20 Jan 2017

California: Union Activities and Employment

In Mason v. S.E.I.U. Local 721, 2016 Cal. Wrk. Comp. P.D. LEXIS 618 (Lexis Advance), the WCAB, reversing the WCJ in a split panel opinion, held that the applicant who worked for the County of Los Angeles, Department of Children and Family Services and was member of a S.E.I.U. Local 721 was acting as an employee of S.E.I.U. Local 721 at the time she suffered an injury to her left upper extremity, when the applicant’s injury occurred during her participation in a union rally on 12/10/2013.

(Citations link to LEXIS ADVANCE only.)

Relying on the holding in Jones v. W.C.A.B. (1971) 20 Cal. App. 3d 124, 97 Cal. Rptr. 554, 36 Cal. Comp. Cases 563, the WCAB panel majority concluded that Labor Code § 3357 was applicable to the applicant while she participated in the rally, and found employment based on the facts that the applicant was rendering service for “another,” specifically her union, during the rally. Furthermore, the union provided the applicant with transportation, food and water while at the rally, and that the services and goods provided by the union were akin to economic substitutes for wages offered in Jones and constituted compensation in exchange for services performed.

Commissioner Razo, dissenting, would not extend the ruling in Jones applicable to picketers, to the applicant here because, contrary to the worker in Jones, the applicant did not participate in the executive functions of a union, the applicant’s participation in the union rally was voluntary and not mandatory, the applicant would not have been penalized for failure to participate in the rally, and the applicant’s union was not on strike during rally.

Commentary:

The majority’s reliance on Jones in this case is interesting. As pointed out by the dissent, the alleged employee in Jones was not only a member, but a past president, shop steward and served on the executive board of the union. In Jones, the employee received clear financial benefits from his union participation and it was the union that assigned the picket duty. In Mason, a union member voluntarily attended a union rally where free food and water were provided.

The majority’s broad interpretation of what constitutes “employment” in this context may have adverse implications for membership groups, specifically unions, which organize rallies and other “group events” as a manner of getting their message out. Quite simply, if a union is going to have to purchase workers’ compensation insurance for every volunteer needed to put on an event, the cost of the event will become cost prohibitive.

Thus, while Ms. Mason may have been found to be an employee of SEIU local 721 as a result of her participation in this rally, the true impact of the panel’s decision in Mason may be that unions like Local 721 decide to no longer hold rallies. In the absence of rallies, the union’s voice may be lessened and, as a consequence, the union’s bargaining position may be weakened. In short, while Ms. Mason may have been determined to be entitled to workers’ compensation benefits, she may, in the long run, lose other valuable wage and employment benefits for which she was attending the rally.