Today’s Labor Updates:
Labor board upholds Sherwin lockout
Requiem for the annual employee performance review
Senator Sanders (I/D-VT) Re-Introduces Employee Free Choice Act
Caterpillar Must Let Union Investigator Into Site of Death
Labor board upholds Sherwin lockout
By Chris Ramirez of the Caller Times
Posted: October 5, 2015 4:52 p.m.
Sherwin Alumina acted lawfully when it locked out hundreds of unionized employees nearly a year ago, the National Labor Relations Board ruled.
In a letter, dated Oct. 2, Richard F. Griffin Jr., a general counsel for the agency, wrote Sherwin did not violate the National Labor Relations Act by locking out bargaining unit employees.
Griffin also found Sherwin has bargained in good faith and that at no time were the parties at a bargaining impasse.
The United Steelworkers Local 235A, the union representing 450 Sherwin employees who have been locked out of their job since Oct. 10, said its bargaining committee continues to meet regularly with Sherwin officials in hopes of reaching an agreement.
Bargaining teams have been meeting in Pittsburgh the last week trying to mete out a deal. The meetings so far have touched on a number of unresolved issues. Both sides remain at odds over health care benefits for both active and retired members, and safety issues.
The plant, located on State Highway 361, is where employees extract aluminum oxide, called alumina, from bauxite ore. Alumina’s uses include airplanes, beer cans, fire-retardant carpet, seat cushions, toothpaste, deodorant, antacid and artificial marble.
The labor contract that covered roughly 450 of the plant’s 600 employees expired in September 2014. Plant employees and their union rejected the company’s final contract offer Oct. 10.
Replacement workers reported to the plant the next day and have been employed there ever since.
The plant’s 150 salaried engineers, managers and operations and administration personnel are not covered under the contract.
Requiem for the annual employee performance review
Fisher & Phillips LLP Michael V. Abcarian
USA October 1 2015
During a recent reality television segment, a well-known NFL quarterback accompanied an equally well-known outdoor survivalist on a wilderness trek during which the quarterback dispatched a 6-foot alligator. After vanquishing the gator, the quarterback hauled it over his shoulders and headed to the campfire to roast his prize. The obviously expired gator’s tail was seen to intermittently flick on its own—its central nervous system randomly signaling tail muscles to twitch though no longer with a reasoned purpose.
So what does this have to do with annual employee performance reviews? Perhaps more than you think. Like the purposeless flicks of the dead gator’s tail, performance reviews are becoming an anachronism in the American workplace with little real purpose or positive effect. Your review process might already be dead and you don’t even realize it, which could result in more harm than good. Let’s examine this traditional employment practice a little closer to understand whether there is an issue that warrants wholesale reconsideration.
The Review Process Might Result In Unhealthy Competition
Let’s face it: in many organizations, reviews are not unlike the scoring table at a competitive athletic event. In all but a few instances, how well (or not) an employee “scores” is usually followed by a carrot or a stick – maybe an immediate pay increase or promotion, or perhaps a performance improvement plan.
Because you have only so many dollars to spend on pay increases, and only so many positions into which employees can be promoted, employees often perceive the performance evaluation as a competitive process. There can only be so many winners receiving prizes on the medal platform.
Viewed in this light, performance reviews may produce significant employee anxiety and frustration, rather than motivation to be the best contributor to team success. And this is true for high performers as well. No matter where the individual bar is set, the system builds in the notion that you should do more and do it better. It focuses more on shortcomings than successes.
Moreover, in every workplace, there are inevitably workers who are perceived by peers as adept at “gaming the system.” Perhaps they are better at appealing to the subjective preferences and hard-wired biases of those who perform the evaluations. Similarly, some workers may be perceived as “favorites” of supervisors who are subjectively “rewarded” by high marks on their reviews, while others are not.
For employees who perceive the review process as a subjective, biased, or otherwise flawed process, evaluations become a significant de-motivator and workplace distraction.
Performance Reviews Are Backward-Looking
Because most employee performance evaluations are used in conjunction with the process of compensation adjustment, they’re not designed to incentivize future performance. They look backward instead of forward, frequently perpetuating stereotypes or entrenched perceptions that are not focused on current performance and accomplishments.
If an employee receives a poor review and no pay increase, is he or she likely to be fired-up about working harder in the upcoming year? And if, over time, an evaluator has pegged an employee as adequate for basic pay increases—but not bonuses for exemplary performance—is the same likely to be true?
Cookie-Cutter Reviews Are Bad For Business
Over time, the “halo effect” can easily dictate the results of the process. High performers consistently see most of the boxes on their evaluation forms checked as “above expectations” or “outstanding,” and for those generally perceived as lesser performers, the norm becomes check marks in boxes for “meeting standards” or even “unsatisfactory.”
To test the validity of these notions, you should review the evaluations given by individual supervisors to particular employees over multiple years. When the “halo effect” is ingrained, the evaluations tend to read like cookie-cutter versions that differ little, one year from another. While this does not prove the evaluations are inaccurate or undeserved, we also know employee performance is not static from year to year. Job performance usually varies—even for elite performers.
Where, however, inertia rules the performance evaluation process, all you really learn is who is generally liked or not so well liked by managers. And because the review process is usually time-consuming, managers who must evaluate many employees are motivated to “automate” the process in order to save time.
How might they do that? By perpetuating prior evaluations without critically revisiting each performance metric with a fresh and unbiased eye about what the employee did within the current review period.
Is This Really A Big Deal?
An increasing number of employers are rethinking why there is need to numerically rank employees each year, and are increasingly concluding that the time-consuming, traditional review process may no longer be a relevant investment of time and resources. Indeed, one recent research study found that 6% of Fortune 500 companies have already discarded the standard review process. This includes industry leaders like Microsoft, Adobe, Gap and Medtronic.
Not surprisingly, this research also found that about three-quarters of managers who perform reviews not only find them unreasonably time-consuming, but also believe the resulting numeric rankings do not convey an accurate picture about employee contributions to organizational success.
And in another recent study that included human resource managers and CEOs as nearly a third of those surveyed, a whopping 98% said that annual performance reviews were simply unnecessary. Is this a sign of the times? Not surprisingly, many employees believe that evaluation processes are incurably subjective, materially biased, and sometimes outright disenfranchising.
A Better Method For Performance Reviews
Critics of traditional annual employee evaluation systems believe there are better ways to gauge job knowledge, measure the quality and contribution of worker performance, and incentivize positive workplace behavior. A building block for transformation away from the traditional review model involves more frequent interaction between managers and employees, where assessments about the quality of an employee’s work are based on a series of evaluation events that occur as job-related circumstances unfold.
For example, at the conclusion of a meeting that addresses strategy for a problematic project pinch-point, a manager and employee might discuss what progress was made, what remains for immediate action, and what might be handled differently in follow-up activity to promote ultimate success in resolving the issue.
This kind of interaction could also be scheduled to take place on a quarterly basis, each month, or even weekly. And the meetings don’t have to be formal in nature; they could simply be check-in conversations, or even coffee-break chats.
Benefits Of More Timely “Reviews”
There is an obvious benefit to evaluating employee work performance close in time to when the work was actually performed by the employee. It will often yield more insight about actual strengths and weaknesses than trying to reconstruct those events months later for generic description in a lengthy evaluation document.
This is especially true since much of the critical detail and context of a situation may be difficult to reproduce later in time, or may even have been forgotten when the annual review process takes place. And there is no doubt that employees prefer multiple, recurring, performance-related discussions and feedback from their managers as opposed to year-end pronouncements.
Think of it this way: if given the choice of having your grade for a year-long educational course determined by a single, end-of-term test, or an averaging of scores from multiple and shorter exams conducted throughout a school term, it’s probably safe to assume that most of us would favor the multi-test option. And it’s probably equally safe to assume that the combined result of multiple tests conducted over time more realistically conveys how much a student learned about a subject when compared with a single test administered months after learning the material.
But in the context of evaluating work performance, the traditional model presumes that the first option—the singular year-end test—is not only sufficient, but perhaps the best method of measuring job accomplishment. Many are not only questioning the validity of this model, but have discarded it in favor of more responsive and accurate evaluation goals and measurement tools.
Where Do We Go From Here?
With the landscape of employment rights in a state of unprecedented flux with the recent barrage of new interpretations of law and enforcement initiatives by agencies like the National Labor Relations Board, the U.S. Department of Labor, and the Equal Employment Opportunity Commission, now is the time for a fresh and thoughtful look at better understanding and measuring how your employees contribute to the success of your organization.
Clearly, there is no one-size-fits-all method for measuring the quality of work performance, while at the same time incentivizing the myriad of positive workplace behaviors that contribute to an organization’s success. But like many employer policies and practices, if the explanation for why you do things the way you do is that “this is how we’ve always done it,” there is little doubt your organization could benefit from the investment of more thought about your goals.
If, while reading this article, you have come to ask whether your organization’s employee performance review program is not unlike the wagging tail of the deceased gator—aimlessly flicking back and forth without reason or purpose—now may be the time for breathing life into your review process. Taking a new and innovative approach that better measures how your employees contribute to the success of your organization may be just what the doctor ordered.
Senator Sanders (I/D-VT) Re-Introduces Employee Free Choice Act
By Seth Borden on October 8, 2015
At a press conference on the afternoon of Tuesday, October 6, 2015, Democratic presidential candidate Senator Bernie Sanders of Vermont announced that he and Rep. Mark Pocan (D-WI) would introduce the “Workplace Democracy Act” (S. 2142, H.R. 3690). This bill would amend the National Labor Relations Act to facilitate union organizing by requiring certification based on “card check” — the presentation of publicly collected employee signatures. The bill would also eliminate freedom of contract by requiring that the terms of a first labor contract be settled by an interest arbitrator after 120 days of negotiations between management and a union.
If this sounds familiar, it is because these provisions were repeatedly introduced and defeated in the legislative battles over the Employee Free Choice Act (EFCA) during the Bush presidency and President Barack Obama’s first term. In fact, as one can easily compare, the text of Senator Sanders’ bill reflects the first two of EFCA’s three provisions verbatim.
The third section of EFCA would have increased the use of mandatory injunctions and financial penalties in unfair labor practice proceedings. Earlier last month, Senator Patty Murray (D-WA) and Representative Bobby Scott (D-WA) introduced the “WAGE Act” (S. 2042) which would increase NLRA penalties against employers far beyond that even contemplated by EFCA. We noted at that time that the WAGE Act’s bargaining order remedy appeared to be a back-door approach to card-check. It seems now that legislative allies of organized labor are reviving the front-door approach as well.
Compare also, the change in the tone and content of the chief sponsor’s rationale. Back in 2007, EFCA sponsor Rep. George Miller (D-CA), a devoted proponent of union organizing, still attempted to frame the issue as one of “fairness” and “opportunity”:
One way to help the middle class is to provide them with a fair opportunity to organize and join unions, so they can have a say in what goes on in the workplace. … The Employee Free Choice Act would add some fairness to the system.
Senator Sanders’ introductory language is far more honest regarding intent. He concluded his remarks on Tuesday:
If we are serious about reducing income and wealth inequality and rebuilding the middle class, we have got to substantially increase the number of union jobs in this country.
The Senator’s introduction of this bill, amid his campaign for the Democratic party nomination for the presidency, will be seen by many as an effort to bolster his strong standing with organized labor and to compete further with opponent Hillary Clinton for additional union endorsements. The furthest EFCA ever advanced was in 2007, when it passed a Democrat-controlled House of Representatives but was filibustered in a Senate with a simple majority of Democrats. Late Republican — and soon thereafter Democrat — Senator Arlen Specter of Pennsylvania doomed the bill when he opposed cloture in a widely reviewed floor statement. The bill is not likely to get much further than it did then, considering the current Republican majorities in the House and Senate. It may also be noteworthy that Democrat support for the bill lags far behind its previous incarnations as Senator Sanders’ bill has only ten co-sponsors, as opposed to the 40-46 co-sponsors of the 2007 and 2009 bills.
For the many reasons outlined in our 2009 white paper on the bill, the Employee Free Choice Act was bad policy. It remains so, today — even under this new name. Still, prudent employers should follow closely the competing legislative proposals aimed at overhauling the National Labor Relations Act.
October 5, 2015
Caterpillar Must Let Union Investigator Into Site of Death
From Daily Labor Report
By Laura D. Francis
Oct. 2 — Caterpillar Inc. must allow a United Steelworkers investigator into a Wisconsin facility to examine the site of a fatal workplace accident, the U.S. Court of Appeals for the Seventh Circuit held Oct. 2, affirming a National Labor Relations Board order (Caterpillar Inc. v. NLRB, 7th Cir., No. 14-3528, 10/2/15).
The union’s right to represent its employees vastly outweighs Caterpillar’s interest in protecting its property rights, the appeals court said. Caterpillar’s attorney acknowledged that allowing the investigator to conduct an on-site investigation would cause “no actual harm” to the company, the court said, whereas the investigator could uncover the yet-unknown cause of the accident, leading to changes that would reduce the chances of a future accident.
“We can’t exclude the possibility that the company’s unexplained, unjustified refusal of access to [USW investigator Sharon] Thompson was intended not only to prevent the union from investigating safety issues and perhaps discovering negligence by Caterpillar but also to demonstrate to its employees that the union can do nothing to enhance their safety,” Judge Richard A. Posner wrote for the court. “The union’s duty to attend to the safety of the employees whom it represents entitles it to insist on performing its own investigation of safety issues, rather than relying entirely on data given it by the company.”
Judge David F. Hamilton joined the majority opinion.
Third Judge Rejects Muscle Flexing as Union Right
Judge Daniel A. Manion wrote an opinion concurring in the judgment. He agreed that the board properly balanced the rights of the company and the union. But he disagreed with the majority’s assertion that Caterpillar didn’t retain property rights merely because allowing a union investigator into its facility wouldn’t do any harm.
Manion also argued that a union’s right to responsible representation doesn’t necessitate access to the employer’s property if its needs can be met through other means.
“It is the union’s need for access, rooted in the employees’ right to responsible representation, that weighs heavier on the scale than Caterpillar’s property rights,” Manion wrote. “Whatever benefit the union derives from demonstrating to its members that it is not impotent is not weighed in the balance.”
“The right to responsible representation does not include the right to flex union muscle,” he said.
Union Investigator Barred From On-Site Investigation
The case arose following a fatal accident at Caterpillar’s weld shop in a South Milwaukee, Wis., factory. A union-represented worker was crushed to death by a 36-ton “crawler”—similar to the tracks of a bulldozer or tank—and the company notified the local police and the Labor Department’s Occupational Safety and Health Administration.
Union officials visited the scene, but they weren’t safety specialists, so the union asked Thompson, an experienced health and safety specialist at USW’s headquarters, to investigate. Caterpillar denied Thompson access to the site, although she was permitted to view videos of a reenactment of the accident.
Finding the videos an inadequate substitute for an on-site investigation, the USW went to the NLRB. The board found for the union and ordered that the investigator be permitted access to the accident site (Caterpillar Inc., 361 N.L.R.B. No. 77, 10/30/14; 211 DLR A-1, 10/31/14).
On appeal, Posner noted that the cause of the accident, which occurred in 2011, has never been determined. That means Caterpillar hasn’t taken any “serious, reliable measures to avoid a recurrence,” nor can it until the cause is discovered, “something the company appears to have no interest in,” he said.
Even if the cause can’t be determined at this point, Posner said, the case wouldn’t be moot because “rescinding the Board’s order would allow the company to continue to deny the union access to future accident sites. The company’s choice to clean up such sites quickly cannot be allowed to defeat judicial review.”
Reenactment Videos Insufficient
The court said the “superficially strongest plank in the company’s argument” is the two reenactment videos it allowed Thompson to view in lieu of an on-site investigation. “But one has only to view the videos, as we have done, to realize the shallowness of the argument.”
The videos lack any text or voices and have no sound except for “unexplained background noise,” the court said. They are also brief and “two-dimensional,” showing, from a single angle, a crawler hanging from a chain and being lowered to the floor or raised from it, the court said.
“Given the absence of text and sound it is impossible to understand what, relative to the accident, the videos demonstrate,” Posner wrote.
“Since it is apparent that the materials shown Thompson were not an adequate substitute for an on-site investigation, and it is admitted that the investigation would have imposed trivial costs on the company unless the investigation revealed safety problems that were expensive to fix, the challenge to the Board’s order has no merit,” Posner said. “We therefore enforce the order and deny the company’s petition for review.”
Winston & Strawn LLP represented Caterpillar. NLRB attorneys represented the board.
To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bna.com
To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com