Frederick D. Braid

Mr. Braid's experience in traditional labor relations matters includes representation of employers:

• in more than 150 union-organizing campaigns and related National Labor Relations Board (NLRB) representation and unfair labor practice proceedings
• with proactive union awareness/avoidance training of supervisors and management
• in more than 25 National Labor Relations Act (NLRA) § 10(l) and/or 10(j) injunction proceedings in connection with secondary boycotts, jurisdictional disputes and other alleged unfair labor practices
• in a half-dozen Boys Markets injunction cases
• in about a dozen injunction cases to enjoin violence and property damage in connection with strikes
• in about a half-dozen NLRA § 301 and 303 causes of action
• and multiemployer associations as principal spokesperson in more than 300 collective bargaining negotiations, including negotiations for project labor agreements, a handful in connection with bankruptcy proceedings and a dozen in the public sector culminating in interest arbitration
• in more than 200 grievance arbitration proceedings involving disciplinary action and contract interpretation
• in sales, acquisitions, mergers, closedowns, restructurings and relocations in which union issues were involved because of collective bargaining relationships

Mr. Braid's experience representing employers subject to both the Occupational Safety and Health Act (OSHA) and the Mine Safety and Health Act (MSHA) since the inception of OSHA includes:

• issues involving workplace safety (e.g., accidents, injuries, fatalities) as well as health (e.g., toxic exposure to chemicals and carcinogens, noise) issues

• all phases of the investigation and citation contest process, from representation at onsite inspections and management interviews by the government, through informal conferences with local area offices and negotiation of settlement agreements to formal defense of litigated contest proceedings initiated by the Solicitor of Labor's office before administrative law judges, as well as related appeals
• catastrophic workplace accidents involving fatalities and/or multiple hospitalizations, including onsite guidance in order to provide timely advice and to contain the OSHA/MSHA issues to help insulate the employer from criminal prosecution as well as to manage property and personal injury liability and related insurance coverage issues
• defense against safety-related retaliation claims by employees and former employees
• development of general safety and health programs, compliance with regulation-specific programs, and assistance in obtaining qualification for voluntary protection programs
• seeking modification of regulatory requirements
• membership on the American Bar Association's Committee on Occupational Safety and Health Law and contributing author to all editions of the ABA treatise entitled Occupational Safety and Health Law

• Engaged by nonunion marine transportation company operating in a number of East Coast ports to prepare management team to expand operations into heavily unionized New York Harbor while maintaining nonunion status. Advised management and first-line supervisors concerning legal framework for union organizing activity and lawful practical aspects of resisting organizing activity. Client successfully expanded into New York Harbor, maintained its nonunion operation and has since expanded into West Coast ports.
• Engaged by nonunion employer that replaced unionized employer in competitive bid to operate a sophisticated waste-to-energy plant. Advised client regarding hiring and establishing initial terms of employment so that it began operations with reduced workforce and reduced, more cost-effective and efficient conditions that avoided assumption of union contract. As principal spokesperson in ensuing negotiations, resisted efforts to restore working conditions to their previous level until majority of bargaining unit disavowed Operating Engineers. Client withdrew union recognition, and union unsuccessfully attempted to restore it through a representation election that it had requisite 30 percent showing of interest to support. Successfully defended against all unfair labor practice charges filed by union over claims of discriminatory hiring, unlawful withdrawal of recognition, and a refusal to bargain in good faith for reducing and implementing new terms of employment at outset.  Also successfully defended against a handful of complaints filed with the state antidiscrimination agency by employees who were not hired by our client.
• Client lost close election to United Steelworkers in relatively small unit by one vote, and then commenced negotiations knowing outcome would be harbinger of things to come at its 20 other 24/7, high-tech facilities operated around the country. After six months of hard-nosed bargaining, Steelworkers withdrew as it lost employee support and realized it did not have sufficient economic leverage to accomplish its negotiating objectives.
• Engaged by nonunion employer client that converted city's bio solid waste to fertilizer pellets for rail shipment around country. In anticipation that its drivers who transported the bio solid waste from the city's facilities to its plant would be target for organizing by Teamsters, who controlled all trucking in waste industry in city, jobs of drivers were carefully structured to include duties of other plant personnel in addition to driving. In three successive attempts by Teamsters to organize the drivers, succeeded in keeping Teamsters from isolating drivers as an appropriate unit in NLRB representation proceedings, and the inclusion of other plant personnel in unit with drivers always tipped balance to client in each representation election. Employer's success marked first time in this market that trucking in waste industry did not involve Teamster drivers and was done nonunion.
• Engaged by multiemployer association in construction industry with 155 member employers that had been plagued for more than 40 years by featherbedding-like provisions in collective bargaining agreement that added substantial costs and inefficiencies projects. Unlawful union activity (e.g., sabotage and property damage) had for many years made it unprofitable and dangerous for the association and its members to pursue change aggressively. Finally, economic conditions, the threat of nonunion competition and a changing environment because of federal prosecution of unlawful union activity in this industry, made it feasible for client to seriously pursue long overdue changes of conditions plaguing industry. As principal spokesperson in bargaining, guided client to lawful impasse, unilateral implementation of final proposal eliminating objectionable work practices, and successful defense of four rounds of unfair labor practice charges seeking to undo the unilateral implementation.
• Healthcare client had three collective bargaining units under contract with 1199SEIU and two recently organized units in which negotiations were underway with 1199SEIU for initial contracts. In midst of negotiations in new units, and while other units were all midterm in their collective bargaining agreements, client decided to implement employee stock ownership plan (ESOP), a mandatory subject of bargaining. ESOP was only feasible on companywide basis including all employees, union and nonunion. Advised existing collective bargaining agreements did not address subject and, therefore, did not foreclose client's raising it midterm in those three units. Negotiations concerning the ESOP were conducted in all units while the initial agreements were negotiated in the newly organized units. Impasse on ESOP was eventually reached in all units, and impasse was also reached in general on the new agreements. Client unilaterally implemented final proposal with ESOP at impasse and successfully defended against union's unfair labor practice charges alleging refusal to bargain in good faith because, the union argued, our client had implemented prematurely before reaching impasse in all units. No agreement was ever reached in the two newly organized units.
• Engaged by union employer that manufactured phosphate-based fertilizer and was confronted with a "perfect storm." Below-market phosphate supply agreement was expiring, environmentally-grandfathered storage facilities for toxic gypsum byproduct of manufacturing process at capacity and cost of meeting current environmental standards for disposal of gypsum was prohibitive. Continuing with the same business not feasible, and client decided to make significant capital expenditure in order to change manufacturing process and produce non-phosphate-based fertilizers. The new process required only two-thirds of existing workforce, and client wanted to handpick employees who would remain, but expiring collective bargaining agreement with United Steelworkers had seniority provision that governed layoffs. Contract renewal negotiations provided very short window to negotiate desired change in seniority to permit selection and training of workforce for new manufacturing process and to avoid business-threatening losses during transition. As principal spokesperson, guided employer through bargaining to unilateral implementation of revised seniority obligations at impasse. Also successfully defended against the Steelworkers' unfair labor practice charges alleging bad faith bargaining, which would have upset the unilateral implementation.

• Client had widely publicized explosion that hospitalized four employees near death. Our immediate investigation onsite into cause of explosion prepared employer for Occupational Safety and Health Administration (OSHA) investigation and its ability to present a credible case to compliance officers that explosion was result of employee misconduct by failing to follow standard operating procedures. No citations directly related to explosion issued by OSHA, and a modest informal settlement resolved several minor citations unrelated to the explosion.
• Client, a surface mine, terminated an employee for attendance problems. The employee first challenged his termination under a just cause discipline provision in his collective bargaining agreement in which he merely argued that the attendance issues did not rise to the level of just cause to support termination. After the arbitration award upholding the discharge, the employee filed a retaliation complaint with MSHA claiming the termination was retaliation for his conferring with two Mine Safety and Health Administration (MSHA) compliance officers who had conducted an inspection of the surface mine a few weeks before he was terminated. A hearing of several days resulted in a decision upholding the discharge as not retaliatory.
• Client operated more than 60 convenience stores in urban metropolitan area. In one of those locations there was an armed robbery in which an employee was shot and killed and another was wounded. OSHA presented the employer with a proposed general duty clause citation with a number of proposed operational changes to reduce employee exposure to armed robberies, including several that changed the employer's recognized brand that was integral to its success. OSHA also announced that it would issue a press release simultaneously with the issuance of a citation if the matter was not resolved within a few days to put pressure on the employer to accept the operational changes that OSHA proposed. Our client challenged OSHA's ability to prevail on its proposed general duty clause citation and negotiated a resolution that eliminated the offensive operational changes. No citation was ever issued.

• Local 1104, CWA v. NLRB: Established principle that a union could not use an agency fee union security provision to deny membership to an employee and then insist on payment of agency fee. Union denied the strikebreaking employee membership, insisted on payment of agency fee and then demanded termination of employee when he refused to pay agency fee. The U.S. Court of Appeals for the Second Circuit held it was unlawful for a union to seek termination of employees in such circumstances, resolving an issue specifically left open by the U.S. Supreme Court when it upheld the legality of agency fees in right-to-work states.
• Capital Cleaning Contractors, Inc. v. NLRB: NLRB found our client to be a successor to employer displaced in competitive bid and, therefore, to have violated the law when it refused to recognize and bargain with union that represented displaced employer's employees. As a remedy, the NLRB ordered our client to adopt the terms and conditions of employment of the displaced employer from the inception of the displacement. We argued the NLRB's order was punitive, not remedial as required, because had our client recognized the union initially it would have negotiated reductions to those terms and conditions long before the period covered by the NLRB's order, which included several years of litigation. The U.S. Court of Appeals for the District of Columbia Circuit agreed and vacated the NLRB's order.
• Lumex, Inc. v. Highsmith: Cybex (a division of Lumex) was a competitor of Life Fitness in the physical fitness equipment market. Cybex was generally regarded as first in strength training equipment, while Life Fitness had that honor with respect to cardiovascular training equipment. Life Fitness hired away Cybex' worldwide marketing manager who had a noncompete restriction in his employment agreement. Life Fitness argued it was going to employ Cybex' manager in noncompetitive work with its cardiovascular equipment during noncompete period. Cybex maintained that nature of information to which marketing manager was privy made it impossible for his employment by Life Fitness not to result in the disclosure of its trade secrets, and the U.S. District Court for the Eastern District of New York agreed and enjoined the manager from working for or disclosing trade secrets to Life Fitness during the noncompete period. The court found, as Cybex argued, that the marketing manager's employment by Life Fitness would inevitably lead to disclosure of trade secrets and other competitive information.
• Boyle v. Cybex International, Inc.: Cybex terminated its president for, among other reasons, insubordination in pursuing product goals that the board of directors had rejected. The president challenged his termination as a subterfuge to avoid the vesting of his stock options and sought recovery of his salary through the end of his contract. Following a bench trial, the U.S. District Court for the Eastern District of New York dismissed the plaintiff's complaint, finding that he had been terminated for cause in accordance with his agreement.
• Doe v. XYZ Company (private arbitration): Client's lead salesperson in key market was terminated for unethical behavior. Termination was accompanied by brief statement made to customers to assure that Company was not exiting market and to coworkers to assure that Company's action against a senior employee was not arbitrary. The communication simply stated the termination was due to "unethical behavior" without any details because of concern the details exposed the Company to liability to its customers. Employee sued for defamation seeking jury trial. Company successfully moved to compel arbitration under employee's employment/sales agreement. Company then defeated defamation claim in two-week arbitration hearing, defending its terse communication both on the grounds that it was true, even if without details, and as having been made in good faith with limited publication to only those with a need to know, and, therefore, subject to a qualified privilege should the absence of details be found to make the communication untruthful. The arbitrator ruled the communication was truthful and dismissed the claim.
• Brodmerkel v. James McCullagh Co., Inc.: Employee's whistleblower claim dismissed for discovery abuse. New counsel for employee successfully restored case to trial calendar over objection of our client. The New York Appellate Division, Second Department, reversed the trial court's granting of the new counsel's application for reinstatement of the whistleblower action to the calendar.
• Figueroa v. Permanent Mission of Sweden to the United Nations: Ambassador's driver sued, claiming he was victim of national origin, race and disability discrimination and retaliation. He alleged he was given a purportedly dangerous work assignment that caused an unwitnessed accident as well as physical and mental injuries that made him totally and permanently disabled and unable to work. The U.S. District Court for the Southern District of New York dismissed all claims of discrimination on motion to dismiss because such claims were not within commercial activity exception to Foreign Sovereign Immunities Act. In remaining bench trial solely on driver's personal injury claims (there is no workers' compensation for foreign sovereigns in New York), court decided that plaintiff failed to prove alleged unwitnessed accident occurred, finding that he lacked credibility; that there was no negligence by Mission in assigning or supervising the work; that the plaintiff failed to prove causation between the plaintiff's physical and mental condition and the alleged accident; and that the plaintiff's own unsafe practices led to his injuries if in fact there were an accident, dismissing the plaintiff's defense of inherent compulsion.