grievance and arbitration strategies · indiana convention center and plumbers and steamfitters...

2018 LABOR LAW SOLUTIONS

OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 13-1

GRIEVANCE AND ARBITRATION STRATEGIES

Ursula A. Kienbaum – Ogletree Deakins (Portland (OR))

Wade M. Fricke – Ogletree Deakins (Cleveland)

Todd C. Duffield – Ogletree Deakins (Atlanta)



Grievance and Arbitration Strategies

by Ursula A. Kienbaum, Wade M. Fricke, and Todd C. Duffield

I. GRIEVANCE INVESTIGATION

Before taking any action under a labor contract, the Company should evaluate relevant contract provisions and other pertinent factors. Investigating properly before taking action can help to avoid action that may violate the contract and promote positive employee relations, thus limiting the number of grievances and arbitrations. Generally, two varieties of grievances arise under collective bargaining agreements: (1) those alleging violation of a specific contract provision that are non-disciplinary in nature; and (2) those challenging employee discipline. Each type of grievance requires a thorough investigation to ensure the employer’s actions are defensible. Investigations help ensure fundamental fairness and/or “just cause” is being respected. Time spent and attention to detail will help to minimize the chances that imposing discipline will be the subject of a grievance and perhaps arbitration, while maximizing the chances of any discipline imposed will be upheld if later challenged.

A. Conduct investigations with an eye to the issues on which the arbitrator will focus.

Particularly in discipline cases, arbitrators look for “fairness,” which means different things to different people. Notions of “fairness” usually include due process (i.e., procedural fairness) and progressive discipline (with exceptions for particularly serious violations). Arbitrators’ notions of “fairness” also often include taking into account mitigating factors. For example, even if the offense at issue was serious and might warrant termination, it is common for an arbitrator to reduce discipline imposed on an employee with many years of service and a relatively clean work record. See Elkhart County, Ind., Gov’t, 112 LA 936 (Cohen, 1999) (considering employee’s 13 years without discipline during 14 years of service).

Arbitrators take all disciplinary matters seriously, but especially discharge decisions, which have been described as “the industrial equivalent of the death penalty.” In discipline and discharge cases, under most collective bargaining agreements, arbitrators will evaluate whether there was “just cause” for the Company’s action. As one arbitrator put it: “the essence of just cause is that the Employer, in carrying out its inherent or express right to discipline employees, must do so in a manner that is not unreasonable, arbitrary, capricious, or discriminatory.” Indiana Convention Center and Plumbers and Steamfitters Union, Local 400, 98 LA 713, 719 (1992). In discipline and discharge cases, most arbitrators assume that certain offenses, if proven, warrant immediate discharge (e.g., theft, gross insubordination, violence in the workplace), while others generally require progressive discipline (e.g., performance issues, routine safety matters, attendance issues).

Arbitrators also frequently address the following seven questions when evaluating a claim that challenges discipline:

(1) Did the employer forewarn the employee of the disciplinary conse-quences of the employee's misconduct?

(2) Was the employer’s rule reasonably related to the orderly, efficient, and safe operation of the employer’s business?



(3) Did the employer, before administering discipline, make an effort to discover whether the employee violated the employer’s rule?

(4) Was the employer's investigation conducted fairly and objectively?

(5) During the investigation, did the employer obtain substantial evidence that the employee was guilty as charged?

(6) Has the employer applied its rules, orders, and penalties evenhandedly and without discrimination to all employees?

(7) Was the degree of discipline administered reasonably related to (a) the seriousness of the employee’s proven offense, and (b) the record of the employee’s service?

In non-discipline cases, there are many ways an arbitrator may attempt to be “fair.” Arbitrators may interpret a contract in light of the law to avoid invalid contracts. Shook, Inc., 87 LA 1221, 1226 (Hayford, 1986) (parties are presumed to have entered into a valid contract). They may interpret a provision against the party that selected the language. Georgia-Pacific Corp., 87 LA 217, 221 (Cohen, 1986). Arbitrators may cite the covenant of good faith and fair dealing as support for their interpretive decision. Steelworkers Local 4264 v. New Park Mining Co., 273 F.2d 352, 356-57 (10th Cir. 1959). Arbitrators may also apply the fair bargain concept to avoid harsh results, or even apply reason and equity to determine the result. See Sharon Steel Corp. v. Chase Manhattan Bank, 691 F.2d 1039, 1051 (2d Cir. 1982) (applying fair bargain to advance marginal interest of both parties instead of the major interest of only one); Clean-A-Rama, 99 LA 370 (Concepcion, 1992) (finding interpretation in line with logical and realistic reading of contract should prevail). Finally, if an agreement is susceptible to two constructions, an arbitrator may be inclined to adopt the construction that avoids forfeiture. City of Marion, Ohio, 91 LA 175 (Bittel, 1988).

B. Collect and review various documents before conducting interviews.

Documentation is critical. Most cases are won or lost on the strength of documentation. If it comes down to management's word versus the employee’s, most arbitrators will give the employee the benefit of the doubt (particularly in discipline cases, where management has the burden of proof). Therefore, proper documentation may not only prove the offense but can prove the thorough and objective nature of the employer’s investigation. Documentation should establish: who; what; when; where; why; and how. Likewise, investigation notes should show the date, time, and place of meeting; who is the author of the notes; who was present; what each person said; and include a reference to any documents or other evidence obtained or exchanged (to make sure these are preserved).

For alleged violations of a specific contract provision, the Company should investigate to be sure it understands both the contract and the grievance. The Company should carefully question the union to ascertain its specific objection to the Company’s action under the contract. The Company should collect the grievance and all related correspondence, applicable collective bargaining agreements, relevant side letters, bargaining notes, and other similar documents. See Department of the Air Force, 114 LA 1351 (Richard, 2000) (admitting contemporaneous counseling and meeting notes).



For disciplinary grievances, the Company should gather documents that confirm communication/publication of the policy (and hence employee knowledge — actual or implied), evidence the procedure or practice allegedly violated, and demonstrate the employee had knowledge of the consequences of the violation. Relevant documents might include: applicable collective bargaining agreements; relevant side letters; correspondence; work rules; employee’s personnel file; employee’s prior discipline (if not in personnel file); similar discipline of other employees in bargaining unit (last 3 years if possible); any relevant video (e.g., security camera) or photographs; if prospective discipline/termination is for poor performance, documents showing performance standards and employee's actual performance; if prospective discipline/termination is for misconduct, the rule that was violated; if prospective discipline/termination is for attendance, the attendance policy and a chronological list of employee’s attendance and related progressive discipline; if lack of training is an issue, documents of training programs the employee has attended and sign-in sheets and/or tests; and prior decisions or arbitration awards on the same or similar issue.

While the parol evidence rule is frequently applied in arbitration cases, there are exceptions to it, and it does not cover all writings. See Spartan Stores, 105 LA 549 (Kanner, 1995) (considering extrinsic evidence of past contract language and negotiations where provision was found ambiguous, despite collective bargaining contract’s clause which stated that agreements and past practices other than those referenced in the contract were not binding on the parties); Dayton Walther Corp., 96 LA 570, 572 (Wren, 1991) (arbitrators are liberal in allowing testimony on contract negotiation). Therefore, the Company should gather prior collective bargaining agreements involving the disputed language, bargaining notes related to the dispute, relevant side letters, Memoranda of Understanding between the Company and the union relevant to the disputed issue, and any other documents related to prior interpretations or past practices regarding the contract clause or issue in dispute.

The Company should also collect any handbooks or bulletins, as those may aid an arbitrator in interpreting any ambiguous contractual language. See Furniture Workers Local 395 v. Virco Manufacturing Corp., 257 F. Supp 138 (E.D. Ark. 1966) (considering pamphlet); Central Hudson Gas & Elec. Corp., 101 LA 894, 899-900 (Eischen, 1993) (considering company memorandum); Florida State Univ. Bd. Of Regents, 99 LA 425, 427 (Goggin, 1992) (considering handbooks). Likewise, the Company should collect management and Human Resources/Labor Relations (HR/LR) investigation notes, any documents produced to the union, and any prepared charts of work flow (if applicable), because those documents may either affect the interpretation of the contract, or help the arbitrator to understand why the contract contains certain language and the operative meaning of that language.

C. Identify relevant witnesses.

HR/LR should coordinate the investigation with management, and whenever possible, the primary investigator should be accompanied by another management “witness.” No manager should take disciplinary action against an employee before talking with HR/LR.

Someone with in-depth knowledge of the labor contract and the bargaining unit should participate in the investigation. The employer should interview affected employees (including the employee subject to discipline, if applicable) early in the process, unless there is good reason for delay.

During the interview process, the employer should interview all witnesses named by the union and/or employee raising the grievance. Interviews should be conducted with all potential



witnesses, regardless of the position they might support. Follow-up interviews or meetings may be necessary with some witnesses, including the aggrieved employee(s). The amount of investigation necessary will depend on the number of witnesses, the strength or weakness of the case, the seriousness of the alleged contract violation or potential discipline, and the likelihood that grievance will be escalated to arbitration.

D. Conduct a focused and fair investigatory interview.

The style of conducting an investigatory interview is very important. The interview should begin by stating the purpose of the meeting or interview, and by asking open-ended questions. Listen carefully to the answers, and ask follow-up questions as appropriate (who, what, when, where, why and how?). Then, the focus of the inquiry should be narrowed in an effort to obtain all relevant information. Always research the collective bargaining agreement and any relevant rules, policies, and past treatment for similar offenses beforehand, because this might impact your follow-up questions.

Establish and maintain control of the interview throughout. Be firm when necessary, but remain calm. Do not be baited by the employee or the witness, and do not allow the interview to turn into an adversarial contest. Go in with an open mind, and allow the employee to tell his/her story. Deny accusations of unlawful motive or contract violations if raised by the employee or witness (without getting into an argument). Acknowledge rights raised by the employee, and do not be side-tracked by the witness. Save any physical evidence that may be collected, and finally, always remember the importance of the perception of fairness. Finally, carefully document what was said and observed during the meeting or interview.

E. Ensure consistency of treatment.

When evaluating disciplinary grievances, arbitrators look not only to see if the level of discipline is appropriate (if “the sentence fits the crime”), but also whether that level of discipline has been applied consistently to other employees in the past. From the arbitrator’s viewpoint, consistent treatment of employees promotes fairness because it: (1) informs employees of what will happen if they violate the rule, and (2) ensures management does not discriminate or play favorites. Fairness demands that like cases be treated alike. Therefore, with limited exceptions, disciplinary treatment should be consistent across all shifts, units, departments, and classifications. A corollary is that cases which are different should be distinguished and treated differently.

F. The Union’s role in investigations and Weingarten rights.

The union has a right to participate in certain pre-disciplinary investigatory meetings, at the request of the employee under investigation. See NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975). Because some collective bargaining agreements contain more specific rights regarding employees’ rights during investigations, the Company should be familiar with the applicable collective bargaining agreement.

The U.S. Supreme Court’s Weingarten decision established that a bargaining unit employee has the right to have a union representative or other employee (i.e., a witness) present in any investigatory meeting when the employee being investigated reasonably believes the investigation could result in disciplinary action. Only employees represented by a union have Weingarten rights, and Weingarten does not apply to non-bargaining unit employees or members of management.



There is no need to give employees notice of the right before the interview begins. Weingarten does not give employees “Miranda rights.” Instead, the employee needs to ask for representation, but there are no magic words. The employee’s request only needs to put the employer on notice of employee’s desire for representation. Note that the employee only has to ask once, and that questions may be sufficient (e.g., “Do I need a witness?”), and statements may be sufficient even if unwarranted (e.g., “I want my lawyer” or “I want my supervisor”). While the employer is not required to grant the request for a lawyer or supervisor, it is sufficiently on notice that the employee wants a witness.

The employee can waive the Weingarten right expressly or by silence, but if the employee does so management should document the waiver. The right to request a witness belongs to the employee, not the union. A union representative cannot invoke the right (e.g., representative cannot go to a supervisor and say, “I want to participate”). If the employee asks the reason for the meeting, the employer need not provide all the details but must give enough information for the employee to make an informed choice about Weingarten rights.

Weingarten applies when the employee reasonably believes the investigation may result in disciplinary action to him or her. This includes counseling sessions that are preliminary to discipline and fact-finding sessions if discipline could occur, even if the intent at the beginning of the interview is not to discipline.

Weingarten does not apply to the following situations: giving instructions; providing training or needed corrections of work techniques that will not result in discipline; counseling sessions where management has given absolute assurance that no disciplinary action will arise from the meeting; and meetings called for the sole purpose of informing employees of disciplinary action previously decided upon.

The Weingarten representative may be a fellow employee chosen by the employee being questioned, a union steward, or a union representative (non-employee, paid union staffer). The representative is the employee’s choice so long as it does not unduly delay the investigation or discipline. If honoring the employee’s choice would cause undue delay, the employee’s choice can be denied so long as another witness is available.

The Weingarten witness is limited in what he/she can or cannot do. The Weingarten witness is permitted to provide the employee some pre-interview consultation; play “some role” and provide “meaningful representation”; interrupt and ask for clarification of the question; and present some limited argument and advocacy. The Weingarten witness, however, is not permitted to: interfere, obstruct, or disrupt the investigation; take over for the employee by answering questions or otherwise presenting the employee’s position during interview phase; demand that management negotiate with the representative over the discipline; transform the interview into an adversarial contest or hearing; instruct the employee to remain silent or advise not to cooperate; or be abusive to management (e.g., shout, pound the table, insult, or demean).

II. CHECKLIST FOR EVALUATING CONTRACT INTERPRETATION CASES

A. Review all documents needed to evaluate the situation.

• Grievance and all related correspondence;

• Prior collective bargaining agreements involving disputed language;



• Bargaining notes related to dispute;

• Relevant side letters and Memoranda of Understanding between the Company and union relevant to the disputed issue;

• Any other documents related to prior interpretations or past practice regarding the contract clause or issue in dispute;

• Management/HR/LR investigation notes;

• Documents produced to union; and

• Charts of work flow (if applicable).

B. Prepare a detailed Chronology.

• Prepare a detailed chronology including the date, event, and any relevant witnesses or actors.

C. List and evaluate witnesses.

• Company witnesses and a brief statement of their involvement in the dispute.

• Company (and union) officials who negotiated the language in dispute.

• Decision makers involved in dispute.

• Other witnesses (including probable union witnesses and a brief description of their expected testimony).

D. Evaluate the grievance and prepare a response in light of rules for contract interpretation.

• Prepare a paragraph describing the dispute.

• Describe in detail (at least an additional paragraph) why the union or employee disagrees with the Company’s interpretation of the contract. Describe what facts the union disputes, if any, regarding the events that led to the grievance. Even if you believe the grievance is unfounded, pay careful attention to articulating and understanding the union's arguments for its stated interpretation.

• Evaluate whether to deny the grievance, sustain the grievance, or explore ways to resolve it other than arbitration. Be sure to consider whether the union raised the grievance timely (i.e., in accordance with the plain language of the grievance procedure in the contract). Also, consider the long-term consequences of taking a particular position. Keep in mind that arbitrators will generally use one or more of the following rules when interpreting contracts:



1. Specific language controls general language.

2. To express one thing is to exclude another.

3. Interpret words within their context.

4. Construe the agreement as a whole.

5. Construe ambiguous language against the author.

6. Use common, not technical, meaning of words.

7. Settlement offers are not used to interpret language.

8. Use past practice if the language in the agreement is ambiguous.

• Past practice should only be used if both parties were aware of their practice and accept it.

• Practice must have been of sufficient duration.

III. CHECKLIST FOR EVALUATING DISCHARGE AND DISCIPLINE CASES

A. Review all documents needed to evaluate the situation.

• Grievance and any related correspondence;

• Any documents produced to union;

• Discipline/termination notice to employee;

• Management/HR/LR investigation notes;

• Witness statements;

• Documents and transcript from unemployment hearing (if applicable); and

• Any allegations contained in administrative charges filed with the Equal Employment Opportunity Commission, Occupational Safety and Health Administration, or any other governmental agency.

B. Prepare a detailed Chronology.

• Prepare a detailed chronology including the date, event, and any relevant witnesses or actors.



• Start with employees’ date of hire and include relevant dates related to the discipline/discharge. Give more details relating to event leading to discipline/discharge (i.e., there can be several entries on the same date).

C. List and evaluate witnesses.

• Company witnesses and a brief statement of what they witnessed.

• Decision maker(s) and HR/LR professional(s) advising on decision.

• Other witnesses, including union employees and a brief description of what they witnessed.

D. Prepare a Case Evaluation and Recommendation.

• Prepare a paragraph describing why the employee was disciplined/discharged. Note what the employee admits, if anything, regarding the events that led to the discipline/termination.

• Describe in detail (at least an additional paragraph) why the union or employee disagrees with the discipline/termination. Describe what facts the employee disputes, if any, regarding the events that led to the discipline/termination. Even if the grievance appears to be unfounded, pay careful attention to articulating and understanding the employee's or the union's arguments for opposing the discipline.

• Evaluate whether to deny the grievance, sustain the grievance, or explore ways to resolve it other than arbitration. Keep in mind that, in a discipline/termination case, the Company has the burden of proof—usually a burden to establish “just cause” for the disciplinary action.

• Keep in mind that most arbitrators find that certain offenses, if proven, warrant immediate discharge (e.g., theft, gross insubordination, violence in the workplace), while others generally require progressive discipline (e.g., performance issues, routine safety matters, attendance).

• Keep in mind mitigating factors an arbitrator may take into account, such as the employee’s length of service with the Company, a clean employment record, or lack of progressive discipline.

• Generally, the Company should be able to answer "yes" to all seven of the following questions:

1. Did the employee know the rule and its consequences?

2. Is the rule reasonable?

3. Did the employee disobey the rule?



4. Did the Company conduct a fair investigation? (Was the employee interviewed?)

5. Does the company have proof that the employee is guilty of the infraction?

6. Has the rule been applied consistently?

7. Does the penalty match the offense?

IV. FINAL THOUGHTS

If you decide to deny a grievance, respond in the manner required by the collective bargaining agreement. Evaluate whether a detailed response is helpful. Arbitrators may look to the Company’s response to the grievance to determine whether the Company preserved a specific defense. If appropriate, use a response format that provides a brief, logical, and self-serving summary of the union’s position, the Company’s response, and objective reasoning that supports the Company’s position.

If appropriate, explore any alternatives that may resolve the dispute prior to formal arbitration. When in doubt, before determining the Company’s position on the grievance, contact legal counsel.

1

PRESENTED BY:

Todd C. Duffield (Atlanta), Wade M. Fricke (Cleveland), and Ursula A. Kienbaum (Portland (OR))


December 5-7, 2018 – Waldorf Astoria Las VegasLabor Law Solutions: Practical Solutions for Today’s Workplace

• Contractual mechanism• Dispute resolution• Timing considerations

– Mutual agreement?o Practice of the parties?o Assert early in process

The Grievance Procedure


• Difficult job!• Need to be aligned

‒ Unions looking for weak links

• Eliminate subjective feelings‒ Objective‒ Professional

• Grass roots implementation of Company’s culture and objectives

‒ Know the why‒ Elevator speech prepared

Leadership’s Role in the Process

2


Union Challenges

• Respect union leadership– Street smarts– Supervisors with fancy degrees

• Intimidation?

– Why did union file this grievance?

• Desire to partner with Company• Political issues within union• Don’t like surprises• Member ULPs


The Collective Bargaining Agreement

• Know it!• Grievance Procedure

– Timing– The players– Arbitration process– Know the hot buttons

• Setting up future negotiations


The Grievance

• Take it seriously• Union request for data

– Don’t wait!– If you’ll use it at arbitration, produce it

• Relevant notes only

• Answer to the Arbitrator– Not “no violation of Contract”– Show your cards

• Encourage union to do same

– If it’s not part of your answer, it won’t be part of your case

3


• Duty to furnish under Sections 8(a)(5) and 8(d) of the NLRA)

• Presumptively relevant information conditions• Other information union in carrying out its duties• Practice Tip: For significant requests, employer

should request more information from union about basis for request

Information Requests


Past Practice

• Fills in cracks in CBA• Interpretation book• Union/management meetings• Does your CBA have a zipper clause?• Can cut both ways• Beware of the pick-up truck filing system!• Difference between PP and “reasonable work

rule” changes


Preparing for Arbitration

• REVIEW PANEL!!!• Two kinds of cases• Disciplinary case• Breach of CBA• Significance:

– Burden of proof• Discipline – Company• Breach of CBA – Union

– Who goes first• Discipline – Company• Breach of CBA – Union

4


Discipline Case

• Seven Steps to Just Cause1. Did employee know of rule violated?

2. Is the rule reasonable?

3. Proper investigation?

– Timely– Suspension pending investigation?

4. Investigation fair and thorough?

– Who?– What?– Where?– When?


Discipline Case

• Seven Steps to Just Cause– Interview all witnesses– Interview employee to be disciplined– DOCUMENT– Gather evidence

5. Does Company have adequate proof?

6. Even-handed application of the rules (yes – the big type is intentional)

7. Does the penalty fit the crime?


Breach of Contract Case

• Most important – what does the CBA say???• If not clear:

– NEGOTIATION NOTES MATTER!• Order of proposals

– Vague language held against drafter of language– Party can’t get through arbitration that which it didn’t get

through negotiations

– How has the language been applied?• Union waiver

5


Preparing for Hearing

• Understand the facts• Understand possible defenses/arguments (use Elkouri to help

outline a strategy)

• Contract interpretation cases:– Relevant contract language, bargaining history, past practice,

business justification, and degree of “harm” to the bargaining unit

• Discipline and discharge cases:– Nature of offense, disputed facts, progressive discipline,

employment history, consistency of treatment of similar offenses, procedural regularity/due process, and (if not obvious) explanation as to why this offense is so significant



• Witnesses– Early involvement in case preparation

• Ensures no last minute surprises• Gets story recorded early to avoid fading memory• Gets them invested in your side

– Preparation for testimony• Share “theories” of the case – let them help you• Prepare them to be able to “teach” the arbitrator• Get them ready for cross-examination (essential to know the

other side’s story)

• Make sure they know how to “protect” their side of the story, without looking argumentative or difficult



• Witnesses, cont.• Subpoenas

– Can request from arbitrator for represented or adverse witnesses• Interviews

– Must give Johnny’s Poultry warning before speaking with any represented employee • Consider acknowledgment for employee to sign beforehand

6


Presenting the Case

• Be sensitive to relationships– Union counsel with arbitrator– Union reps and employees with your local management

team

– In a small club, it seldom pays to be a jerk

• Follow local customs– Joint exhibits, stipulations of issues (and other

undisputed items), reservation of damages issues


Presenting the Case

• Focus on “teaching” the arbitrator– Use openings to frame the issues idea– Give the arbitrator the information he or she needs to

decide the case

– Let your witnesses look good and credible


Presenting the Case

• Effective cross-examination in arbitration– Distinct skill from typical trial cross-examination– No depositions or other statements that tie adverse

witnesses down

– More subtle approach:• More charm required• Get them to be cooperative• Pin down with facts they can’t or won’t contest• Highlight logical or factual inconsistencies from their direct testimony

7


Briefing

• Overview, relevant CBA provisions• Fact statement, with critical detail • Argument

– Remind of burdens of proof– Cite Elkouri and use the accepted elements set forth (most

good arbitrators will look to it)

– Cite other arbitral authority (BNA, CCH, unpublished awards) and attach copies of key awards

– Address the union’s arguments

• Don’t go overboard with attacks


Grievance Settlements

• Common ground to get to cultural change• Must be in writing• Most often should state “without precedence or

prejudice to any other matter”

• Confidentiality– Not worth much

• Last chance agreements– Very effective to tee up termination for chronically-

difficult employees


A Step Back – Cultural Change Opportunities

• Creating a collaborative change culture with the union through:– Monthly union management meetings– Interpretation books– Grievances– Negotiations– “You start negotiating your next contract the day after

the last one is signed”

8


A Step Back – Creating the Change

• Union/management meetings– Create business case of why we need to change

something

– Have conversation with union leadership

• Interpretation book– Should be gift you give to next HR/Ops leader – Notes from union management meetings attached to

provisions of contract


A Step Back – Grievances as an Opportunity

• Grievances as opportunity to change/enhance culture

• Lack of collaborative culture– Grievances– Arbitrations– NLRB charges– Slow-downs– Sick-outs

PRESENTED BY:

Todd C. Duffield (Atlanta), Wade M. Fricke (Cleveland), and Ursula A. Kienbaum (Portland (OR))


Ursula A. KienbaumShareholder Portland (OR)503-552-2171

[email protected]

Admitted to PracticeOregon

Washington

U.S. District Court, District of Oregon

EducationJ.D., Northwestern School of Law of Lewis

and Clark College, 2004

B.A., University of Montana, 1998

Ursula Kienbaum has spent her entire legal career representing and counseling employers in

traditional labor and employment law matters. Specializing in traditional labor relations, particularly in

the manufacturing, food processing, waste disposal, and telecommunications industries, Ursula

represents employers in representation and decertification proceedings, union campaigns, strike

preparation, contract administration, and labor arbitrations. Ursula also has significant experience

investigating and responding to unfair labor practice charges before the National Labor Relations

Board.

In addition, having a broad background in employment law, Ursula routinely assists clients with

day-to-day employment issues (discipline, discharge, and wage and hour issues), and has experience

defending employment harassment, discrimination and retaliation claims before state and federal

courts and the Oregon Bureau of Labor and Industries. Ursula also has experience representing and

advising clients regarding independent contractor misclassification issues, including audits with the

Oregon Department of Labor and the Oregon Employment Department. Recognized as an Oregon

Super Lawyers Rising Star from 2012-2014, Ursula greatly values the strong relationships that she builds

with her clients.

Wade M. FrickeShareholder Cleveland216-357-4732

[email protected]

Admitted to PracticeOhio

EducationJ.D., Washington and Lee University, 1989

A.B., Princeton University, 1984

Wade Fricke has practiced management-side labor and employment law since 1989. He was one of

three attorneys who founded the Cleveland office of the firm. Prior to joining the firm, Wade was a

partner in Cleveland’s oldest law firm, and before that, he worked for the Cleveland office of a national

full-service law firm.

Wade represents companies of all sizes across the country in virtually all aspects of employee relations

in union and non-union settings. In both settings, Wade’s practice focuses on issue avoidance and

positive employment practices. In union settings, Wade has extensive experience in contract

negotiations and, where necessary, grievance resolution and arbitration, and strike management and

resolution. His experience in non-union settings includes extensive employment relations auditing,

supervisor training, union representational election work, drafting and reviewing employee handbooks

and work rules, sexual harassment and other training, and most aspects of preventative-maintenance

labor and employment counseling regarding state and federal regulation of the workplace.

Wade’s employment counseling experience includes practice before the Ohio Civil Rights Commission,

the Equal Employment Opportunity Commission, the Department of Labor and the National Labor

Relations Board.

Wade is one of eight attorneys serving on the steering committee of the firm’s 125-plus member

Traditional Labor Practice Group.

Todd C. DuffieldShareholder Atlanta

404-870-1701

[email protected]

Admitted to Practice

Georgia

New York

Education

J.D., with honors, University of Pittsburgh

School of Law, 1999

B.A., Brigham Young University, 1995

Todd Duffield is a shareholder in Ogletree's Atlanta office. His practice focuses on representing employers in all

aspects of labor and employment law, including counseling, labor-management relations, employment and

restrictive covenant litigation.

Todd is a trusted advisor and regularly counsels corporate executives, in-house legal counsel, and human

resources leaders on matters such as risk management; labor relations; restrictive covenants; workforce

planning (including workforce growth and reductions in force); labor and employment issues pertaining to

corporate mergers, divestitures, and other transactions; employee recruiting and hiring practices; leaves of

absence; workplace accommodations; and employee discipline and termination.

Todd also represents and defends employers before administrative agencies (including the National Labor

Relations Board, the National Mediation Board, the National Railroad Adjustment Board, the Equal Employment

Opportunity Commission, and the U.S. Department of Labor) and in state and federal courts throughout the

country. Todd has defended clients in single and multi-plaintiff employment disputes involving allegations of age,

race, national origin, sex and disability discrimination, breach-of-contract claims, and whistleblower claims. Todd

also has extensive experience representing both plaintiffs and defendants in disputes involving non-competition,

non-solicitation of customers, non-recruitment of employees and non-disclosure agreements as well as disputes

involving trade secrets, tortious interference with business and contractual relations, breach of fiduciary duty, and

breach of the duty of loyalty.

As a member of the firm’s Traditional Labor Practice Group and co-chair of the Airline and Railroad Practice

Group, Todd’s practice encompasses advising employers about their obligations under the National Labor

Relations Act and Railway Labor Act, collective bargaining, grievances and arbitrations, and all forms of

counseling regarding union and employee relations.

Todd serves as an editor to several authoritative labor law treatises; has published numerous articles on labor

and employment subjects; is a frequent lecturer at labor and employment seminars, bar association meetings,

and client seminars on labor and employment law issues. Todd also presents in-house compliance training for

senior executives and human resource managers.

Todd is an active member several American Bar Association committees, currently serves as the management

co-chair of a regional subcommittee of the ABA Labor & Employment Section’s Committee on Practice and

Procedure Under the NLRA, serves as a leader in the Boy Scouts of America, is involved in humanitarian relief

efforts, spent two years as a missionary in the Caribbean and is fluent in Spanish.

Pennsylvania

Utah

U.S. District Court, Eastern and Southern

Districts of New York

U.S. District Court, Northern District of Georgia

U.S. District Court, Western District of

Pennsylvania

U.S. District Court, District of Utah

U.S. Court of Appeals, Third, Fifth and

Eleventh Circuits

United States Supreme Court