Personal Care Assistants: The Next Employees to Unionize?
Karen G. Schanfield, December 2012
A team of Fredrikson & Byron lawyers also practice “traditional labor law,” involving the relationship between employers, unions, and employees. We help employers with all aspects of labor/management relations, including defending against union organization campaigns, negotiating and administering collective bargaining agreements, and responding to pickets and boycotts. When labor problems boil over into litigation, we can help pursue or defend against unfair labor practice charges, lawsuits, and grievance arbitrations.
We practice traditional labor law, involving the relationship between employers, unions, and employees.”
We provide the following labor management services to employers:
Represent employers in union organizing campaigns:
- Coordinate strategies to avoid and/or win elections conducted by the National Labor Relations Board.
- Represent employers in legal proceedings involving NLRB elections, such as disputes as to the unit description, eligibility of voters, and objections to the conduct of the election.
- Advise employers on union avoidance issues.
Represent employers in unfair labor practice charges:
- Advise employers on strategies involved in responding to and contesting unfair labor practices (ULP);
- Participate in and represent employers during ULP investigations;
- Defend employers in ULP hearings and subsequent appeals to the appropriate Circuit Court of Appeals and possible appeals before the U.S. Supreme Court.
Represent employers in collective bargaining negotiations:
- Formulate strategies for initial and/or renewal negotiations;
- Draft and revise provisions for collective bargaining agreements;
- Act as spokesperson at the bargaining table;
- Assist employers in interpreting collective bargaining agreement provisions.
Represent employers in grievance and arbitration proceedings:
- Advise employers on appropriate discipline under the collective bargaining agreement;
- Assist employers in responding to grievances through the grievance procedure;
- Participate in the selection of the arbitrator;
- Prepare for and defend employers at arbitration hearings;
- Prepare and submit post-hearing briefs in the arbitration process;
- Represent employers in court proceedings in connection with arbitrations (petitions to compel arbitration or petitions to enforce arbitration awards).
Advise employers with regard to picketing, boycotting and hand-billing in connection with labor disputes.
Our labor team is led by Rick Ross and Karen Schanfield, who each have over 30 years traditional labor law experience.
Rick Ross was a Staff Attorney at the NLRB in Region 2 (New York) for nearly four years, where he investigated and tried numerous Unfair Labor Practices cases, coordinated and conducted dozens of elections and appeared in federal court multiple times in connection with cases involving secondary boycotts. Since leaving the NLRB, Rick has represented hundreds of employers in NLRB proceedings, collective bargaining negotiations and arbitrations, including:
Rick successfully negotiated a renewal collective bargaining agreement in 2007, in which the union agreed to permit the employer to subcontract and out-source a significant portion of the production work, resulting in lay-offs of employees represented by the union.
Rick recently won an arbitration involving a male employee who was accused of sexually harassing another male co-worker (both union members), which resulted in the discharge of the accused employee. The terminated employee denied the behavior, but Rick convinced the arbitrator that the terminated employee was not credible and the arbitrator denied the grievance.
Rick successfully defended an unfair labor practice charge in which the union claimed that the employer failed to bargain in good faith unilaterally imposed new terms of employment and failed to reach impasse. The NLRB held that the employer had bargained in good faith and properly asserted impasse, resulting in the union going on strike in 2004. Rick advised the employer on how to hire permanent replacements, and since the strike unsuccessfully ended after six months, the employer only had to reinstate one employee. Based on Rick's advice, the employer implemented its last, best, and final offer. The employees lived under that imposed agreement for two years, and when it was time to bargain again, the union unilaterally disclaimed interest in representing the employees. In the end, the company became non-union.
Karen Schanfield is a seasoned labor law practitioner. She has represented both public and private employers in all aspects of traditional labor law. She has handled several successful organizing campaigns on behalf of employers, including union attempts to organize nurses, university faculty, research and teaching assistants, and clerical employees.
Karen has represented private and public employers on labor relations, including serving as in-house labor counsel for the University of Minnesota for six years.
Karen recently prevailed in an unfair labor proceeding against a health care provider whose home health care providers decertified the union that had represented them for many years.
Karen has successfully negotiated numerous collective bargaining agreements. In this process she has helped hospitals implement lawful drug and alcohol testing programs, universities address tenure processes and faculty performance, and a large social service agency implement performance based pay.
Our team has tried numerous Unfair Labor Practice (“ULP”) cases, including appeals to federal circuit courts of appeals. Team lawyers have also participated in and represented employers during ULP investigations.
We have vast experience negotiating collective bargaining agreements, including formulating strategies for initial and/or renewal negotiations, drafting and revising specific provisions for collective bargaining agreements, acting as spokespersons at the negotiation bargaining table, and assisting employers in interpreting collective bargaining agreement provisions.
The labor team has represented employers in hundreds of grievance and arbitration proceedings. We have advised employers on appropriate discipline under the collective bargaining agreement, assisted employers in responding to grievances through the grievance procedure, participated in the selection of the arbitrator where appropriate, prepared for and defended employers at the arbitration hearing, prepared and submitted post-hearing briefs in the arbitration process and represented the employer in appropriate court proceedings in connection with arbitrations (i.e. petitions to compel arbitration or petitions to enforce arbitration awards).
We have advised employers with regard to strikes, picketing, boycotting and hand-billing in connection with labor disputes, and have successfully sought injunctions on behalf of employers faced with unfair tactics by unions.
The labor team members have represented numerous employers in organizing campaigns and representation elections in an effort to avoid unionization. This includes coordinating strategies to avoid and/or win elections conducted by the National Labor Relations Board, and representing employers in legal proceedings involving NLRB elections, such as disputes as to the unit description, eligibility of voters and objections to the conduct of the election and advising employers on union avoidance issues.
Counseled numerous large employers on matters related to discipline, termination, and hiring in union and non-union environments.
We help clients prepare for potential union organizing efforts by giving on-site training sessions for managers and supervisors, helping employers identify and address potential areas of concern within their organizations, and drafting and assisting with implementation of policies related to solicitation, distribution of literature, and the use of electronic resources.