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In This Issue

1. NEW NLRB REPRESENTATION CASE PROCEDURES
   
   
2. NLRB RIGHTS NOTICE POSTING ON HOLD
   
   
3. ORGANIZING
   
   
4. STRIKES & LABOR DISPUTES
   
   
5. MAJOR CONTRACT SETTLEMENTS & NEGOTIATIONS
   
   
6. ADMINISTRATIVE, COURT & OTHER DECISIONS
   
   
7. LEGISLATION & POLITICS
   
   
8. CRIME, CORRUPTION & OTHER VIOLATIONS
   
   
9. MISCELLANEOUS
   
   
10. UPCOMING EVENTS
    
    
11. RECENT PUBLICATIONS

1. NEW NLRB REPRESENTATION CASE PROCEDURES

• The National Labor Relations Board (“NLRB” or “Board”) Acting General Counsel, Lafe Solomon, issued a guidance memo outlining in detail how Regional offices will implement new representation case procedures that took effect on April 30. The guidance covers the entire representation case process from beginning to end, incorporating the new rules and the procedures that remain unchanged. Click here to view the General Counsel’s guidance memo. The General Counsel’s office also issued a set of Frequently Asked Questions explaining the Board’s revised rules and the procedures that will be followed by regions in implementing those rules.

• The guidance set specific standards to expedite processing of representation cases, directing Regional offices to set hearings seven to 10 days after the filing of a petition. The memorandum also includes a discussion of issues that must be identified in pre-election proceedings, the effect of presumptions under case law, the deferral of some issues to post-election review proceedings, and the rights and obligations of parties to present evidence on particular arguments and contentions. Click here to view our recent client briefing regarding the guidance memorandum.

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2. NLRB RIGHTS NOTICE POSTING ON HOLD

• The United District Court for the District of South Carolina held that the NLRB lacked statutory authority to promulgate its regulation requiring private employers to post a notice of employee rights under the National Labor Relations Act (“NLRA” or the “Act”). Chamber of Commerce v. NLRB. Click here for our April 16 client briefing on that decision. The next day the U.S. Court of Appeals for the District of Columbia Circuit enjoined the NLRB notice posting requirement pending a ruling on the appeal of the cases challenging the Board’s authority to issue the posting rule. Nat’l Ass’n of Mfrs. v. NLRB. The NLRB issued a press release stating, “[i]n view of the DC Circuit’s order, and in light of the strong interest in the uniform implementation and administration of agency rules, regional offices will not implement the rule pending the resolution of the issues before the court.”

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3. ORGANIZING

• Truck drivers working for Toll Group at the Port of Los Angeles voted 45-16 for representation by International Brotherhood of Teamsters (“IBT”), Local 848. This was one of the first private section union elections held within the port trucking industry since it was deregulated in 1980. Most port truck drivers in the U.S. are classified as independent contractors and, therefore, do not have the right under federal labor law to seek union representation unlike the Toll Group truck drivers, who are classified as employees.

• AlliedBarton security guards at the University of Pennsylvania voted, 72-2, to join the Philadelphia Security Officers Union.

• Workers at Station Casino in Las Vegas signed a petition asking for a fair process so that they can make their own decision as to whether to unionize in a way that is free from “management interference, intimidation, bullying, or litigation.” Thirteen workers from Station Casino along with five UNITE HERE Local 226 union members have decided to fast, announcing they will give up food for seven days to draw attention to their organizing effort.

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4. STRIKES & LABOR DISPUTES

• UNITE HERE Local 54 and the Tropicana Casino and Resort in Atlantic City, New Jersey, are at odds after the casino declared contract negotiations were at an impasse. Negotiations started in August to renew agreements with 10 Atlantic City hotel casinos, and the union and eight out of 10 of those hotel casinos reached materially similar agreements. The Tropicana, however, proposed to withdraw from the defined benefit pension plan, replacing it with a defined contribution plan. In January, the Tropicana advised the union that its offer was final and has refused to return to the bargaining table since. After the Tropicana stopped making contributions to the pension fund, thousands of picketers marched outside the Tropicana, and the union has called for a boycott of the Tropicana. In response, at least ten groups have cancelled meetings/events that had been scheduled at the Tropicana.

• The Teamsters Local 371 called off a strike at two Nichols Aluminum plants located in Davenport, Iowa, and made an unconditional offer to return to work. The Teamsters struck Nichols Aluminum in January 2012, when contract negotiations reached impasse. On April 4, the company converted over 100 temporary workers it had hired during the strike to permanent employees.

• Workers represented by the United Steelworkers at Tesoro Corporation’s refinery in Wilmington, California voted to authorize a strike if negotiations with the company for a new agreement are unsuccessful.

• Eighty-six members of Teamsters Local 175 ended a brief strike and returned to work at two Coca-Cola Bottling Company Consolidated operations in West Virginia, after the company agreed to abide by a decision issued by a third-party grievance panel concerning certain work requirements.

• Members of the International Association of Machinists struck Lockheed Martin’s Forth Worth, Texas plant, after rejecting the company’s last, best, and final contract offer. The union is fighting the company’s proposal to eliminate its defined benefit pension plan for new hires and reduce its health care plan options.

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5. MAJOR CONTRACT SETTLEMENTS &
   NEGOTIATIONS

• Members of the Communication Workers of America gave the union authorization to strike if collective bargaining contracts cannot be reached with AT&T, Inc. Since the end of February, CWA and AT&T have been negotiating labor contracts scheduled to expire in April. The agreements cover 40,000 workers at AT&T Midwest, AT&T West, AT&T Northeast, and AT&T Legacy wireline operations.

• Teamster represented employees at Republic Services Inc.’s Mobile, Alabama facility went on strike in March, when the parties appeared to be at an impasse in contract negotiations. The Teamsters also initiated a series of sympathy strikes involving hundreds workers at Republic’s Seattle, Buffalo, and Columbus facilities. The union ended the strike on March 30, when Republic agreed to meet with the IBT, and on April 1 the membership unanimously ratified a new contract providing across-the-board wage increases, including a 1 percent wage increase retroactive to April 1, 2011, 2 percent wage increases effective April 1, 2012, and 2 percent increases effective April 1, 2013. Workers also will receive a ratification bonus of some $1,500 and a reduction in health care insurance premium costs, from between 35 to 40 percent of the costs of premiums down to 25 percent.

• Members of the United Food and Commercial Workers Local 400 and 27 ratified contracts with Giant Food LLC and Safeway Inc. Local 400 represents 10,000 Giant workers and 5,000 Safeway workers in the Washington D.C. area. Local 27 represents 5,000 Giant workers and 3,000 Safeway workers in the Baltimore area. The contracts are effective for 19-month terms due to the uncertainty around the implementation of the Patient Protection and Affordable Care Act. The contracts provide for wages increases of 20 to 45 cents per hour and maintain full funding of health benefits with no increase to members’ out-of-pocket costs.

• Members of CWA District 6 ratified a four-year labor agreement with AT&T Mobility covering 8,800 wireless workers in Arkansas, Kansas, Missouri, Oklahoma, and Texas. Key terms include a 9.25 percent increase in wages over term, a return of 2,000 jobs from U.S. and overseas vendors, and voluntary bridging rights to transfer jobs between the traditional wireline part of AT&T and the wireless business with full seniority and benefits.

• United Steelworker members ratified three identical 52.5 month collective bargaining agreements with Republic Steel, N&T Railway Company, and Republic Canadian Drawn, Inc. The agreements cover 1,800 workers in Canton, Lorain, and Massillon, Ohio; Gary, Indiana; Lackawanna, New York; and Hamilton, Ontario. With the labor agreements settled, Republic Steel plans to proceed with an $87 million capital investment in a new electric arc furnace at its Lorain, Ohio facility. The agreements include, among other terms, providing employees: a $1,000 lump-sum payment within 60 days of ratification, followed by a $1,500 lump-sum payment on the first pay period after Aug. 16, 2012; a 2 percent across-the-board wage increase in 2013, followed by increases of 2.5 percent in 2014 and 2015; a layoff income fund, established in the 2007 contract to provide a weekly income to employees who are laid off, will be increased by $1 million over the term of the contract, with a total of a $3.5 million contribution by Republic; and, the company’s contribution to a Voluntary Employee Beneficiary Association to pay for retiree health care and death benefits will be reduced by 2 million per year.

• Members of the National Union of Healthcare Workers ratified its first contract with Santa Rosa Memorial Hospital in Santa Rosa, California. The three year contract covers 700 technical, service, and maintenance workers. Key terms include: wage increases of 7 percent over the term, maintenance of existing clinical ladders for certain classifications and a review of clinical ladders for other classifications, a reduction of standby pay from 50 to 30 percent of base pay, a labor-management committee that will address patient safety issues and workers’ health and safety issues, and a broad management rights clause.

• Members of the Service Employees International Union (“SEIU”) Local 1 approved a three-year labor agreement covering 7,000 janitors employed by various building services contractors employed at suburban and downtown Chicago office buildings. Wages for downtown janitors will increase 15 cents per hour and 45 cents in the second and third years of the agreement. Wages for suburban janitors will increase 10 cents per hour and 30 cents in the second and third years of the agreement.

• Members of the Association of Flight Attendants ratified a new five-year contract with Hawaiian Airlines covering 1,350 workers. Key terms include providing annual increases in hourly rates ranging from 5 percent in the first year to 2 percent in the final year, increases in the per diem rates, and renewed bonus compensation provisions. The contract also reduces insurance premiums for flight attendants who work a low number of hours. The union agreed to reduce the minimum crew size on certain wide body aircrafts by one.

• US Airways Group, Inc. reached a tentative agreement with unions representing different bargaining units of American Airlines employees, in an effort to facilitate a merger between the two carriers. American Airlines is in Chapter 11 and has not reached an agreement with its top three unions (Allied Pilots Association, the Association of Professional Flight Attendants, and the Transportation Workers Union of America) on concessions the company is demanding.

• Members of the Brotherhood of Maintenance of Way Employees, a division of the Teamsters, ratified a six year agreement with freight railroads. The agreement covers 25,000 workers and expands reimbursement for expenses incurred by employees when travelling away from home, increases wages 18.6 percent over the term, provides a 1 percent lump-sum ratification payment, and includes a new system of health care deductibles and increased copayments for employees.

• Members of the USW ratified three-year local contracts with a majority of the U.S. oil refineries covering 30,000 refinery workers. The USW national oil bargaining policy committee approved a pattern agreement in January that set the minimum standards for wages, benefits, health, safety, and working conditions. The lead company in the negotiations was Shell Oil Co. USW locals then ratified contracts that followed the pattern agreement. Under the pattern agreement, employees will receive 8.5 percent wage increases over the contract term and will continue current health insurance premiums equal to 20 percent of the total cost.

• BNA reported that its analysis of data compiled through April 16 for major collective bargaining settlements showed an average first-year wage increase of 1.6 percent, compared with 1.5 percent in the comparable period from last year. The analysis also showed that the median first-year wage increase for settlements was 1.8 percent, compared with 1.5 percent for the comparable period last year.

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6. ADMINISTRATIVE, COURT & OTHER DECISIONS

• The NLRB found that the United Healthcare Workers West unlawfully enforced the union-security clause of its contract with Lakewood Regional Medical Center by causing the medical center to terminate an employee without first discharging the union’s fiduciary duties. The employee, a former union steward, began remitting dues payments to the union. After several correspondences between the union and employee, the union directed the medical center to terminate the employee. The NLRB found that the union did not fulfill its fiduciary duty to deal fairly with the employee before seeking to terminate him. According to the standards set in Philadelphia Sheraton Corp., before seeking the employee’s termination, the union must provide an employee with a precise amount of dues owed, the time period in question, the method of computation and a reasonable opportunity to meet the dues obligation. The NLRB ordered the union to rescind its request for the employee’s termination, make the employee whole for any loss of pay and benefits since his discharge, and post and send out a notice telling members that it violated the law. Service Employees Int’l Union, United Healthcare Workers West (Lakewood Reg’l Med. Ctr.).

• The U.S. Court of Appeals for the Seventh Circuit upheld a jury verdict in favor of an administrative assistant who alleged that IBEW Local 159 retaliated against her for assisting an African American union member with his race discrimination claim. The African American union member filed a claim against the union with the Madison Equal Opportunities Commission (“MEOC”). The administrative assistant, who worked for the union, raised the issue with her supervisor and responded to a questionnaire from the MEOC. Her supervisor then took away job duties, denied overtime, and disciplined her for minor infractions. She brought a Title VII and Section 1981 claim against the union. At trial, the district court allowed the administrative assistant to submit the union member’s MEOC complaint. Blue v. International Brotherhood of Elec. Works Local Union 159.

• The NLRB upheld an Administrative Law Judge’s (“ALJ”) findings that Dish Network Corp. committed various unfair labor practices in a 2009 union organizing campaign. In doing so, Board member Sharon Block urged the Board in a concurring opinion to revisit a 1985 ruling in Tri-cast, Inc. 274 NLRB 377, that allows employers to tell workers that opting for union representation will cause them to forfeit their right to bring individual complaints directly to management. Dish Network Corp.

• The D.C. Circuit enforced an NLRB order that a property owner cannot bar employees of an onsite contractor from distributing union related handbills on the property unless the property owner can show that the exclusion is justified by a legitimate business reason. New York-New York LLC v. NLRB.

• The National Mediation Board (“NMB”) ruled that Pinnacle Airlines, Colgan Air, and the former Mesaba Aviation are operating as a single carrier for the purposes of employee representation. Pinnacle Corp., the parent company of Pinnacle Airlines, purchased Colgan in 2007 and Mesaba in 2010. Mesaba ceased operations and as part of Pinnacle’s restructuring plan after filing for bankruptcy, it plans to wind-down Colgan operations. The NMB reasoned that there was substantial integration of operations, financial control, and labor and personnel functions. The Association of Flight Attendants filed the application with the NMB seeking the decision.

• The D.C. Circuit upheld the NLRB’s ruling that a newspaper publisher illegally disciplined employees who engaged in protected concerted activity. When Koryn Nako, a union steward brought a nonemployee union official onto company premises, Nako’s supervisor escorted the official out and confronted him. Another union steward, Hunter Bishop, then became involved in the conversation, asking whether interviewing Nako could result in her being disciplined. The employer interviewed Nako outside of Bishop’s presence, issued Nako a warning and terminated Bishop for being disrespectful to a supervisory employee. The D.C. Circuit held that the discipline was illegal. In addition, it found that the employee did not forfeit his right to reinstatement by making critical public comments about the employer after his termination. The D.C. Circuit also upheld the NLRB’s findings that the employer violated the Act by interrogating and disciplining several other employees, and firing one, who participated in secretly recording a conversation with a supervisor. Stephens Media LLC v. NLRB.

• The NLRB issued a complaint against 24 Hour Fitness USA Inc. claiming that the company violated the Act by maintaining an arbitration policy that barred workers from pursuing class or collective actions. The complaint seeks an order requiring the company to cease and desist from maintaining and enforcing the arbitration policy. A hearing is scheduled for June 11. 24 Hour Fitness USA Inc. and Alton J. Sander.

• The SEIU filed a complaint with the International Labor Organization’s (“ILO”) Committee on Freedom of Association challenging Alabama’s immigration law (H.B. 56). The SEIU alleges that H.B. 56 is harmful to union’s ability to organize and thus a violation of ILO Conventions 87 and 98. In particular, the SEIU finds three provisions of H.B. 56 particularly harmful to unions and organizing: Section 11(a), which makes it a state crime for undocumented immigrants to apply for, solicit, or perform work; Section 13, which imposes penalties for concealing, harboring, shielding, or transporting undocumented immigrants; and Section 27, which prevents courts from enforcing contracts to which undocumented immigrants are parties. Although the United States has not ratified ILO Conventions 87 and 98, the SEIU argues that the Committee on Freedom of Association retains jurisdiction because the United States is an ILO member.

• The NLRB Associate General Counsel updated Regional offices on procedures they should follow in evaluating locations for rerun elections in light of the recent NLRB decision in 2 Sisters Food Group, Inc., 357 NLRB No. 168 (2011). In the decision, the NLRB set out factors that should be considered in deciding whether to hold a rerun election offsite: (1) the petitioner’s objection to having the election on the employer’s premises against the employer’s request that it be held there; (2) the nature and extent of the employer’s prior unlawful or allegedly-unlawful conduct; (3) the advantage available to the employer if the election is conducted on its premises; and (4) the proposed alternative sites.

Social Media ULP Cases

• An NLRB ALJ held that a posting to an anti-union Facebook page by an restaurant manager of contact information for a pro-union employee that urged others to text the employee constituted harassment and violated Section 8(a)(1) of the NLRA. However, the ALJ ruled that other disparaging remarks and pictures posted to the anti-union Facebook page by workers and managers regarding the pro-union current and former employees did not violate the Act. Miklin Enterprises Inc. d/b/a/ Jimmy John’s and Industrial Workers of the World.

• An NLRB ALJ held that a clothing store must reinstate three employees who were fired for Facebook posts where they criticized their manager and discussed bringing a California employee rights handbook to the store. The posts discussed closing the store earlier in the evening due to safety concerns since the store was located in an unsafe neighborhood. The store argued the decision to terminate the employees was based on the employees’ insubordination and personal use of store computers. The judge dismissed the store’s argument finding that the employees had been fired for engaging in protected concerted activity. Design Technology Group LLC d/b/a Bettie Page Clothing.

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7. LEGISLATION & POLITICS

• Maine Governor Paul LePage (R) signed legislation repealing the Agricultural Employees Labor Relations Act. That law was enacted 15 years ago as a result of workplace safety violations at Maine’s largest egg farm, the DeCoster Egg Farm. The law was written to target DeCoster and granted collective bargaining rights at farms with at least 500,000 laying birds and 100 workers. Employees never exercised the right to vote for unionization and the farm has now changed ownership.

• Michigan’s Governor Rick Snyder (R) signed a new law, S.B. 1018, changing the definition of a public sector employee to exclude anyone who receives a government subsidy for private employment. The law is designed to bar home-based caregivers from representation by public sector unions, particularly by the SEIU, that has been representing home health aids who care for individuals receiving Medicaid benefits.

• The AFL-CIO announced last fall it was creating a super Political Action Committee (“PAC”) in order to communicate with the general public about the 2012 federal elections. It created “Workers Voices” PAC that was designed to “build an independent voice for the working and middle class.” Workers Voices has raised approximately $5.4 million in the past two quarters and plans to activate and energize networks of working families through “cutting-edge technology and old-fashioned energy.” Among their plans, Working Voices will have a Web site where workers can connect with friends, families, and neighbors on Facebook, Twitter, and other social media sites. The Web site also allows workers to make their homes a phone bank through a “click to call” application. Working Voices will also look to 14,000 work sites represented by unions and equip work site coordinators with a “toolbox” to help them become effective organizers. Workers Voices also plans to have a voters registration and protection operation that will help communities of color, seniors, and students exercise their right to vote.

• The U.S. Senate voted, 45-54, not to proceed with the Congressional Review Act, a bill sponsored by Senator Mike Enzi, R-Wyo. The bill would have prevented the NLRB from implementing its changes to processing union representation petitions and holding elections.

• Todd Rokita, R-Ind., introduced the Rewarding Achievement and Incentivizing Successful Employees Act to the U.S. House of Representatives. The Act would allow employers to bypass union restrictions and give raises to individual employees above the salary level set by the union. According to Rokita, the Act is designed to provide companies with a tool to be competitive in the current globalized economy.

• Mayor Michael Bloomberg vetoed a New York City Council bill that required landlords and developers to pay prevailing wages for service workers in buildings in large economic development projects and buildings where the city leases are at least 10,000 square feet where the buildings receive tax abatements, rent, or other financial benefits from the city.

• California Governor Jerry Brown signed legislation that clarifies a law that took effect in January 2012 that prohibits state funding for construction projects in municipalities with ordinances that restrict the use of project labor restrictions. The legislation applies to Fresno, Oceanside, and Chula Vista.

• President Obama spoke at the AFL-CIO’s Building and Construction Trades Department’s annual conference in Washington, D.C. In his address, Obama vowed to protect union-favored policies promoting project labor agreements and prevailing wages under the Davis-Bacon Act.

• President Obama withdrew his nomination of Thomas M. Beck to be a member of the NMB. Beck is a member of the Federal Labor Relations Authority. A reason for the withdrawal was not given.

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8. CRIME, CORRUPTION & OTHER VIOLATIONS

• The Civil Services Employees Association (“CSEA”) must refund four union represented probation officers over $400 each for union dues withheld from their paychecks. The four officers filed suit against CSEA for improperly withholding union dues from their paychecks. The U.S. Court of Appeals for the Second Circuit ruled that CSEA illegally spent the officers’ dues money on organizing private sector workers in the developmental disability, food service, and courier industries, in violation of their First Amendment rights. Pursuant to the decision, the circuit court ordered CSEA to pay the four plaintiffs refunds. Scheffer v. CSEA.

• Prosecutors in New York are investigating the National Basketball Players Association (“NBPA”) and have issued a subpoena requesting information on the business activities of the union. The investigation stems from allegations by the NBPA president of nepotism by the executive director of the union as well as an internal audit.

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9. MISCELLANEOUS

• The United Auto Workers (“UAW”) membership increased by 4,107 in 2011, according to its LM-2 form filed with the Department of Labor’s Office of Labor Management Standards. The UAW reported that in 2011 it had 380,719 members, up from 376,612 members in 2010, which is the first increase in UAW membership since 2004. The increase is partly attributable to the rebound of the U.S. auto industry, with General Motors Co., Ford Motor Co., and Chrysler Group LLC increasing production capacity and workers.

• Mark Ayers the president of the AFL-CIO’s Building and Construction Trades Department (“BCTD”), died on April 8. Ayers was 63 years old. Ayers had served as president of the BCTD since September, 2007. BCTD’s Governing Board of Presidents unanimously elected Sean McGarvey to serve as the next president. McGarvey had been serving his second five-year term as BCTD’s secretary-treasurer.

• AFL-CIO President, Richard Trumka, criticized the excessive amount CEOs are getting paid and called on the U.S. Securities and Exchange Commission to carry out the Dodd-Frank Act’s requirement that public companies disclose CEO compensation along with the pay of average employees.

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10. UPCOMING EVENTS

• May 17, 2012
  Winston & Strawn will host an eLunch titled “Brinker, Kirby, Duran, Concepcion, and Dukes – What’s Next for Wage and Hour Class Actions – a Plaintiff’s and Defense Counsel Perspective” on Tuesday, May 17, 2012 at 12:15 p.m. (Central).
  eLunch

• June 21, 2012
  Winston & Strawn will host an eLunch titled “New SEC Rules on Executive Compensation Under the Dodd–Frank Act” on Thursday, June 21, 2012 at 12:15 p.m. (Central).
  eLunch

• July 19, 2012
  Winston & Strawn will host an eLunch titled “Wage and Hour Update” on Thursday, July 19, 2012 at 12:15 p.m. (Central).
  eLunch

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11. RECENT PUBLICATIONS

• California Supreme Court Rules No Attorneys’ Fees for Prevailing Party in Rest Break Cases
  Briefing

• NLRB General Counsel Issues Guidance Memorandum on Representation Rule Changes
  Briefing

• EEOC Releases Enforcement Guidance on Employers’ Use of Criminal Records
  Briefing

• EEOC Says Title VII Protects Transgender Workers
  Briefing

• DLSE (Again) Revises Its Previously Revised California Wage Theft Prevention Act Template & FAQs
  Briefing

• NLRB Posting Requirement on Hold Pending Appeal
  Briefing

• U.S. District Court in South Carolina Strikes Down the NLRB’s Notice Posting Rule
  Briefing

• Maryland Passes Legislation Banning Employers from Asking for Social Media Passwords
  Briefing

• California Supreme Court Provides Guidance to Employers on the Meaning of “Provide”
  Briefing

• President Signs the Jumpstart Our Business Startups Act
  Briefing

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If you have questions about items that appeared in this bulletin, or would like to learn more about any of these topics, please contact William Miossi at (202) 282-5708 or (312) 558-6109, or one of the other Labor & Employment Relations partners listed here:

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