Your current television commercial, featuring a construction worker who falls and impales himself on a steel rod and then retreats to a nearby bar for a glass of hard lemonade, is really in very poor taste. Putting aside the inexplicable subject matter (why do you apparently think that “Mike’s makes you forget you’re bleeding to death” is an attractive marketing concept?), the commercial is a graphic affront to workers, business owners, and government agencies who devote their careers to occupational safety. More importantly, I’m sure the families of the approximately 700 victims who die in similar construction accidents each year (not to mention the more than 90,000 workers who suffer serious but non-lethal injuries due to falls) are much more deeply offended than we are by your choice of “humor."
Advertising Campaigns and Workplace Safety - There Is A Connection
And Jordan Barab of Confined Spaces has picked up on it in today's post, Nothing Funnier Than A Trench Collapse. An article on an advertising campaign for the new Charlotte Bobcats NBA franchise highlighting cardboard cut outs of visiting NBA stars meeting with disasters (which is now being reviewed "in light of recent events"), sparks memories of an earlier ad campaign for Mike's Hard Lemonade and an OSHA Director's letter. The whole letter is worth checking out, not only for the serious point, but for the touch of humor. Here's the money quote:
NLRB Fails Its Own "Smell Test"
Today's decision in Titanium Metals Corp. v. NLRB (D.C. Cir. 11/30/04) [pdf] is illustrative of a number of points that might be surprising for those who do not often deal with the world of unions and collective bargaining. In a time when individual rights are the dominant theme in employer/employee matters, the case is a forceful reminder that when a union represents the workers, it is the union's, not the individual employee's, interest which prevails.
Here, a worker was terminated following his publishing of his own newsletter (today, it no doubt would have been a blog) but also after allegations that he had committed a costly mistake and lied about it. In accordance with the collective bargaining agreement, a grievance was filed and resolved at the third stage by a letter of understanding between the union and the company:
Smallwood filed an unfair labor practice charge with the NLRB alleging that he had been terminated for engaging in protected concerted activity. The Board issued a complaint and the Administrative Law Judge found he had been terminated in violation of the NLRA. The ALJ also rejected the company's argument that the Board should defer to the settlement agreement between it and the union. Under existing Board precedent, such deferral is required when three conditions are met: (1) the grievance proceedings were fair and regular, (2) all parties agreed to be bound, and (3) the results of the settlement are not clearly repugnant to the purposes and policies of the NLRA. The ALJ refused to defer on the 3rd ground, that the settlement was clearly repugnant to the purposes and policies of the NLRA.
The Board, while affirming the ALJ's decision disavowed the finding that the settlement was repugnant to the Act. Instead the Board held that the proceedings were not fair and regular. It based the finding on two reasons: Smallwood never received a copy of the grievance settlement and the reasons for termination stated in the settlement differed from what the company told Smallwood.
In rejecting both reasons, and refusing to enforce the Board's order relative to Smallwood's termination, the Court starkly points out the role of the union vs. the individual employee in the grievance process. With respect to the failure to give Smallwood a copy of the grievance, the Court said:
Congratulations to George E. Yund, a fellow member of the Management & Employment Law Roundtable, who argued the case for Titanium.
Here, a worker was terminated following his publishing of his own newsletter (today, it no doubt would have been a blog) but also after allegations that he had committed a costly mistake and lied about it. In accordance with the collective bargaining agreement, a grievance was filed and resolved at the third stage by a letter of understanding between the union and the company:
Mr. Smallwood was not discharged for engaging in protected concerted activities under the NLRA. The Company recognizes the Union's rights to communicate with represented employees, to post notices and other related Union materials on plant bulletin boards as outlined in the collective bargaining agreement, and to engage in all other legally protected rights and activities, including, but not necessarily limited to, the NLRA ... The Company's reasons for discharging Mr. Smallwood included issues such as insubordination, inappropriate conduct toward the Company and supervisory employees, ongoing and costly workmanship related infractions, providing misleading and inaccurate information related to melting incident investigations, etc.Because of the settlement at the third stage, the grievance was not submitted to arbitration and Smallwood's termination stood.
Smallwood filed an unfair labor practice charge with the NLRB alleging that he had been terminated for engaging in protected concerted activity. The Board issued a complaint and the Administrative Law Judge found he had been terminated in violation of the NLRA. The ALJ also rejected the company's argument that the Board should defer to the settlement agreement between it and the union. Under existing Board precedent, such deferral is required when three conditions are met: (1) the grievance proceedings were fair and regular, (2) all parties agreed to be bound, and (3) the results of the settlement are not clearly repugnant to the purposes and policies of the NLRA. The ALJ refused to defer on the 3rd ground, that the settlement was clearly repugnant to the purposes and policies of the NLRA.
The Board, while affirming the ALJ's decision disavowed the finding that the settlement was repugnant to the Act. Instead the Board held that the proceedings were not fair and regular. It based the finding on two reasons: Smallwood never received a copy of the grievance settlement and the reasons for termination stated in the settlement differed from what the company told Smallwood.
In rejecting both reasons, and refusing to enforce the Board's order relative to Smallwood's termination, the Court starkly points out the role of the union vs. the individual employee in the grievance process. With respect to the failure to give Smallwood a copy of the grievance, the Court said:
This is perplexing, for, in the context of this case, this fact is utterly innocuous. Smallwood knew he had been terminated; he knew that the Union did not settle the grievance on terms that were favorable to him; and he knew that the Union did not appeal the case to arbitration. In other words, he was clearly on notice of the fact that TIMET and the Union had resolved his grievance without providing him any of the remedies he had requested. He was free to ask his Union agent about the terms upon which his grievance was settled, but he did not do this. And the Board does not suggest that the Union withheld any materials related to Smallwood's grievance to which he was entitled under the collective bargaining agreement.The argument that the reasons differed fared no better:
More importantly, it is legally irrelevant that Smallwood was not notified that the Union and TIMET had executed a Letter of Understanding with regard to his claims. Absent specified rights under a collective bargaining agreement, bargaining unit employees have no right to participate in contract grievance proceedings. ... Indeed, recognizing that a union is the collective bargaining agent of individual employees, the Board has made it clear that it will defer to grievance settlements even when a grievant objects to the settlement. ... The Board acknowledges that a union can settle an employee?s grievance over his objection, but argues that this case should be treated differently, because Smallwood was not informed of the precise terms of the settlement agreement between the Union and TIMET. ... This is a specious argument. Even if Smallwood had been notified of the precise details of the settlement, he could have done nothing to change it. The employer and union are the parties to the collective bargaining agreement and only they - not individual employees - determine how to interpret and enforce the agreement.
Assuming this is true, it does not support the Board?s conclusion that the settlement agreement was not fair and regular. The Union and TIMET were well within their rights to negotiate over Smallwood?s grievance under the contract grievance procedures and decide whether, and on what terms, Smallwood should be terminated.In stretching for something on which to defend the Board's decision, its lawyer offered that this was a case that "just didn't smell right." Unfortunately, when pressed to explain what smelled bad about the case, she could "identify nothing that provides a legal justification for the Board?s refusal to defer to the settlement agreement." Ultimately, it was clear, at least to the Court of Appeals, it was the Board's decision which failed the smell test.
Congratulations to George E. Yund, a fellow member of the Management & Employment Law Roundtable, who argued the case for Titanium.
Price of New York Street Food to Rise?
Perhaps, as Eliot Spitzer, the most famous state attorney general at least in recent memory, has broadened his sights from the board rooms of Wall Street, to the food vendors on New York streets. His most recent action -- a $450,000 overtime settlement under the New York wage and hour law on behalf of Central Park pretzel vendors. For a report with a British touch, check out the story by the London Times Wall Street correspondent. Could hot dogs be next?
6th Circuit Upholds "Contractual" Statute of Limitations of 6 Months
When I am scanning circuit court decisions for this blog, I don't generally read the unpublished decisions. However, the good folks at the Daily Labor Report do, and so a tip of the hat to them for their reference to Thurman v. DaimlerChrysler Inc. (6th Cir. 11/19/04) (unpublished)[pdf], where the Court dismissed the plaintiff's claims against the employer as untimely based on the following clause contained in the DaimlerChrysler employment application:
Another example of the importance of that sometimes overlooked and under appreciated piece of paper otherwise known as the employment application.
I agree that any claim or lawsuit relating to my service with Chrysler Corporation or any of its subsidiaries must be filed no more than six (6) months after the date of the employment action that is the subject of the claim or lawsuit. I waive any statute of limitations to the contrary.Relying on apparently well established Michigan law, the court rejected Thurman's argument that the agreement should not be enforced because it was a contract of adhesion and also found that even under the heightened scrutiny for waiver of a civil right, the application in this case passed muster. It also rejected an argument that the application was superseded by the collective bargaining agreement which covered Thurman after she was employed.
Another example of the importance of that sometimes overlooked and under appreciated piece of paper otherwise known as the employment application.
Bush Board Reverses Clinton Board, This Time on Joint Employer Units
One area where the substantive law can clearly change based on the winner of the presidential election is under the National Labor Relations Act. Not only can, but frequently does. The latest example is last week's decision in H.S. Care LLC (Case 29-RC 10101 11/19/04). In a 3 - 2 decision, the Board overruled its 2000 decision in M.B. Sturgis, 331 NLRB 1298 (2000). The Board succinctly summarizes what it did:
Although many would argue that such swings are unhealthy for labor relations because they create uncertainty, it is unlikely any political party that thinks, or even just hopes, it might soon have the power to change things in line with its way of thinking will be willing to agree to any sort of change. And of course to those who bemoan these recent changes, supporters of the decisions will point out in all three cases, the Board could accurately say it was returning to a prior position of the Board that had itself been reversed following a political change in power.
In Sturgis, the Board found that bargaining units that combine employees who are solely employed by a user employer and employees who are jointly employed by the user employer and a supplier employer are per-missible under the Act.There have been at least two other well publicized reversals in the year since Bush appointees were finally in the majority. One involves whether graduate assistants are employees covered by the NLRA and entitled to be represented by unions. See Labor board reverses on graduate assistants in the Villager. The other was to return to the rule that existed prior to the Clinton Board, that employees in a non-union environment are not entitled to representation in disciplinary meetings. See, NLRB Reverses Itself Again - Now Says That Weingarten Rights Are Not Available to Non-Union Employees .
For the reasons discussed below, we hold, contrary to the Board’s decision in Sturgis, that such units constitute multiemployer units, which, in accordance with the stat-ute, may be appropriate only with the consent of the par-ties. Therefore, we overrule the Board’s decision in Sturgis and return to the Board’s longstanding prior precedent.
Although many would argue that such swings are unhealthy for labor relations because they create uncertainty, it is unlikely any political party that thinks, or even just hopes, it might soon have the power to change things in line with its way of thinking will be willing to agree to any sort of change. And of course to those who bemoan these recent changes, supporters of the decisions will point out in all three cases, the Board could accurately say it was returning to a prior position of the Board that had itself been reversed following a political change in power.
Who's Packing in the Car?
May become a relevant question for employers in Oklahoma depending on a challenge to HB 2212, enacted last session by the Oklahoma legislature and supposed to become effective on November 1, 2004. The statute added the following provision to Oklahoma's concealed gun law:
Whirlpool initiated the litigation, but other major Oklahoma employers such as Williams Co. and Phillips 66 have now joined according to this AP story in the Bartletsville Examiner.
Although as a loyal Texas Longhorn who hates to given any cover for Sooners of almost any variety, this legislation did not just arise out of thin air. Instead as discussed in a Wall Street Journal article it came after 12 Weyerhauser employees were terminated following a 'raid' by the company a little over a year ago.
One blogger, Joe Kelley, who sees some the competing issues, offers his own temporary solution:
No person, property owner, tenant, employer, or business entity shall be permitted to establish any policy or rule that has the effect of prohibiting any person, except a convicted felon, from transporting and storing firearms in a locked vehicle on any property set aside for any vehicle.Employers with policies prohibiting possession of guns on their premises have sued in federal court and the enforcement of the act has been temporarily restrained by U.S. District Judge Sven Erik Holmes, the Chief Judge of the Northern District of Oklahoma in Tulsa.
Whirlpool initiated the litigation, but other major Oklahoma employers such as Williams Co. and Phillips 66 have now joined according to this AP story in the Bartletsville Examiner.
Although as a loyal Texas Longhorn who hates to given any cover for Sooners of almost any variety, this legislation did not just arise out of thin air. Instead as discussed in a Wall Street Journal article it came after 12 Weyerhauser employees were terminated following a 'raid' by the company a little over a year ago.
One blogger, Joe Kelley, who sees some the competing issues, offers his own temporary solution:
I’m a firm believer in the individual right to bear arms. I’m also a firm believer in the employers rights to set policy as it pertains to their employees. While I support their right to do so, I believe that Whirlpool is setting a ridiculous policy against guns in locked cars. Anyone intent on killing fellow employees will certainly not care about breaking insignificant company gun policy. A “No Guns” sign will not deter someone intent on murder.The only real short term solution to this problem is for gun-toting Whirlpool employees to park off-site and walk a little further to work.It will be interesting to see how this "red state" resolves this issue.
Good Business by Mihaly Csikszentmihalyi
In between scientific testing of the various qualities of margarita to be found at drinking and dining establishments in the lovely colonial city of Morelia and making an absolutely breathtaking trip to see the Monarchs gathered in their winter home, I managed to do some reading. One book was yet another "flow" book by psychologist Mihaly Csikszentmihalyi.
This differs however in that it is less about flow and more philosophical in nature. Basically Csikszentmihalyi argues that businesses (and more importantly their leaders) now have an obligation to do more than deliver a great bottom line. That they are now responsible for creating an environment where each employee can grow, thereby increasing the overall 'good' in society. A thoughtful topic and some very interesting ideas, but I would think quite likely to meet with skepticism in the very places he seeks to change. It is not a long book, and just as an introduction to his ideas on the "flow state" it is a good read and recommended.
If you want to check out how some other people viewed it here are some reviews: Kathleen Caldwell in Hope Magazine; The Corporate Asylum, Satire and Commentary for Discerning Employees; Cathy Alper at 800-CEO-READ Blog; Bruce Rosenstein in USA Today, who also provides a great function by providing a phonetic pronunciation of the author, Csikszentmihalyi (pronounced chick-sent-me-high); and of course the Amazon commentary.
This differs however in that it is less about flow and more philosophical in nature. Basically Csikszentmihalyi argues that businesses (and more importantly their leaders) now have an obligation to do more than deliver a great bottom line. That they are now responsible for creating an environment where each employee can grow, thereby increasing the overall 'good' in society. A thoughtful topic and some very interesting ideas, but I would think quite likely to meet with skepticism in the very places he seeks to change. It is not a long book, and just as an introduction to his ideas on the "flow state" it is a good read and recommended.
If you want to check out how some other people viewed it here are some reviews: Kathleen Caldwell in Hope Magazine; The Corporate Asylum, Satire and Commentary for Discerning Employees; Cathy Alper at 800-CEO-READ Blog; Bruce Rosenstein in USA Today, who also provides a great function by providing a phonetic pronunciation of the author, Csikszentmihalyi (pronounced chick-sent-me-high); and of course the Amazon commentary.
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