Year-end gifts provide surprises for contractors, clients

By G. Phillip Shuler

Four recent decisions of the courts and the National Labor Relations Board bestow a surprise mixed bag of tricks for Louisiana contractors and their clients. These cases demonstrate the vulnerability of unsuspecting employers to attacks from unpredictable sources.

Employee complaints to their employer's customers are protected activity. Most employers would think that they have the right to expect their employees to keep their complaints with their employer internal and certainly not involve their employer's customers in their internal disputes. Apparently, that is not necessarily the case. In Bowling Transp. Inc. v. NLRB (6th Cir. No. 01-2586/2588, December 8, 2003), the court found that a transportation services company violated the National Labor Relations Act (NLRA) by firing two nonunion workers who complained about the company's policies to one of its customers.

The two Bowling employees complained to Bowling customer A.K. Steel Company that they were not receiving promised bonuses from Bowling. Thereafter, A.K. Steel insisted that the two workers be kept off of its premises and, since Bowling had no other customers, it terminated both of them. A third Bowling employee complained to Bowling's president about work rules and was immediately suspended, accused of attempting to unionize, and then fired for failing to follow instructions and for having priorities "inconsistent with company policy."

In an effort to improve jobsite safety, A.K. Steel offered contractors a $1 bonus for each injury-free hour worked by each contractor employee and strongly urged contractors to pass the bonus through to their employees. Bowling passed through 50 cents on the dollar but pooled the difference for a Christmas party and to defray the cost of safety gear.

Displeased with this policy, the two employees "raised some hell" with an A.K. Steel manager who told them it was not his concern. The A.K. Steel manager then contacted Bowling and instructed Bowling to remove the two employees from his premises and threatened to terminate Bowling's contract if the two returned.

Bowling accused the two employees of trying to unionize and ten days later terminated them.

Bowling contended on appeal that A.K. Steel was an indispensable party and that reinstatement of the workers was outside of the NLRB's authority since it was A.K. Steel that banished the two workers with the threat to terminate Bowling's contract. The Appeals Court rejected Bowling's arguments, finding that A.K. Steel was not an indispensable party since it would not be harmed by enforcement of the order and no party would be subject to inconsistent obligations.

Moreover, A.K. Steel's ban of the two workers could not be deemed an independent basis for their termination since it resulted from their protected activity of complaining about the bonuses. The Appeals Court found that Bowling had an obligation to stand up to A.K. Steel and reasoned that if, instead, A.K. Steel had banished the two workers because they were African-American or women it would hardly be an appropriate defense for Bowling to claim it was A.K. Steel who directed them to get rid of them.

Bowling did not appeal the third employee's reinstatement.

General contractor does not control access to jobsite. Wolgast Corp. is a general contractor who was engaged to build an addition to a movie complex. Wolgast contracts with both union and nonunion subcontractors. Wolgast subcontracted acoustical installation at the movie complex to Acoustical Arts Inc., a union contractor.

Acoustical's collective bargaining agreement with the Carpenter's Union provided that Carpenter's business representatives shall have access to the jobsite to interview the employer, stewards, or employees at work but provided they would not hinder the progress of the work.

A business representative and organizer of the Carpenter's Union visited the jobsite along with a business representative from the Lather's Union who also represented Acoustical employees, to check on a new employee. The superintendent for Wolgast ordered them off of the premises.

The new employee had already left the jobsite by the time the union representatives had arrived.

The union representatives returned to the jobsite the next day to check on scaffolding safety and to sign up an employee. The Wolgast superintendent profanely and physically requested that the representatives leave the jobsite.

The court held that Wolgast violated the National Labor Relations Act's (NLRA) restriction that makes it an unfair labor practice for an employer to "interfere with, restrain or coerce employees in the exercise of their rights" to form, join or assist labor organizations.

The court rejected Wolgast's reliance on its property rights to defeat the Union's claim. The court concluded that the accommodation between employee rights and the employer's property rights "must be obtained with as little destruction of the one as is consistent with the maintenance of the other."

The court distinguished situations where non-employee organizers who seek access to a jobsite for organizing from situations such as presented in Wolgast where non-employee union representatives seek access to a jobsite pursuant to a collective bargaining agreement to service their members and the contract.

In the former situation, non-employee organizers may be excluded if 1) reasonable effort by the union through other available channels of communication will enable it to reach the employees with its message; and 2) the employer's notice or order does not discriminate against the union.

However, in the latter case, the employee's rights to negotiate and benefit from a collective bargaining agreement which allows access to the union trumps the employer's property rights because Wolgast, by voluntarily engaging a union contractor, has "invited" the union on the premises.

The court concluded that such an accommodation did not bind Wolgast to a contract to which it is not a party but merely accommodated Wolgast's property interests with employee's rights. (Wolgast v. NLRB, No. 01-1904 and 01-2056; 6th Cir. Sept. 16, 2003).

Who is the employer? The Fifth Circuit has concluded that employees of a maintenance contractor working in a petrochemical plant are not also employees of the plant owner (MacLachlan v. ExxonMobil Corp., No. 02-31240, 5th Cir., Nov. 20, 2003). This case is the second recent decision raising this issue and rejecting the employees claims. See Ricky Landry, et al v. Georgia Pacific Corporation, No. 97-1164, M.D. La., Feb. 4, 2003.

In each case the employees had worked in the plant for many years under the supervision of the plant owner's supervisors and sought to be included under the owner's benefit plans. This issue is an offshoot of litigation involving Microsoft Corp. and is likely to continue to be raised in the future.

The Fifth Circuit in the ExxonMobil case emphasized and relied upon the contractual language in the contracts between the maintenance contractor and ExxonMobil as well as the language of the particular benefit plans.

Employee on a special mission. A Louisiana electrician who was injured driving home from a safety meeting held after his regular workday at his employer's home office was covered by workers' compensation (McLin v. Industrial Specialty Contractors Inc., 851 So.2d 1135 (Sup. Ct. La. 2003).

The court recognized the general rule that employees traveling to and from work are not considered in the scope of employment but concluded that McLin met the "special mission" exception to the general rule having attended an employer mandated meeting which gave him coverage portal to portal.

Editor's Note: G. Phillip Shuler is a partner in the New Orleans office of Chaffe, McCall, Phillips, Toler & Sarpy.