John W. Polley focuses his practice on traditional labor law, OSHA litigation, and workplace drug testing.
Traditional Labor Law
John’s traditional labor law practice involves collective bargaining, arbitrations, NLRB proceedings, and advising employers in connection with union avoidance campaigns. He has advised employers in connection with them successfully opposing more than 90 union organizing campaigns from New Jersey to New Mexico. His labor relations experience includes acting as the principal negotiator for employers in industries as diverse as:
- Plating and manufacturing
- Energy generation and transmission, including gas, electric and nuclear
- Food processing and distribution
John's bargaining experience includes multiemployer bargaining, first-contract bargaining, and bargaining to impasse and permanently replacing economic strikers across a four-state region represented by seven locals of an international union. He also regularly bargains to renew expiring contracts for many clients.
In connection with bargaining, John has extensive experience counseling employers on strike preparation and planning, as well as seeking and obtaining state court injunctions of unlawful picketing. John also has extensive experience before the National Labor Relations Board. He litigates R-case and C-case hearings, and has appeared before the full Board in Washington, D.C., and in Region 18 (Minneapolis Regional Office and Des Moines Resident Office), Region 27 (Denver), Region 30 (Milwaukee), Region 13 (Chicago), Region 8 (Cleveland), Region 9 (Cincinnati), Region 22 (Newark) and Region 33 (Peoria).
John is one of only a few recognized defense experts in OSHA litigation in Minnesota. In fact, the Office of Minnesota Attorney General approved John’s retention by the Department of Corrections to defend the State's prison system against General Duty Clause citations involving a prisoner assault of a prison guard.
John's occupational safety and health practice includes the defense of complex proceedings before OSHA, including several death cases. His substantive OSHA litigation experience includes the successful defense of serious, willful and repeat citations for violations involving the following standards in both general industry and construction: lock-out/tag-out issues, guarding issues, confined spaces, fall protection, personal protective equipment issues, hazardous materials, and permissible exposure limits (PELs). He has represented clients in such matters in the following industries: steel foundries and fabrication, medical device, manufacturing, construction, trucking, paper, petroleum, retail and hospitality.
John frequently advises employers immediately after serious accidents and during complaint-based or administratively planned inspections. John's labor relations experience is often called upon in these cases because unions often file or instigate the filing of OSHA complaints and Minnesota OSHA typically requires a union's assent to any settlement between the agency and employer. John has also litigated injured employees' attempts to circumvent the exclusive-remedy provisions of the Minnesota Workers' Compensation Act.
Workplace Drug and Alcohol Testing
John was involved with workplace drug testing from the beginning and has extensive experience with drug and alcohol testing. He was hired by myriad business groups in 1987 to author the majority of the Minnesota Drug & Alcohol Testing in the Workplace Act (MN. Stat. § 181.950-957), which was the second state drug testing statute in the United States. In 1988 and 1989, he litigated the case that established the principle that pre-employment drug testing is not a mandatory subject of bargaining under the National Labor Relations Act.
John has written and helped implement private-sector drug testing policies for clients in all 50 states in compliance with dozens of state and local laws which are sometimes conflicting. He has also written and helped implement the federal testing regulations required by the Department of Transportation (DOT) policies under the Federal Motor Carrier Safety Administration's controlled substances and alcohol use and testing regulations (49 C.F.R. Part 382). John regularly advises clients on the interplay of these laws, including the preemptive effect of the federal testing regulations, and related matters such as collective bargaining and medical privacy issues.
John has regularly arbitrated cases for employers in a wide range of industries from transportation and manufacturing to education and symphony orchestra. He has also been a contributing author to How Arbitration Works and a contributing editor to The Developing Labor Law.
Some of John’s reported decisions include:
- Commissioner (Minnesota OSHA) v. W.B. Duluth Storage, LLC, 2012: grain elevator facility on Great Lakes is not subject to fall protection rules for employees working on rail cars, as entire facility is a “marine terminal” not subject to most federal-OSHA part 1910 “general industry” standards.
- Great River Energy v. IBEW Local 160, 2011: arbitration sustaining termination of lead lineman due to failure to communicate and possession of pornography in company truck
- Lehigh Cement Co., 2006: sustaining discharge for insubordination towards supervisor where employee was subject to Last Chance Agreement related to sexual harassment
- Clay Regional Water District, et al., 2006: establishing, in case of first impression, employers who may not levy taxes to pay for wage increases are not subject to the Iowa Public Employment Relations Act's interest arbitration procedures for resolving bargaining impasses
- Marathon Ashland Petroleum LLC v. Teamsters Local 120, 2002: affirming declaratory judgment that the successor employer, created by a joint venture between the predecessor and an unrelated corporate entity, is not obligated to arbitrate dispute concerning one million dollars in bonus payments when the dispute arose under predecessor's collective bargaining agreement
- Star Tribune, 1989: establishing rule that pre-employment drug testing is not a mandatory subject of bargaining under the National Labor Relations Act