet.

Germinal (France, 1993)

Claude Berri directed this film version of the 19th Century novel by Émile Zola that relates French coal miners’ attempts to organize a union in the 1860s. Gerard Depardieu stars as the leader of a strike that begins well but collapses into a riot. Depardieu is blamed for the failure, leading his arch-enemy, an anarchist miner, to attempt to kill him in the mine. I won’t spoil the ending.

Office Space (US, 1999)

Mike Judge’s contemporary comedy doesn’t really have anything to do with unions, but it does say a lot about the absurdity of the modern workplace, particularly the business office setting. Though the concept and characters are better than the actual plot, there are enough knowing laughs (TPS reports, flair, etc.) to sustain the viewer though to the end. For some reason, Jennifer Anniston is in it. And would someone please give me back my stapler? You know the one, red, Trimline…

Bread and Roses (UK, 2000)

British filmmaker and chronicler of the working class Ken Loach went to California to tell the fictionalized story of two Central American immigrants who become involved in a janitors strike in Los Angeles. The film is based on SEIU’s April 1990 Justice for Janitors strike and also deals with issues of race, class and immigration. Adrian Brody plays a union lawyer.

Made in Dagenham (UK, 2010)

Underrated British actress Sally Hawkins turns in a subtle and convincing performance as a unionized sewing machinist, one of many women who sewed upholstery for cars at a Ford plant in England. Eventually, Hawkins and her union lead the women on a strike based on unequal pay between male and female workers. The movie is based on actual events in the Dagenham Ford plant in 1968. Nigel Cole directed. Co-stars include Bob Hoskins, Miranda Richardson and Rosamund Pike.