Sometimes it pays to Fight “City Hall” - Employer Successfully Challenges OSHA Citation Arising from a Workplace Fatality

November 2015

Employers are becoming more and more aware of just how aggressive federal agencies have become in recent years with their enforcement efforts as well as their interpretation of the laws and regulations they enforce. Most of the time this does not bode well for employers.  However, in one recent case an employer challenged an OSHA citation in which the Secretary of Labor assessed a very large penalty of $490,000.00 as a result of a single workplace accident. The citation claimed that an incident where a large piece of metal broke off and was ejected from a lathe, killing its operator, violated an OSHA barrier guard safety regulation.  The employer appealed OSHA’s sizable fine and prevailed in court.

The Eighth Circuit Court of Appeals agreed with the employer that while serious, this unfortunate accident was the result of the catastrophic failure of the lathe, not a safety regulation violation.  In other words the court found that, even though an employee was killed, the employer was not at fault. The pertinent part of the OSHA regulation relied on for the citation expressly referred to the type of hazards related to the routine operation of machinery, such as flying chips and sparks. The court determined that it was quite a stretch for the Secretary of Labor to apply such a limited regulation to an event that was anything but routine.    

Generally courts will defer to an agencies’ interpretations of its own regulations.  However, in this case neither the language of the regulation nor the agency’s prior interpretation of the regulation would put the company on notice that it needed to install a safety guard specifically to protect against this type of catastrophe.  Unfortunately, many employers lack the resources to challenge a federal agency in court when it has misapplied its own regulations to come down hard on the company.  Yet where the stakes are worth the battle, as they were in this particular case, it can pay to take them on.

Questions? Contact our Minneapolis attorneys at (952) 746-1700 or email Chrissy Beggan at chbeggan@wesselssherman.com.

Union Organizing

By Richard H. Wessels
Firm Founder

Concerned about ambush elections (they're here) and the uptick in union organizing? Wessels Sherman can make you as bullet-proof as possible. A simple three step approach will work:

1. Someone in your organization understands and is responsible for Wessels Sherman's ABC's of Staying Union Free;
2. Your front-line supervisors are trained on the issue of union organizing, and they are not afraid of it;
3. You have a simple one-page union-free action plan. 

Call me here at our St. Charles office at (630) 377-1554 if you would like to talk about this or send me an email at riwessels@wesselssherman.com.

Al Piemonte Chevy Strike – 6th Longest On-going Strike in America

October 2015
By Richard H. Wessels, Esq.

The Al Piemonte Chevrolet dealership in East Dundee is now on the list of longest on-going strikes in America. The strike is America’s 6th longest. The Mechanics Local 701 strike has now been going on for about 15 months. It is a first contract situation. The scenario is pretty typical.

In late March of 2014, Automobile Mechanics Local 701 petitioned for an election to try to represent the Al Piemonte mechanics. There were nine auto mechanics in the unit. In May of 2014, a majority of the men voted for the union. The negotiations lasted only a few months. Local 701 called a strike on July 9, 2014.

Over Labor Day weekend 2014, after the strike had gone on then for about nine weeks, Local 701 put together a Labor Day rally with other unions to try to pep up the mechanics. There is a lengthy YouTube video of this which you can see on the internet. There is an interview with a couple of mechanics who you can clearly see are starting to get a bit tired of nine weeks of striking. If only they knew one year later they would still be walking the picket line!

The strike went on and on and on. Finally, at the end of January, 2015, the union made what is known as an unconditional offer to return to work. This means that the union is giving up. The men wanted to return to work at their old terms and conditions. But the dealership said it was too late. The men had already been permanently replaced.
NLRB litigation followed and is on-going. The issue, of course, is whether or not this is technically an unfair labor practice strike. And, if it is, the strikers would have a right to displace those mechanics who were hired to replace them. In any event, as of today, the strike is continuing and is going into its 16th month.

As a practical note for those interested in countering union organizing campaigns, the potential for strikes is a powerful argument for employers to persuade voters to vote no. Most studies have shown that the two most powerful arguments used by employers in organizing campaigns are the obligation to pay union dues and the potential for strikes. You might want to check out a video that we took of the Al Piemonte strike. We used it in a recent successful counter-organizing campaign in metro Chicago. It is certainly not professionally done and the audio is hard to hear, but you might want to take a look at it nonetheless. It’s only a couple of minutes long. Contact us if you would like to view the video.

Questions/Comments? Contact Dick Wessels at the St. Charles office of Wessels Sherman at riwessels@wesselssherman.com or (630) 377-1554

Illinois Equal Pay Act Expanded to Cover ALL Employers!

October 2015
By Anthony J. Caruso, Jr., Esq.

Unfortunately for employers in Illinois, the Illinois Equal Pay Act has sharper teeth!

On August 20, 2015, Illinois Governor Bruce Rauner signed an amendment to the Illinois Equal Pay Act expanding coverage to all employers, instead of employers with four or more employees.

In addition, the revised Illinois Equal Pay Act increases the maximum civil penalties for Illinois employers as shown below:

	Less than Four Employees	Four or More Employees
First Violation	Not to exceed $500	Not to exceed $2,500
Second Violation	Not to exceed $2,500	Not to exceed $3,000
Third or subsequent violation	Not to exceed $5,000	Not to exceed $5,000

The above changes in Illinois law will become effective on January 1, 2016.

Questions? Contact Attorney Anthony J. Caruso Jr. of Wessels Sherman's St. Charles office at (630) 377-1554 or via e-mail ancaruso@wesselssherman.com.