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In This Issue

1. ORGANIZING
   
   
2. STRIKES & LABOR DISPUTES
   
   
3. MAJOR CONTRACT SETTLEMENTS & NEGOTIATIONS
   
   
4. NLRB EXPEDITED ELECTION RULES STRUCK DOWN
   
   
5. ADMINISTRATIVE, COURT & OTHER DECISIONS
   
   
6. LEGISLATION & POLITICS
   
   
7. CRIME, CORRUPTION & OTHER MISDEEDS
   
   
8. MISCELLANEOUS
   
   
9. UPCOMING EVENTS
   
   
10. RECENT PUBLICATIONS

1. ORGANIZING

• The National Union of Healthcare Workers (NUHW) beat the incumbent union, Service Employees International Union-United Healthcare Workers West (SEIU-UHWW) in an election to represent employees at Children’s Hospital and Research Center in Oakland, Calif. The bargaining unit includes 376 employees including housekeepers, respiratory care workers, and licensed vocational nurses.

• The Teamsters and the United Auto Workers (UAW) announced plans to combine forces with Unite HERE Local 54 in an effort to unionize workers at Atlantic City’s newly opened Revel casino.

• SEIU-UHWW, which is California’s largest health care workers union, and the California Hospital Association (CHA) reached an agreement through which the union dropped two ballot measures aimed at hospital charity care and billing practices in exchange for the hospital association’s help organizing workers. Under the agreement, called the “Partnership for a Healthy California,” the two organizations said they will work together to “transform the landscape of health care in California.” While the organizations work on long-term changes to the health care system, CHA will facilitate meetings between SEIU-UHWW and top officials with hospitals or health systems that employ 100,000 workers not currently represented by a union.

• Economic analysts and labor leaders interviewed recently by BNA said that the steady decline of private sector unionization in recent decades reflects increased business competition, job losses in historically unionized industries, and employers’ proactive opposition to unions. Union supporters assert that aggressive anti-union tactics by employers coupled with weak enforcement of federal laws have thwarted efforts to organize workers. Yet, other analysts point to increased competition among businesses, both domestically and internationally, as well as a greater recognition on the part of both companies and workers of the potential economic penalties of having a union. The ongoing shift in the U.S. economy toward service-providing industries and away from goods-producing industries may also contribute to a lower unionization rate.

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2. STRIKES & LABOR DISPUTES

• The Canadian Senate passed back-to-work legislation to end a Teamsters Canada Rail Conference strike against Canada Pacific. The Canadian government’s bill provides for appointment of an arbitrator, who has 90 days to work with the company and the union to craft a compromise contract. In the meantime, freight operations, suspended due to the strike, were expected to resume within several days. The labor dispute centers on the company’s efforts to cut pension funding by 40 percent. After the 4,800 Teamster-represented employees went on strike on May 23, Canada Pacific laid off more than 2,000 non-striking staff no longer required due to the suspension of operations, and warned that another 1,400 faced layoffs if the strike was prolonged.

• Members of the International Association of Machinists (IAM) picketed outside the headquarters of Lockheed Martin Corp. in Bethesda, Md., supporting an ongoing strike against the company by 3,600 union members. Employees are striking at Lockheed’s fighter jet plant in Fort Worth, Texas, but the contract at issue also covers 170 workers from Naval Air Station Patuxent River in southern Maryland. Union members say they seek to prevent changes to health care and pension benefits, in the face of the company’s offer of more limited health care options and a higher deductible. Lockheed Martin reports that production at its facilities continues without interruption despite the strike.

• Members of Teamsters Local 580 in Lansing, Mich., continue to strike against the Red Cross. Teamsters went on strike on March 30 after the Red Cross sought to remove the right to bargain over health care and wages. The Teamsters have secured support from the City Council of Lansing, which passed a resolution calling on the Red Cross “to meet and bargain fairly with its employees and resolve this strike in an equitable manner that assists in protecting America’s blood supply and preserves workers’ rights to collectively bargain.” In addition to the Teamsters unit in Lansing, Teamsters in Cleveland, United Food and Commercial Workers Union members in Toledo, and Office and Professional Employees International Union members in Lansing are also on strike against the Red Cross.

• Members of Teamsters Local 1035 continue to strike at a Coca-Cola bottling plant in East Hartford, Conn. More than330 drivers and warehouse and bottling workers stopped work on May 16 after months of contract negotiations following the previous agreement’s expiration on December 31, 2011. According to the union, contract negotiations broke down over health benefits, pay raises, and job security.

• Automotive worker members of the International Chemical Workers Union Council Local 192-C continue to strike at a TRW Automotive facility in Auburn, N.Y. The workers went on strike on May 8 after the previous contract expired and union members rejected TRW’s proposed contract by a 124-13 vote. TRW’s proposals offered workers on 12-hour shifts a 50 cent raise and sought to restructure schedules from three 8-hour days to four 10-hour days and three 12-hour days, preventing workers from clocking overtime. After the strike began, the union and the company reached a tentative agreement which preserved the conditions the company proposed but offered workers drawing the 12-hour shifts a 65 cent raise; however, union workers voted to reject this offer.

• More than 800 IAM represented Caterpillar Inc. workers went on strike on May 1 at a plant in Joliet, Ill. , after rejecting the company’s latest contract offer. The facility is continuing production without disruption, utilizing the 1,200 employees not affected by the contract negotiations, as well as managerial employees, retirees, and replacement workers.

• Members of California Nurses Association/National Nurses United staged a one-day strike at eight northern California hospitals. The strike was the third such limited-duration action against the health system since September 2011. The union, which represents 4,500 registered nurses at Sutter Health Care facilities, is protesting proposed new terms that the union alleges would effectively force nurses to work when ill by eliminating sick pay (instead instituting short-term disability, increasing health care costs), and force many RNs to work in hospital units for which they do not have clinical expertise. Sutter argues that the union is seeking double-digit wage increases and free health care for life.

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3. MAJOR CONTRACT SETTLEMENTS &
   NEGOTIATIONS

• A BNA analysis of collective bargaining data for all settlements through May 28 showed an average first-year wage increase of 1.7 percent, compared with 1.4 percent in the comparable period of 2011. The median first-year wage increase for settlements reported to date in 2012 was 2 percent and the weighted average of 2.7 percent, compared with 1 percent and 0.8 percent, respectively, in 2011. When lump-sum payments were factored into wage calculations, the all-settlements average first-year increase to date in 2012 was 2 percent; the comparable period in 2011 reported a 1.7 percent increase.

• Members of the Service Employees International Union Healthcare (SEIU) Minnesota employed at eight hospitals in the Twin Cities metropolitan area ratified a new three-year contract that will increase their wages by 3 percent. The new contract, which is retroactive to March 1, includes no changes to the workers’ health insurance premiums, despite the hospitals’ efforts otherwise, and includes a third-year increase in workers pensions – the first pension increase for the workers in six years. The new contract covers approximately 3,500 hospital employees, including nursing assistants, emergency room technicians, maintenance and food service personnel, clerks, warehouse staff, and environmental services staff.

• The Air Line Pilots Association reached a tentative agreement with Delta Air Lines on a new three-year collective bargaining agreement covering over 12,000 pilots. If approved, the contract would provide for a 4 percent pay increase upon ratification, followed by an 8.5 percent jump in 2013 and 3 percent increases in both 2014 and 2015. In addition, the proposed contract would result in increased jobs and new opportunities for existing co-pilots to upgrade to pilot positions through expansion and restructuring of Delta’s fleet and a shift of flying from regional carriers to the mainline. Although the proposed contract would reduce the amount of pilots’ profit-sharing on the first $2.5 billion of profits to 10 percent from the current 15 percent, the plan would continue to pay 20 percent of profits on profits above $2.5 billion. Delta announced that it would begin taking delivery of new, leased aircraft as early as 2013, if the tentative agreement is ratified.

• Members of IAM Local S6 ratified a four-year contract with Bath Iron Works (owned by General Dynamics) in Bath, Maine. Under the new contract, workers will receive a $3,000 lump sum payment in lieu of a general wage increase, plus wage increases ranging from 7.5 percent to 8 percent over the contract term. The company will increase contributions to the union pension fund and workers will increase contributions to their health care premiums. The agreement covers 3,200 production and maintenance employees, including pipe fitters, welders, painters, electricians, mechanics, riggers, crane operators, and carpenters.

• Members of the National Nurses Organizing Committee-Florida, an affiliate of National Nurses United, ratified first contracts covering 3,100 registered nurses at 10 Florida hospitals owned by Hospital Corporation of America (HCA), the nation’s largest for-profit hospital chain. The contracts provide for a nurse-to-patient staffing committee, floating assignments guidelines, scheduling provisions, and a grievance procedure. The new contracts also introduce a wage scale with step increases and grades based on years of experience, and establish annual wage increases of 1.75 percent to 4 percent.

• Transport Workers Union (TWU) members in five of the seven separate TWU-represented work groups at American Airlines voted to accept the company’s final contract offer. Members of bargaining units representing fleet service clerks, dispatchers, ground school instructors, maintenance control technicians, and simulator technicians voted in favor of the offer, while aircraft mechanics and store clerks rejected the airline’s final offer. TWU will now seek bankruptcy court approval of the five approved successor contracts, while American will pursue its motion to reject the current agreements.

• Members of the IAM failed to authorize a strike by a two-thirds majority vote, and so a final contract proposal from United Launch Alliance (ULA) became effective despite union members’ earlier rejection of that proposal. The new agreement covers 860 workers working in ULA facilities in three states. Key terms include a $5,000 ratification bonus, as well as general wage increases totaling 8.5 percent over the three-year term. Previously, the IAM bargaining committee unanimously recommended rejection of the contract, objecting to the company’s proposal to switch new hires and rehires out of a defined pension plan to a 401(k) plan, as well as to increased employee costs for health care coverage. The ULA is a joint venture between Lockheed Martin and the Boeing Company.

• Members of Unite HERE Local 25 ratified a five and one-half year contract with the Hotel Association of Washington, D.C., covering 5,000 hotel employees at 18 hotels. The new contract provides for ratification bonuses, increases in hourly wages and pension funding, continues health care without employee premium contributions, and adds successorship language guaranteeing jobs and contract rights upon a change in hotel ownership or management. Additionally, the contract strengthens provisions concerning organizing neutrality and card check provisions.

• Members of Retail, Wholesale, and Department Store Union Local 3 ratified a five-year collective bargaining agreement with Bloomingdale’s Inc., a division of Macy’s Inc. The new contract covers wages and work rules for 2,000 employees at the company’s flagship store in New York City. The new terms provide for wage increases, enhanced benefits, and work rules that give employees more control over hours and scheduling.

• Members of SEIU-UHWW ratified a three-year labor agreement with Daughters of Charity Health Systems. The agreement, which covers 2,600 employees at six California hospitals, replaces an agreement that expired on April 30. The new contract provides 6 percent wage increases and implementation of a defined contribution pension plan.

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4. NLRB EXPEDITED ELECTION RULES STRUCK DOWN

• The U.S. District Court for the District of Columbia held that the recent changes to the National Labor relations Board's (NLRB or Board) representation case rules are invalid and unenforceable because the Board failed to assemble a quorum for its final vote of the changes. The changes, which went into effect on April 30, altered the procedures for holding representation elections. The U.S. Chamber of Commerce and the Coalition for a Democratic Workplace challenged the changes on several bases, asserting inter alia that they violate the National Labor Relations Act (NLRA), exceed the Board’s statutory authority, and are contrary to the First and Fifth Amendments. Although the court did not reach many of the challenges, it found that while two Board members used NLRB’s electronic case management system to cast final votes for the rule, a third member – Brian E. Hayes – did not vote of take any action. Although Member Hayes dissented when the rule was proposed, dissented again at a Board meeting at which the other two members voted to adopt a resolution for adoption of a truncated version of the original rule, and published a dissenting statement shortly before the rule changes went into effect, the court said that the final decision to adopt (or not adopt) a rule is what matters, and requires a quorum. Because the Board lacked the three-member quorum required for action, the changes to the representation case rules are invalid. Chamber of Commerce v. NLRB.

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5. ADMINISTRATIVE, COURT & OTHER DECISIONS

• A NLRB Administrative Law Judge (ALJ) held that a restaurant could not fire workers over posters falsely claiming its food is unsafe. After an unsuccessful campaign to unionize the Minneapolis franchise restaurants of the Jimmy John’s chain, the Industrial Workers of the World union instituted a second campaign that involved putting up posters stating erroneously that employees were not allowed to call in sick and implying that persons eating at the restaurants risked illness by doing so. Despite Supreme Court precedent allowing employers to dismiss workers for expressions of “disloyalty,” in this case the ALJ ordered backpay and reinstatement for dismissed union workers, calling the alleged falsity of the sick leave allegations “hyperbole.” Miklin Enterprises, Inc. d/b/a/ Jimmy John’s.

• The NLRB split 2-1 on the question of whether an employer’s unfair labor practices, that affected only a small group of employees, were extensive enough to require that an NLRB remedial notice be read aloud to the employee unit involved. The case stemmed from charges filed by Laborers Pacific Southwest Regional Organizing Coalition, Laborers’ International Union of North America, alleging that the company, a California landscaping firm, engaged in various unfair labor practices during and after a 2009 organizing campaign and union-won election. Two Board members agreed with an ALJ that the president of a company, which illegally laid off two union supporters and engaged in various other unfair labor practices affecting a unit of 15 employees, should be required to read the notice to employees (or to be present while a Board employee reads it). Former Board Member Terence F. Flynn dissented, on the basis that the Board had previously required notice readings only where employers’ “widespread violations actually affected numerous employees.” Jason Lopez’s Planet Earth Landscape Inc.

• The U.S. Court of Appeals for the Seventh Circuit enforced an NLRB order directing that strikers who resigned their employment in order to gain access to their 401(k) accounts did not abandon their jobs or forfeit their right to return to work when the strike ended. The dispute arose out of a 1997 unfair labor practice strike by members of United Steelworkers Local 2-779 employed at a Wisconsin metal fabricator. The Board found that the company violated the NLRA by denying or delaying the reinstatement of employees after the union made an unconditional offer to return to work. Several procedural complications later, the Seventh Circuit rejected the employer’s argument that several employees who resigned during the strike were not entitled to backpay, and that the Board erred in finding that the employees did not intend to permanently abandon their employment. Instead, the court found that the company failed to support its contention that employees could have obtained access to their 401(k) accounts without resigning. NLRB v. KSM Indus. Inc.

• An ALJ set aside the result of a union election among employees at a Target Corp. retail store in Valley Stream, N.Y., finding that Target committed unfair labor practices, and ordered a second election. The ALJ found that, during a 2011 organizing drive by United Food and Commercial Workers (UFCW) Local 1500, Target violated the NLRA by threatening and intimidating employees, maintaining unlawful rules in its employee handbook, and distributing leaflets threatening to close the store if the union successfully organized the employees. The employees then voted 137-95 to reject UFCW representation. The ALJ set aside the election results, ordered a new election, and directed Target to rescind the illegal rules and advise employees about the change in writing and by posted notice. Target Corp.

• A federal judge for the U.S. District Court for the Eastern District of Wisconsin ordered Piggly Wiggly Midwest LLC, a retail grocery company, to restore the full-time working hours of 19 union-represented employees, finding that the NLRB’s acting general counsel has a “better than negligible” chance of proving the employer unilaterally reduced the workers to part-time status in violation of the NLRA. The court rejected the company’s argument that it needed to cut employee hours because a competitor opened a nearby store, and held that the company lacked the statutory or contractual right to make the change without notice to UFCW Local 1473. The court found that an injunction under Section 10(j) of the NLRA was appropriate because reducing the employees to part-time status had jeopardized their eligibility for health insurance. Gottschalk v. Piggly Wiggly Midwest LLC.

• A divided NLRB invited amicus briefs addressing a long-running representation case in which Point Park University, a private institution, and the Newspaper Guild of Pittsburgh/Communications Workers of America Local 38061 dispute whether faculty members should be considered managerial employees outside of the protection of the NLRA. In 2003, the union filed a petition seeking to represent a unit of full-time faculty members at Point Park. The union eventually won a May 2004 election but Point Park refused to bargain in order to test the validity of the Board’s certification. The Board found that the refusal to bargain violated the NLRA but in 2006 the D.C. Circuit denied enforcement of the NLRB order and remanded for further Board action. The NLRB regional director then issued a supplemental decision reaffirming his original decision, concluding that Point Park had not met its burden of affirmatively establishing the faculty’s managerial status. Now reviewing that decision, the Board directed amicus briefs, due on July 6, to address various, specific questions regarding factors relevant to a finding of managerial status and related issues. Point Park Univ.

• In a 2-1 decision, the Board held that a group home operator whose employees voted for union representation in 2003 must bargain with a successor to the certified bargaining representative. The Board first found that Workers United, SEIU, was a successor to Unite HERE, which the group employees selected. The Board then rejected the employer’s argument that years of litigation and employee turnover rendered a bargaining order inappropriate, concluding that the employer failed to document employee turnover in the unit or to demonstrate any other defense that would excuse it from its duty to bargain. Although an ALJ found that the bargaining unit was larger now than in 2003, with estimates ranging from 180-234 employees, the Board said that such an expansion was not the kind of unusual circumstance it has found inconsistent with a bargaining order. Moreover, while courts have denied enforcement of bargaining orders in initial certification cases based in part on Board delay, the Board said that “those cases involved longer delays and aggravating circumstances not present here.” In dissent, Member Brian E. Hayes said that the “unusual circumstances of this prolonged litigation” made a bargaining order inappropriate. Independence Residences Inc.

• The Board held that an ALJ properly rejected private settlements that, in exchange for $47,000, required two illegally discharged employees to refrain from engaging in future union activity directed at their former employer. The employer, Goya Foods Inc., terminated the employees after they attended a union rally publicizing health-based grievances against Goya’s alleging unsanitary and unsafe working conditions. A 2006 Board decision sustained an ALJ’s finding that the discharges violated the NLRA, and ordered the company to offer the employees reinstatement and backpay. However, when the NLRB later investigated Goya’s compliance with that order, the company revealed earlier settlements with both employees, wherein each agreed not to apply for employment with Goya or to engage in union activity directed at Goya. The Board now held that its precedent prevented Goya from relying on such settlements in later Board proceedings, and said that the prohibition on future union activity was sufficient basis for setting the settlements aside. Members Richard F. Griffin and Sharon Block also agreed with the ALJ that the Goya settlements were invalid under the board’s long-standing test for evaluating private settlements, particularly in light of Goya’s “laundry list” of statutory violations. Member Brian E. Hayes found it unnecessary to rely on this alternative theory. Goya Foods Inc. d/b/a Goya Foods of Fla.

• A federal judge for the U.S. District Court for the Northern District of Illinois found that Cook-Illinois Corp., school bus company, failed to demonstrate that International Brotherhood of Teamsters (IBT) Local 777 engaged in a pattern of illegal extortionate activities during an organizing drive. The judge dismissed the RICO suit, which alleged that Local 777 engaged in an extortionate conspiracy in the guise of an organizing campaign and tortiously interfered with its business activities. The judge found that the company failed to state a viable RICO claim because a pattern of racketeering consists of at least two predicate acts that are indictable under various criminal laws; although the company asserted violations of the Hobbs Act, which criminalizes acts interfering with interstate commerce by extortion, the company failed to allege an affirmative act of inducement, as required under that act. The court also found that the union did not direct a pattern of extortionate conduct against the company. Cook-Illinois Corp. v. Teamsters Local No. 777.

• A federal bankruptcy judge denied Hostess Brands Inc.’s request to cancel all of its collective bargaining agreements with the IBT. Negotiations with IBT have been ongoing for months, focusing primarily on the company’s proposed cost-control measures involving work rules and health care and pension benefits for union-represented employees. In January, Hostess had filed a motion under Sections 1113 and 1114 of the bankruptcy code to reject 296 collective bargaining agreements with 141 locals of the Teamsters and 35 locals of the Bakery, Confectionery, Tobacco Workers, and Gran Millers (BCTWGM) union. The company also sought to modify any obligations it had to the unions to contribute to multiemployer pension plans. In February, members of the 141 IBT locals, representing 7,500 workers, voted to authorize a strike in the event the bankruptcy court granted the company’s motion to reject its collective bargaining agreements. The court previously granted Hostess’s motion to reject 79 unexpired labor contracts with BCTGM but granted the union’s motion to dismiss the company’s request to terminate 38 contracts that had already expired; the court now held that the company could reject 32 of the expired BCTGM contracts that had evergreen clauses. In re Hostess Brands Inc.

• The U.S. Court of Appeals for the D.C. Circuit vacated a decision holding Trump Plaza Hotel and Casino liable for failure to bargain with card dealers unionized under the AFL-CIO. The case stemmed from a 2007 union campaign to represent card dealers at several Atlantic City casinos, including Trump Plaza. Trump Plaza did not deny its refusal to bargain but argued that a rally held prior to the union certification election gave the impression that the government and the NLRB were in favor of unionization, and that this violated the NLRA’s requirement that the Board stay neutral. The court agreed – particularly in light of the substantial media coverage of the event – and ruled that Trump Plaza raised adequate concerns about the Board’s neutrality leading up to the representation election. As a result, it vacated the decision below and remanded to the Board for further review. Trump Plaza Associates v. NLRB.

• The U.S. Court of Appeals for the Second Circuit found that Starbucks Corp.’s rule prohibiting employees from wearing more than one pro-union button at a time was not an unfair labor practice. During a 2004-2007 campaign by the Industrial Workers of the World to organize wage employees at four Starbucks stores, the company responded with policies prohibiting employees from discussing the union or the terms of their employment, prohibiting them from posting union material on bulletin boards, preventing off-duty employees from entering a store’s back area, and discriminating against pro-union employees. Although Starbucks settled informally with the NLRB in 2006 over most infringements, the company challenged the NLRB’s criticism of its policy prohibiting employees from wearing more than one pro-union button. The Second Circuit now overturned the Board’s ruling that the company had committed unfair labor practices, agreeing with Starbucks that the NLRB’s rule allowing employees to wear an unlimited number of buttons would turn them into “personal message boards” and would erode the information on Starbucks-issued pins. Separately, the court approved the company’s decision to fire a pro-union employee with lackluster performance reviews, finding that there was strong evidence that the employee would have been fired regardless of his pro-union activity, but remanded for the Board to re-asses the termination of a pro-union employee fired after he used profanity in front of customers. NLRB v. Starbucks Corp.

• American Airlines filed suit in U.S. District Court for the Northern District of Texas seeking to overturn the National Mediation Board’s (NMB) decision to hold a representation election among the carrier’s passenger service employees. The complaint alleged that the NMB’s decision approving the Communication Workers of America’s application for the election violated amendments to the Railway Labor Act, passed by Congress in February, raising NMB’s showing-of-interest requirement for such votes to at least 50 percent of eligible workers in a craft or class in all cases. American claims that NMB rejected its request to reconsider its earlier decision, to seek the U.S. attorney general’s interpretation regarding the application of the new law, and to suspend the election while NMB considers the legal issues. American Airlines Inc. v. National Mediation Board.

• The Second Circuit ruled that the NLRA does not preempt six project labor agreements between New York City and the Building and Construction Trades Council of Greater New York and Vicinity, estimated to cover approximately $6 billion in city construction projects and 32,000 workers. The court applied U.S. Supreme Court precedent, known as Boston Harbor, to find that the city fell within the market participant exception to federal labor law preemption because it acted like a private proprietor and not a public regulator when it entered into the agreements at issue. The court rejected arguments to distinguish precedent from the case based on the agreements’ alleged “dramatic extracontractual effect” and the purported “political cronyism” motivating the city to establish the agreements. As a result, the court affirmed a district court’s dismissal of a suit challenging the agreements on the basis that they violated unions’ rights under the NLRA to freely bargain without government interference. Bldg. Indus. Elec. Contractors Ass’n v. New York.

• The U.S. Court of Appeals for the Fourth Circuit upheld the dismissal of a suit alleging that South Carolina Governor Nikki Haley made anti-union statements that launched a policy of enhanced regulatory scrutiny. The court found that the IAM and Aerospace Workers and the South Carolina branch of the AFL-CIO failed to show that Gov. Haley’s comments, praising the anti-union credentials of her labor department director nominee, violated the constitutional rights of any potential union organizers, and failed to sufficiently allege any regulatory action taken against the unions or their allies. The court also held that Gov. Haley’s comments could not be interpreted as containing an imminent threat of an adverse action that chills protected activity. International Association of Machinists and Aerospace Workers et al. v. Haley.

• The U.S. Court of Appeals for the Eleventh Circuit refused to reconsider its decision to reinstate a lawsuit accusing a dog track owner of supporting a local union by inviting it onto company grounds. The 2008 lawsuit accused both Mardi Gras Gaming and Unite HERE Local 355 of violating the Taft-Hartley Act by entering into an agreement by which the dog track provided the union with an organization space and a list of employee information, while agreeing to remain neutral to union activities. The suit asked the district court to decide whether an employer granting union access to its facilities for the purpose of organization constitutes a “thing of value,” the grant of which is prohibited by the Taft-Hartley Act’s bars on bribery, extortion, and other practices antithetical to union-employer neutrality. The district court dismissed the case but in January 2012 the Eleventh Circuit reversed that dismissal. Martin Mulhall v. Unite HERE Local 355 et al.

• A federal judge for the U.S. District Court for the Southern District of Illinois granted the NLRB’s request for a preliminary injunction to prevent Big Ridge Inc., a Peabody Energy Corp. subsidiary, from threatening employees who have supported the United Mine Workers of America with job loss and other reprisals. The court said that, without the injunction, the union would likely lose its ability to organize workers and represent employees by the time the NLRB makes a final decision on the employer’s conduct. The court also ordered reinstatement of a miner who was among the union’s most active supporters and was fired shortly after the union won bargaining rights in an NLRB election at Big Ridge’s Willow Lake coal mine in Equality, Ill. The NLRB is now considering the ALJ’s finding that the employee was fired because of his union activity, rather than because he threatened to kill a coworker, as the company argues. Harrell v. Big Ridge Inc.

• NLRB Associate General Counsel Anne Purcell issued a memorandum providing case handling instructions for Regional Offices handling immigration issues in unfair labor practice compliance proceedings. The memorandum follows a December 2011 ruling by the NLRB clarifying the burdens of parties attempting to explore or litigate employees’ immigration statuses in such proceedings. The memorandum directs NLRB regional directors to demand a “full accounting” of any immigration-related evidence that a respondent expects to offer in an NLRB proceeding. Additionally, it directs regional offices to oppose the improper use of subpoenas to harass employees, and in appropriate cases to consult the NLRB’s Division of Advice to determine whether an employer’s misuse of NLRB subpoenas was itself an unfair labor practice.

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6. LEGISLATION & POLITICS

• Maryland enacted a law prohibiting union representatives from being compelled to disclose any information received in confidence from an employee during a grievance. Signed by Maryland Gov. Martin O’Malley (D) on May 2, the legislation was spearheaded by UFCW Local 400. It applies to all Maryland-based unionized workers and makes a communication between a union or union representative and an employee privileged information, similar to that between an attorney and a client or a doctor and a patient. The legislation provides certain instances where the privileged information may or must be disclosed, such as if the union or agent believes disclosure is necessary to prevent certain death or substantial bodily harm. Maryland is the second state to adopt such legislation, following Illinois’ 2005-2006 legislative session’s adoption of a similar law.

• Five Democratic Congressmen from Illinois urged American Airlines to provide addresses of 9,400 passenger service agents to the NMB, in order to permit a “fair and timely” union representation election from May 15 through June 19. Representatives Jan Schakowsky, Bobby L. Rush, Daniel Lipinski, Jerry F. Costello, and Jesse L. Jackson, Jr., sent a letter to American Airlines President and Chief Executive Tom Horton, asking the airline to “respect [] employees’ right to vote on representation” by providing the addresses. The letter came 14 days after American Airlines filed a lawsuit in the U.S. District Court for the Northern District of Texas seeking to overturn the NMB’s decision to hold a representation election, arguing that the election violated a newly enacted law raising NMB’s showing-of-interest requirement for such votes to 50 percent of eligible workers in a craft or class.

• U.S. House of Representatives Education and the Workforce Committee Chairman John Kline (R-Minn.) sent a letter to the NLRB’s Acting General Counsel Lafe E. Solomon requesting documents related to his recent guidance to NLRB offices on the scheduling of pre-election hearings in union representation cases. Following the NLRB’s approval of a rule revising Board procedures for handling representation cases, but in advance of the rule changes going into effect, Solomon issued a guidance memorandum on procedures to be followed under the revised rules, including the directive that NLRB regional directors conduct pre-election hearings within seven days after issuing notice. Reading the guidance to impose a “requirement” for conducting hearings within seven days, Kline requested that Solomon supply the committee with documents and communications concerning the guidance memorandum, as well as NLRB records showing the agencies policies and practices on scheduling and postponing pre-election hearings.

• AFL-CIO President Richard Trumka announced that the Federation may deploy as many as 400,000 volunteers to help re-elect President Barack Obama. In March, the AFL-CIO unanimously endorsed Obama’s re-election as president. Labor unions spent a record $450 million in the 2008 election cycle.

• The AFL-CIO’s Building and Construction Trades Department (BCTD) endorsed President Barack Obama’s re-election bid. The endorsement came after a unanimous vote of BCTD’s governing board of presidents and was made in conjunction with its annual legislative conference. BCTD President Sean McGarvey told conference attendees that Mitt Romney has expressed his intention to eliminate project labor agreements and the Davis-Bacon Act, prevailing wage requirements on federal projects within his first days in office.

• NLRB Member Terence F. Flynn (R) submitted his resignation to President Barack Obama and NLRB Chairman Mark Gaston Pearce (D). Flynn recused himself effective immediately from “all NLRB activities,” although his resignation, dated May 25, becomes effective on July 24. Flynn also asked that President Obama withdraw his February 2011 nomination to the Board, which never received Senate action. Flynn joined the NLRB in 2003 as chief counsel to then-Member Peter C. Schaumber (R), who later served as Board chairman. After the Senate failed to act on Flynn’s eventual nomination to the Board, in January 2012, he received a recess appointment. However, Flynn came under criticism following a report from NLRB Inspector General David P. Berry alleging that Flynn violated federal ethics standards and NLRB policies before his recess appointment. Released April 30, the report found that, when serving as a Board lawyer, Flynn improperly gave then-former-chairman Schaumber drafts of board members’ decisions or dissents before the board actions were finalized and released to the public. In May, U.S. Representative George Miller (D-Calif.), ranking member of the House Education and the Workforce Committee, called on Flynn to resign.

• On June 19, the NMB will hold a day-long public hearing on a rule, proposed on May 15, to conform NMB regulations on the showing of interest requirements for unions seeking representation elections, runoff election procedures, and rulemaking proceedings to several Railway Labor Act amendments enacted in February 2012. The public hearing will be held from 9 a.m. to 4 p.m. at the NLRB’s Margaret A. Browning Hearing Room in Washington, D.C. A second day of hearings may be scheduled for June 20 if necessary. The Board is also currently accepting written public comment on the rule for a 60-day period following its publication.

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7. CRIME, CORRUPTION & OTHER MISDEEDS

• A federal judge in New Jersey sentenced James J. Kearney Jr., the former secretary-treasurer of the Bridge, Structural, Ornamental and Reinforcing Iron Workers Union Local 45, to 30 months in prison for stealing $561,366 from the union over a period of two years for his personal use. In November 2011, Kearney plead guilty to one count of embezzlement. The judge sentencing Kearney also ordered him to pay restitution of the full amount to the union, participate in alcohol treatment and gambling addiction programs, and serve three years of supervised release. United States v. Kearney.

• A jury in New York City found three former leaders of UFCW Local 368 guilty of racketeering and extortion. Former local presidents Anthony Fazio Sr. and Anthony Fazio Jr., along with former local vice president John Fazio Jr., were indicted in October 2011 on one count each of racketeering conspiracy, racketeering, extortion conspiracy, and unlawful receipt of labor payments conspiracy, in violation RICO and other federal laws. According to the charges, the schemes ran from 1989 through June 2011 and involved shaking down employers and a benefit fund administrator for illegal payments and running a money laundering scheme using false invoices. All three were convicted of running extortion and money laundering schemes to unlawfully take more than $1 million in shakedowns and purloined union funds. In addition, Anthony Fazio Sr. and John Fazio were convicted of money laundering conspiracy, and Anthony Fazio Sr. was convicted of witness tampering for attempting to persuade a witness to commit perjury before a grand jury.

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8. MISCELLANEOUS

• Delegates to the annual convention of the Coalition of Black Trade Unionists (CBTU) unanimously elected Terrence L. Melvin, secretary-treasurer of the New York State AFL-CIO, as president of the labor advocacy organization. Melvin succeeds Bill Lucy, who chose not to run for reelection after serving as president of the organization since its founding in 1972. A constituency group of the AFL-CIO, CBTU is dedicated to addressing the unique concerns of black workers and their communities.

• Delegates to the international convention of the SEIU reelected by acclamation SEIU President Mary Kay Henry, who ran unopposed. Delegates also reelected Eliseo Medina as international secretary treasurer. Earlier in the convention, Henry – who became the union’s first female president in 2010 – named President Barack Obama’s reelection as the union’s top priority. SEIU said it plans to draw on greater activism among its members, and will also work outside its ranks to expand commitment to common goals. 3,000 SEIU delegates and union leaders attended the convention, which focused on the theme that U.S. workers when united have the power to confront the financial “1 percent” of the country.

• Two smartphone applications (app) launched recently deal with labor unions and issues, but are targeted to different audiences. First, the UFCW released an app designed to connect consumers with unionized grocery stores across the country via a “shop union” feature. The app lets users receive updates from UFCW members, see breaking news and original videos, and access information from the union about how to take action for working families. Second, the Competitive Enterprise Institute and Workplacechoice.org released an app aimed at giving “citizen activists real-time information on labor union news and how their lawmakers have voted on labor legislation.”

• The AFL-CIO named Craig Becker, a former member of the NLRB, to serve as its co-general counsel, joining current General Counsel Lynn Rhinehart. Prior to serving on the Board, Becker had served as associate general counsel for the SEIU since 1990 and as AFL-CIO staff counsel since 2004. Becker’s recess appointment to the Board ended January 3, 2012.

• According to the SEIU Blog, “[t]oday, we are witnessing the growth of a number of visionary movements in the streets against income inequality, racial profiling, student debt, and a broken immigration system among other important battles. Much of the heat in the streets has been led by the first generation of Americans to come of age during the new millennium, also known as the Millennials.” The SEIU describes Millennials as being “by far the most ethnically diverse generation in American history as well as the most politically progressive,” observes that aspects of this generational shift “call into question fundamental assumptions about fairness and equality in U.S. democracy,” and uses this as a rallying call to “never forget that the tragic reality faced by today’s young workers and students is an example that this agenda has failed the vast majority of people and that in 2012 we need to begin dramatically changing course.” Toward this end, at its convention the SEIU hosted a two-day event called “Changing the World: the Millennial Way,” featuring organizers from the immigrant rights movement, Occupy Wall Street, and the Arab Spring, as well as members of 1199 Purple Gold, Google, and other organizations, in order to “explore innovative and effective new solutions to mounting problems facing America and the global community.”

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9. UPCOMING EVENTS

• 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

• August 16, 2012
  Winston & Strawn will host an eLunch titled "Employment Law Hot Topics" on Thursday, August 16, 2012 at 12:15 p.m. (Central).
  eLunch

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10. RECENT PUBLICATIONS

• National Labor Relations Board General Counsel Issues
  Third Report on Employer Social Media Policies
  Briefing

• Sixth Circuit Says the ADA Requires “But For” Causation
  Briefing

• Seventh Circuit Rules That Travel Before or After Unpaid Activities is Unpaid Under the FLSA
  Briefing

• District Court Invalidates NLRB Election Rules Changes Due to Lack of Participating Quorum
  Briefing

• Action Required by Plan Fiduciaries
  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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© 2012 Winston & Strawn LLP