Tim Mackey: Laborers fought physical machine testing – and won

Laborers Local 563 Business Manager Tim Mackey

On June 30, Laborers Local 563 won its federal court case to enforce an arbitration award that stopped an employer from using a physical machine test to screen members. The union believes that this type of test has nothing to do with the ability to do the work and may unfairly exclude people who have disabilities or past work injuries, women and older employees. The employer, Ramsey Excavating Company, imposed the test without giving the union notice or an opportunity to bargain.

The physical machine test used by the employer measures the strength of an isolated muscle group – such as one arm or one leg – at a constant rate of speed, and within a specific range of motion. The test does not, however, evaluate body mechanics, experience-based judgment or technique used to perform essential job functions.

In other words, the test does not measure whether an employee has what it takes to perform the practical skills of the job.

As soon as the union found out about the employer’s unilateral imposition of the physical machine test in early April 2013, Local 563 filed a grievance and an unfair labor practice charge with the National Labor Relations Board on behalf of all affected members. The union aggressively pursued the grievance and held a two-day arbitration hearing on May 5 and 6, 2014.

While arbitrating the grievance in early May 2014, Local 563 discovered that other employers had unilaterally imposed the same physical machine test. The union immediately filed grievances and unfair labor practice charges against those additional employers. In response, each of the employers agreed to stop using the test immediately and not to use it ever again unless a court ruled that the test is not discriminatory.

In addition, and with support from Local 563, a female member over the age of 40 who was denied work because of a physical machine test, filed civil rights charges on behalf of all affected employees regarding use of the test. The U.S. Equal Employment Opportunity Commission is currently investigating those class-wide discrimination charges, which have been filed against the employer, the testing company (Cost Reduction Technologies, LLC) and the test administrator (Minnesota Occupational Health).

On Nov. 18, 2014, the arbitrator decided the union’s grievance in favor of the union and against the employer. In particular, the arbitrator ordered the employer to stop using a physical machine test immediately. On Dec. 20, 2014, the arbitrator again sided with Local 563 by denying the employer’s petition to modify the arbitration award.

The employer then filed suit in federal court in an attempt to vacate the arbitration award. Local 563 countersued to enforce the arbitration award. After considering the submissions and argument of the employer and of the union, the federal court entered judgment in favor of Local 563 and enforced the arbitration award.

We will continue to stand strong against the use of physical machine tests in its bargaining units. If members of other unions have been subjected to a similar test, we encourage them to contact their business agent immediately to address the issue. Working together, we all can help to ensure that no one is unfairly denied work because of these tests.

– Tim Mackey is business manager of Local 563 of the Laborers International Union of North America (LIUNA). Local 563 members work in the construction industry across Minnesota and North Dakota. Learn more at http://www.local563.org.