Frederick D. Braid
Frederick D. Braid represents management in the practice of labor and employment law, and leads Holland & Knight's New York practice group. Mr. Braid represents employers in the private sector in all aspects of labor relations and employment law, including counseling and litigation with respect to union organizing activity; collective bargaining and contract administration, including project labor agreements; grievance and interest arbitration; acquisitions, closures, relocations, restructuring and bankruptcy; occupational safety and health; employment discrimination and affirmative action compliance; whistleblowing; employment-related torts, including defamation, negligent hiring and retention; Employee Retirement Income Security Act (ERISA)/Multi-Employer Pension Plan Amendments Act (MEPPA) withdrawal liability, employment at will, employment agreements, restrictive covenants, trade secret confidentiality; wage and hour compliance; personnel practices; and employment policies.
Mr. Braid represents employers in virtually every industry ranging in size from small, closely held businesses to multinational corporations and multiemployer associations, both nonunion employers and employers who have established collective bargaining relationships. Such representations include employers subject to the National Labor Relations Act (NLRA) and the Railway Labor Act.
Mr. Braid has published scholarly articles in journals for labor lawyers and is the original author on collective bargaining in the treatise, National Labor Relations Act: Law and Practice. He is also a contributing author to the American Bar Association's treatise, Occupational Safety and Health Law. Mr. Braid speaks on occasion to business groups, federal judges and at professional conferences.
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
- Our client, a nonunion marine transportation company, was headquartered in Baltimore and also had East Coast operations in the ports of Philadelphia, Norfolk, Charleston, Savannah, Jacksonville and Tampa Bay. It decided to expand into New York Harbor, a tough union port at the time, and wanted to maintain its nonunion status, which it considered one of the keys to its success. We were engaged to meet with and train management and first-line supervisors with respect to the union organizing activity that was naturally anticipated since our client represented an economic threat to its union competitors and their union employees. Our advice focused on both the client's legal obligations in running an aggressive and lawful resistance to organizing activity as well as the practical application of those principles in maintaining efficient nonunion operations while resisting unionization. Our client successfully expanded into New York Harbor, maintained its nonunion operation and has since expanded to the West Coast.
- Our client took over the operation of a sophisticated waste-to-energy facility from an operator who could not run it cost-effectively and efficiently any longer in its unionized environment where the employees had been represented for many years by the Operating Engineers. We advised our client regarding hiring and establishing initial terms of employment so that it began operations with a reduced workforce working under substantially reduced, more cost-effective and efficient conditions that avoided assumption of the union contract or its conditions, although it still had a bargaining obligation from its new starting point. In addition, we succeeded in having all of the union’s unfair labor practice charges dismissed, including those alleging discriminatory refusal to hire many employees and a refusal to bargain in good faith because of the implementation of new working conditions. After about a year of bargaining, a majority of the employees presented management with a petition requesting withdrawal of recognition, at which point management immediately ceased to recognize or bargain with the union. We succeeded in having the union’s new unfair labor practice charges related to the withdrawal of recognition dismissed, but the union was able to muster the 30 percent showing of interest necessary for a representation election. Our client won the election and then operated union-free.
- Our client lost a very close election to the United Steelworkers in a relatively small unit by one vote, and then commenced negotiations knowing that the outcome would be a 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, the Steelworkers withdrew as the close majority the Steelworkers had in the election dissipated when the employees recognized the employer's resolve and the realities it had pitched during the union organizing. As more employees joined the pro-company contingent, the Steelworkers realized they did not have the support necessary to exercise sufficient economic leverage to accomplish their negotiating objectives.
- Our client was a high-tech pelletizer facility that transported the city's bio solid waste to its plant for conversion to fertilizer pellets with its own nonunion employees in a heavily unionized market where all trucking was organized by the Teamsters. In advance of the plant's opening and in anticipation of the vulnerability of the drivers being organized and that possibly spreading to the remainder of the client's operation, the jobs of the drivers were structured to include duties of plant personnel who were in the intake process. This was done in order to provide an argument that drivers alone were not an appropriate unit because of their community of interest with at least the intake personnel, if not the entire plant. In three successive attempts by the Teamsters to organize the drivers, our client succeeded in prevailing on having the unit include the intake personnel, which always tipped the balance to our client in the election. The employer's success marked the first time in this market that trucking in the waste industry did not involve Teamster drivers and was done nonunion.
- Our client, a multiemployer association in the construction industry with 155 member employers, had been plagued for more than 40 years by featherbedding-like provisions in a collective bargaining agreement that added substantial costs and inefficiencies to construction 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 our client to seriously pursue the long overdue changes of conditions plaguing the industry. Holland & Knight acted as principal spokesperson in the bargaining and guided the client through to a lawful impasse, unilateral implementation of terms and conditions of employment eliminating the objectionable work practices, and successful defense of four rounds of unfair labor practice charges seeking to undo the unilateral implementation.
- Our 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 the midst of the negotiations in the new units, and while the other units were all midterm in their collective bargaining agreements, our client decided to implement an employee stock ownership plan (ESOP), a mandatory subject of bargaining. Implementation of the ESOP was only feasible on a companywide basis including all employees, union and nonunion. The obvious interest of the business owners to implement the ESOP raised a concern that the union would try to leverage that interest for serious concessions in the initial collective bargaining agreements in the new units by refusing to open negotiations in the units already under agreement. In our opinion, the existing collective bargaining agreements did not address the subject and, therefore, did not foreclose our client's raising the subject 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 the ESOP was eventually reached in all units, and impasse was also reached in general on the new agreements. Our client then unilaterally implemented its final proposal at impasse and then successfully defended against the union's unfair labor practice charges alleging a 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.
- Our client manufactured phosphate-based fertilizer and was confronted with a "perfect storm." Its 10-year phosphate supply agreement at significantly below current market prices was expiring, the environmentally-grandfathered storage facilities for the toxic gypsum byproduct of its manufacturing process were at capacity and the cost of meeting current environmental standards for disposal of the gypsum was prohibitive. Continuing with the same business was not feasible, and our client decided to make a significant capital expenditure in order to change its manufacturing process and produce non-phosphate-based fertilizers. The new process was going to require only two-thirds of the existing workforce, and our client wanted to handpick the employees who would remain, but its collective bargaining agreement with the United Steelworkers had a seniority provision that governed layoffs. The collective bargaining agreement was expiring at the time the phosphate contract was expiring and the gypsum disposal facilities were closing down. The employer knew it had a short window to accomplish its collective bargaining objectives, layoffs, training and start-up of the new manufacturing process in order to avoid business-threatening losses during the transition. As expected, the Steelworkers refused to change the seniority requirements and, aware of the time pressure on management, engaged in delay tactics designed to force the employer to yield on its seniority demands by preventing it from selecting and training its new workforce on a timely basis. Our client reached impasse, unilaterally implemented its final proposal modifying the seniority provision, and started the new process on time with its handpicked workforce, and successfully defended against the Steelworkers' unfair labor practice charges alleging bad faith bargaining.
- Our client had a widely publicized explosion that hospitalized four employees near death. Immediate investigation onsite into the cause of the explosion prepared the employer for its Occupational Safety and Health Administration (OSHA) investigation and its ability to present a credible case to the compliance officers that the explosion was the result of employee misconduct by failing to follow standard operating procedures. No citations directly related to the explosion issued from OSHA, and a modest informal settlement resolved several minor citations unrelated to the explosion.
- Our client, a surface mine, terminated an employee for attendance problems. The employee claimed the termination was retaliation for his conferring with two Mine Safety and Health Administration (MSHA) compliance officers who had conducted an investigation of the surface mine a few weeks before he was terminated. 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 losing his just cause challenge in arbitration, the employee then filed his retaliation complaint with MSHA. Following a hearing of several days, an MSHA administrative law judge upheld the employer's termination of the employee as being nondiscriminatory.
- Our client operated more than 60 convenience stores in an urban metropolitan area. In one of those locations there was a publicized holdup in which one of the employees was killed by a gunshot and another was wounded before the robbers fled. OSHA immediately investigated the incident and presented the employer with a proposed general duty clause citation with a number of proposed operational changes it sought to reduce employee exposure to armed robberies. Among the changes proposed by OSHA were 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 the employee by employer when the employee 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: The National Labor Relations Board (NLRB) found our client to be a successor to the employer it had displaced in a competitive bid and, therefore, to have violated the law when it refused to recognize and bargain with the union that had represented the 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 and continuing over several years until it negotiated changes to those working conditions. We argued that the NLRB's order was punitive, and 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: Our client, Cybex (a division of Lumex, Inc.), 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 the noncompete period. Cybex maintained that the nature of the information to which its 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): The Company's lead salesperson in a key market was terminated for unethical behavior. The termination was accompanied by a brief statement made to customers who dealt with the salesperson to assure them that the Company was not exiting that particular market and to coworkers to assure them that the Company's action against a senior employee was not arbitrary. The communication simply stated that the termination was due to "unethical behavior" without any details because of concern that the details exposed the Company to liability to its customers. The employee brought a multimillion-dollar lawsuit in federal district court for defamation seeking a jury trial. The district court granted the Company's motion to compel arbitration of the defamation claim under the arbitration provision in the employee's employment/sales agreement. The Company then defeated the defamation claim in a 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 the employee successfully restored the case to trial calendar over objection of our client. On appeal, the New York Appellate Division, Second Department, reversed the trial court's granting of the new counsel's application for reinstatement of whistleblower action against the employer to calendar following dismissal for discovery abuses.
- Doe v. Mission to the United Nations and Ministry for Foreign Affairs: A Puerto Rican who was employed by a foreign Mission to the United Nations as the ambassador's driver sued, claiming he was the victim of national origin, race, and disability discrimination and retaliation. The driver alleged that 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 a motion to dismiss because such claims did not fall within the commercial activity exception to the Foreign Sovereign Immunities Act. In the remaining bench trial solely on the driver's personal injury claims (there is no workers' compensation for foreign sovereigns in New York), the court decided that the plaintiff failed to prove the alleged unwitnessed accident occurred, finding that he lacked credibility; that there was no negligence on the part of the 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. The court's decision was a complete victory for the foreign sovereign on every aspect of the case.
- St. John's University School of Law, J.D., with highest honors
- New York University School of Law, LL.M., Labor Law
- St. John's University, College of Business Administration, B.S., Economics, with honors
- New York
- U.S. Supreme Court
- U.S. Court of Appeals for the Second Circuit
- U.S. Court of Appeals for the Fourth Circuit
- U.S. Court of Appeals for the District of Columbia Circuit
- U.S. District Court for the Eastern District of New York
- U.S. District Court for the Southern District of New York
- U.S. District Court for the Western District of New York
- U.S. District Court for the Eastern District of Michigan
- All State Courts in New York
- American Bar Association, Labor and Employment Law Section and its Committee on Occupational Safety and Health Law
- New York State Bar Association, Labor and Employment Law Section
- New York University School of Law's Center for Labor and Employment Law, Advisory Board Member
- St. John's University School of Law's Center for Labor and Employment Law, Board of Advisors
- The Best Lawyers in America guide, Employment Law - Management, Labor Law - Management, Litigation - Labor and Employment, 2003-2021
- Chambers USA - America's Leading Business Lawyers guide, Labor & Employment, 2009-2020
- Holland & Knight Pro Bono All-Star, 2020
- Guide to the World's Leading Labour and Employment Lawyers, Legal Media Group's Expert Guides, 2013-2015, 2019
- New York Super Lawyers magazine, 2007-2012, 2014-2020
- Corporate Counsel Edition, Super Lawyers magazine, November 2009
- Law Review, Managing Editor
- Who's Who in American Law
- Who's Who In America
- Who's Who of Emerging Leaders in America
- Martindale-Hubbell AV Preeminent Peer Review Rated