- STRIKES & LABOR DISPUTES
- MAJOR CONTRACT SETTLEMENTS & NEGOTIATIONS
- ADMINISTRATIVE & COURT DECISIONS
- LEGISLATION & POLITICS
- UPCOMING EVENTS
- RECENT PUBLICATIONS
- Unions, including the United Food and Commercial Workers (UFCW), are attempting to organize about 9,000 ethnic grocery store or mercado workers from immigrant communities in the San Francisco Bay area. The workers are predominately recent immigrants from Latin America and Asia who “don’t get minimum wage and mandatory meal and rest breaks” according to an UFCW organizer.
- Fleet service workers at United Continental Holdings Inc. voted for representation by the International Association of Machinists (IAM) over the International Brotherhood of Teamsters (IBT). While 97% of workers voted for union representation, the split between IAM and IBT was 51.4% to 48.5%.
- Production and maintenance workers at EBI LLC, a furniture manufacturing plant, in Virginia voted against United Steelworkers representation.
- For the second time since 2009, JetBlue Airways pilots rejected representation by the Air Line Pilots Association.
- A group of 1,200 insurance agents from Allstate Insurance Inc. voted to affiliate with the Office and Professional Employees International Union. The affiliation provides the agents with all the benefits of union membership except collective bargaining agreements. The stated goal of the affiliation was to ensure agents are treated as independent contractors rather than employees to avoid subjection to: unachievable quotas, the fear of reduced compensation, or contract termination.
- Staff employees at the Children’s Hospital and Research Center in Oakland, California voted 163-159 for representation by the National Union of Healthcare Workers rather than incumbent union United Healthcare Workers-West. There were, however, three challenged votes causing the NLRB to have to investigate the challenges. Depending on the outcome of the NLRB’s eligibility determination of the challenged votes, the Board could order a runoff election.
- The NLRB ordered a re-run of an election among 43,000 Kaiser Permanente workers at 230 separate facilities in California following an administrative law judge’s (ALJ) finding that the union interfered with unit employees’ free and uncoerced choice in the election by widely disseminating warnings that Kaiser was likely to withhold wage increases and other benefits. In the fall of 2010, the employees had voted to remain with incumbent union SEIU-United Healthcare Workers-West (SEIU-UHW). The SEIU-UHW and Kaiser agreed to set aside the election and proceed to a second election.
- A number of unions, including the United Steelworkers, are working to organize Los Angeles area car washes. The United Steelworkers has successfully organized three car washes in Los Angeles through voluntary card-check agreements.
- STRIKES & LABOR DISPUTES
- After contract negotiations stalled between union workers and American Crystal Sugar Co., (ACS), ACS hired replacement workers and locked-out the 1,300 Bakery, Confectionary, Tobacco Workers, and Gran Millers Local 167G union members from its plants.
- The Teamsters voted to authorize a strike against Fred Meyer Stores Inc. after parties failed to agree on a new collective bargaining agreement. Meanwhile, other grocery industry employers in the Seattle-Tacoma area recently settled three-year agreements with the Teamsters that provide annual wage increases and the continuation of health and welfare benefits.
- Southern California United Food and Commercial Workers voted overwhelmingly to authorize a strike at Ralphs, Albertsons, and Safeway supermarkets if a new bargaining contract cannot be reached.
- Communications Workers of America and the International Brotherhood of Electrical Workers (IBEW) called off a two-week strike and returned to work at Verizon Communications Inc. while parties continue to negotiate over a new collective bargaining agreement. Strikers become eligible for strike benefits only after 15 days on strike, so they got nothing. The union and company additionally agreed to withdraw all pending unfair labor practice charges arising from the strike or collective bargaining before the strike ended.
- Steelworkers at Honeywell International Inc. will return to work after a one-year lockout following ratification of a new collective bargaining agreement. The reintegration of the 230 affected employees will occur over the course of several weeks as those employees are retrained and recertified. The new agreement provides no wage increases during the first year but will provide increases in the second and third year. It also includes adjustments in the overtime rules, providing the company greater flexibility for assigning and paying overtime.
- Over 200 Roquette America workers in Iowa expected to return to work in August after a 10-month lockout after voting to accept a four-year contract with the corn-milling company. The contract provides for four lump sum bonuses, no general wage increases and pay cuts for certain classifications, higher employee health care premiums, a reduction in sick leave, conversion of the company’s pension plan to a 401(k), and terms allowing the company to lay off workers out of seniority order.
- MAJOR CONTRACT SETTLEMENTS &
- The UFCW in the Ohio Valley rejected a collective bargaining proposal by Kroger Co. The principal point of contention is Kroger’s health care proposal. The union members gave union leaders authorization to call a strike if no acceptable contract offer is reached.
- CBS Corp. employees represented by the IBEW ratified a new 3.5 year contract, expiring Jan. 31, 2015. The contract covers 2,800 technicians in nine cities and provides a 7.5% wage increase. The contract also provides that employees will continue to have jurisdiction over work performed to the same extent they do now if the company should change its method of transmitting signals to be viewed from over the air to another method, such as fiber-optic cable; that a work-sharing agreement will be put in place to allow IBEW workers as well as Directors Guild of America workers to both perform work in connection with new control room automation systems; and that any technician laid off due to the installation and use of a control room automation system will receive double severance upon a release and waiver of recall rights.
- United Steelworker represented employees at Georgia-Pacific ratified a four-year master economic agreement covering 5,135 workers at 13 paper mill facilities nationwide. The new master economic agreement set national wage and benefit terms for workers while allowing for additional provisions for individual mills to be bargained at the local level. It further increased wages, continued to pay employee health care premiums, provided more dental plan options, and improved pension benefits including a $1 increase in the pension multiplier in the third and fourth years of the contract for employees participating in the benefit plan.
- Frontier Airlines and the Association of Flight Attendants-Communications Workers of America ratified an agreement that includes pay cuts in exchange for extending ownership stake in the company to roughly 1,000 covered flights attendants. The agreement would save the company about $16 million in labor costs over the four-year term of the deal.
- National Football League players approved a new 10-year labor contract lasting until the 2020 season and the 2021 draft. Players will get more days off, fewer full-contact practices, enhanced injury protection benefits, a reduction in the offseason program, and additional money for medical research, health care programs and NFL charities. The agreement also includes $900 million for players pensions and makes improvements to the benefits plans of retired players.
- The Teamsters ratified a national collective bargaining agreement with the National Automobile Transporters Labor Division covering 4,500 truck drivers and other workers in the carhaul industry. The agreement provides for an annual wage increase and 10% cost-of-living adjustment of up to 10 cents per hour per year, if inflation exceeds 3% in any time period. The agreement also provides that employees’ contributions toward health, welfare, and pension benefits will increase. The agreement expires Aug. 31, 2015.
- The IAM ratified a five-year contract with aircraft manufacturer Hawker Beechcraft Corp. in Kansas covering 2,600 production workers. The contract provides wage and pension increases while raising employee contributions toward health insurance premiums.
- United Steelworker represented employees at Allegheny Technologies Inc. ratified a four-year contract after rejecting an initial agreement primarily due to retired members concerns about health care premium increases. The new agreement extends retiree medical benefits to new hires, caps monthly insurance premiums, provides a signing bonus, and across-the-board wage increases.
- The IBEW and Arizona Public Service Co. reached a tentative agreement on a three-year contract. The agreement will provide for an increase in wages, per diem allowances for those working outside their normal geographic work areas, and the amount of paid leave that can be carried from one year to the next.
- Analysis of contract settlement data compiled by BNA for settlements reached during 2011 shows an average first-year wage increase of 1.4%, down from 1.6% in 2010. The median first-year wage increase for settlements in 2011 was also 1 percent compared to 1.5% in 2010, and the weighted average was 1.1% compared to 1.6% in 2010.
- ADMINISTRATIVE & COURT DECISIONS
- In affirming the denial of Pulte Homes Inc.’s petition for injunctive relief, the U.S. Court of Appeals for the Sixth Circuit ruled that Pulte failed to make “every reasonable effort” to settle the labor dispute before filing suit and thus failed to comply with Section 8 of the Norris-LaGuardia Act. The case arose after Pulte sought an injunction against the Laborer’ International Union to stop the union from bombarding the company with thousands of emails and phone calls. The circuit court noted that after Pulte sent a cease-and-desist letter to the union, it failed to specify a timeframe in which to respond, nor did it offer the union an opportunity to negotiate. Pulte Homes, Inc. v. Laborers’ Int’l Union of North America.
- The National Basketball Association filed suit against the players’ union and its members in the Southern District of New York alleging antitrust violations, and filed unfair labor practice charges with the National Labor Relations Board (NLRB) against the association. The league initiated the actions in an effort to preempt the union’s threats to disband and launch an antitrust suit challenging the legality of the lockout against players. Nat’l Basketball Ass’n v. Nat’l Basketball Players Ass’n.
- The U.S. Court of Appeals for the D.C. Circuit upheld a NLRB order for Kiewit Power Constructors Co. to reinstate 2 union-represented construction workers. The workers were fired after telling their superior that if they got laid off that things were going to get ugly and that he “better bring [his] boxing gloves” in response to being given a warning on their break practices. The NLRB concluded that the language was a figure of speech and not actual physical threats. Kiewit Power Constructors Co. v. NLRB.
- On remand from the U.S. Court of Appeals for the D.C. Circuit , the NLRB found that Guard Publishing Co. violated Section 8(a)(3) and (1) of the National Labor Relations Act (NLRA or Act) by disciplining a copy editor who used her company email to send union-related emails. The NLRB found that the company policy preventing personal email was not a violation of the NLRA, but that discriminatory enforcement of the policy was in violation of the Act. Guard Publ’g Co.
- The D.C. Circuit also affirmed a NLRB ruling that a New Jersey casino committed unfair labor practices when it fired a table dealer who used 20 minutes of FMLA time to attend a union rally. The employee was taking eight hours of FMLA leave to care for his daughter but during that time spent twenty minutes at a union rally. The NLRB found that the casino violated Section 8(a)(1) and (3) for firing the employee because it failed to show it would have taken the same action absent his union activity. Bally’s Park Place Inc. v. NLRB.
- A South Carolina federal district court dismissed claims against South Carolina Governor Nikki Haley after the International Association of Machinists and Aerospace Workers and the South Carolina branch of the AFL-CIO alleged that she made public comments to prevent workers from joining or organizing labor groups at Boeing’s manufacturing plant. The public comments came in a December 2010 speech nominating Catherine Templeton as director of the state’s Department of Labor and lauding her past efforts which included fighting unions. The court held that Governor Haley’s laudatory comments did not violate the NLRA or any constitutional rights of any potential union organizers. Int’l Ass’n of Machinists and Aerospace Workers, et al. v. Haley.
- The U.S. Court of Appeals for the Third Circuit affirmed a NLRB decision that a New Jersey hospital interfered with a group of nurses’ union representation votes. The ALJ had found that the hospital violated the NLRA by promoting a shared governance concept in pre-representation voting communications to nurses that were aimed to discourage employee support for unionization. NLRB v. Cmty. Med. Ctr.
- The NLRB upheld a 2007 ruling that Ampersand Publishing violated the NLRA, by firing eight newsroom employees, and disciplining and threatening others who participated in union activities, and ordered the publisher to rehire the fired employees. The NLRB determined that the employees were engaged in protected activity by seeking union representation and a collective bargaining agreement, and by protesting the discharges of co-workers. The NLRB rejected the publisher’s argument that it could fire the employees for disloyalty after their protest included urging passers-by to cancel their newspaper subscriptions. Ampersand Publishing LLC v. Graphics Communications Conference International Brotherhood of Teamsters and Robert Guiliano.
- The NLRB reversed an ALJ’s finding that a Florida condominium employee was illegally disciplined pursuant to an overbroad no-access rule. The NLRB determined that even though a rule may be illegally overbroad, it would not be unlawful for an employer to discipline an employee pursuant to the rule in situations in which an employee’s conduct is not similar to conduct protected by the NLRA. Continental Group Inc.
- A federal judge in Minnesota dismissed a case against U.S. Steel Corp. for violations of the WARN Act when it laid off 313 workers at an iron ore plant in Minnesota five days after notice was given to employees. The judge found that the plant fell within an exception for employers who attempt to comply with the law in good faith. United Steel Workers of America Local 2660 v. United States Steel Corp.
- The NLRB held that labor unions did not violate a federal labor law prohibition on secondary boycotts by displaying a large stationary banner against a neutral employer during a labor dispute with a construction company. The Board held that peaceful bannering did not constitute picketing or coercion even if customers or other unions interpreted the banners to be a form of picketing. Carpenters & Joiners of Am. Local 1827 (United Parcel Serv. Inc.).
- A federal district court in North Carolina refused to dismiss or transfer a U.S. Airways Inc.’s suit accusing the U.S. Airline Pilots Association of causing nationwide flight delays and cancelations in order to put pressure on the airline during labor negotiations. U.S. Airways’ filing follows the union’s ongoing lawsuit in New York alleging that the airline violated the Railway Labor Act by improperly docking pilot pay, refusing to schedule timely arbitration meetings, and refusing to resolve grievances. U.S. Airways Inc. v. U.S. Airline Pilots Ass’n.
- The NLRB set aside a Board election won by a Teamsters local because the union engaged in “objectionable conduct” by filing a wage-and-hour suit against employer Stericycle Inc. in the critical period after the petition and before the election. The Board noted that had the suit been filed before the election petition or if the union had merely educated employees concerning their rights as well as the union’s ability to refer employees to competent counsel without funding the litigation, the election would not have been set aside. Stericycle Inc.
- An NLRB ALJ ruled that Columbia Memorial, an upstate New York hospital, did not violate the NLRA by threatening to suspend and stopping workers from wearing “inflammatory” buttons during a contentious contract renegotiation. The ALJ determined such activity may have adverse effects on patients’ recovery even absent evidence that the feared effects have actually occurred. Here, the buttons could distress patients because they could confuse patients to think they were going to be denied health care. The hospital could not, however, stop a union member from wearing gear with more neutral pride messages. Columbia Memorial Hosp.
- The NLRB reversed and remanded an ALJ’s dismissal of an unfair labor practice complaint against Virginia Mason Hospital in Seattle because it had implemented a policy that required any non-influenza immunized nurses to wear face masks or take anti-viral medication. The hospital argued that the flu prevention policy went to the “core” purposes of the institution and so bargaining was not required by the NLRA. However, the Board disagreed and found that the policy “plainly affected” the working conditions of the union-represented nurses and would be a mandatory subject of bargaining under the NLRA. Virginia Mason Hosp.
- The NLRB overruled three major Board decisions regarding the immediate challenges to the representative status of a union. In Lamons Gasket Co., the Board overruling Dana Corp., held that in a case of voluntary recognition, a union will be protected from challenges for a period of six months to a year depending on the circumstances. In UGL-Unicco Service Co., the Board indicated that a union would be protected from challenges for six months if the new employer, in terms of a successorship, complies with the existing contract and for up to a year if the new employer employs new terms and working conditions on the company. In Specialty Healthcare, the Board held that when an employer argues that a proposed unit improperly excluded certain employees, the employer must prove that the excluded employees share “an overwhelming community of interest” with the employees in the proposed unit. Lamons Gasket Co., UGL-Unicco Service Co., and Specialty Healthcare and Rehabilitation Center of Mobile.
- The U.S. Court of Appeals for the Ninth Circuit affirmed an NLRB decision finding that three contractors did not act in bad faith when they refused to honor the results of an unilaterally-conducted card check by the union where the contractors reasonably interpreted the collective bargaining agreement to require the parties’ mutual agreement on card check procedures. However, the circuit court found it was bad faith, when a fourth contractor refused to honor the card check results, because the contractor “deliberately dodged” the union’s requests to conduct a card check. Int’l Union of Painter & Allied Trades v. J.R. Flooring Inc.
- The NLRB revived a worker’s petition to withdraw the authority of a newspaper publisher and union to require union membership as a condition of employment. The petition was revived even though the union-security clause did not require firing the employee for not complying. Los Angeles Times Commc'ns LLC.
- LEGISLATION & POLITICS
- The AFL-CIO will create a “Super PAC” in order to communicate with the general public for the 2012 political elections. The decision to create the Super PAC was in response to Citizens v. FEC, 130 S. Ct. 876 (2010) which struck down restrictions on direct campaign spending by corporations and unions. The Super PAC will continue to make endorsements of candidates but will also focus on a small set of priority races.
- The Employee Rights Act (S. 1507) aimed at providing protections for workers regarding their right to select or refrain from selecting representation by a labor organization was introduced August 2 in Congress. The bill would mandate secret ballot elections, among other things, to protect workers from coercion and harassment. While the ALF-CIO has opposed the bill, the U.S. Chamber of Commerce has not yet provided a formal position.
- AFL-CIO President Richard Trumka announced that union members and their allies will participate in over 450 events across the country to “hold politicians accountable.” The events will include meetings, fundraisers, and local events, where lawmakers appear, to demand action on jobs as well as to oppose cuts in Medicare and Social Security. Trumka also reiterated the AFL-CIO’s continued opposition to the free trade agreements with Korea, Columbia, and Panama.
- U.S. Department of Labor issued regulations concerning executive order number 13495, the Nondisplacement of Qualified Workers Under Service Contracts (Order). The Order mandates that when a service contract expires and a successor contract is awarded for the same or similar services at the same location, that the subsequent contract must include a clause requiring the new contractor and its subcontractors to offer a right-of-first-refusal to work to the old contract’s employees. The rule pertains to federal government service contracts or subcontracts of $150,000 or more. The rule will not take effect until the Federal Acquisition Regulatory Council issues its own regulations on the matter.
- Over 30,000 comments from the pubic were received in response to the NLRB’s recent issuance of proposed rules that would streamline litigation and limit the availability of Board review in representation cases, allowing the Board to conduct representation elections in a shorter time after the filing of a petition for a secret ballot election. Further, the congressional response to the proposal was divided along party lines. Unions, including the Teamsters, SEIU, and Laborers’ International Union, described the proposals as modest while business groups, the U.S. Chamber of Commerce, and Society for Human Resource management argued that the proposals were hastily done and unnecessary. No date has been set for final board action on the proposed rules. Click here for a client briefing summarizing the proposed rules.
- Lafe Soloman, General Counsel to the NLRB, and House Oversight and Government Reform Committee Chairman Darrell Issa (R-Calif.) are engaged in discovery disputes pursuant to a congressional subpoena for documents concerning Boeing. Soloman authorized the issuance of a complaint alleging that Boeing unlawfully established a second assembly line at a nonunion plant in South Carolina to retaliate against union-represented workers in Washington who engaged in lawful strikes. Issa requested documents regarding the Boeing complaint, but Soloman refused to provide some documents based on privilege and because the premature release of documents could compromise the litigation. Issa has not been convinced by Soloman’s arguments and continues to demand the documents. Judicial Watch Inc. has also filed suit against the NLRB for records related to the controversial complaint against Boeing.
- NLRB Chairwoman Wilma Liebman left the agency at the conclusion of her third term on August 27. The White House designated Gaston Pearce to succeed her as chairman. Since the Senate has not yet acted on President Obama’s nomination of NLRB lawyer Terence Flynn (R), the five-seat NLRB now has just three members. Should the NLRB lose another member, the Board would lose authority to issue rulings according to New Process Steel LP.
- The NLRB issued a Final Rule effective Nov. 14, 2011, that requires employers to notify employees of their rights under the NLRA. Private-sector employers (including labor organizations) whose workplaces fall under the NLRA will be required to post an employee rights notice at the same location that other workplace notices are typically posted. Additionally, employers who customarily post personnel notices on an internet or intranet site will be required to post the NLRB’s notice electronically on those sites as well. On or before Nov. 1, 2011, the required notice may be obtained from NLRB regional offices or downloaded from the NLRB’s website (www.nlrb.gov).
- The Acting General Counsel of the NLRB issued a report summarizing recent case developments arising in the context of social media. The cases cover emerging issues such as the protected and/or concerted nature of employees’ Facebook and YouTube postings, the coercive impact of a union’s Facebook and YouTube postings, and the lawfulness of employers’ social media policies and rules. The report also summarized a case involving an employer’s policy restricting employee contacts with the media. Click here to access a client briefing summarizing the report.
- The National Treasury Employee Union (NTEU) re-elected Colleen M. Kelley to her fourth four-year term as president by an 86% majority. Kelley begun her career as a revenue agent with the IRS. She was first elected NTEU national president in 1999.
- The AFL-CIO is working to issue a charter to the Taxi Workers Alliance. The Alliance, representing 15,000 taxi drivers in New York, will be the first non-collective bargaining agent to become a member of the AFL-CIO.
- United Transportation Union delegates re-elected President Malcolm “Mike” Futhey to his second four-year term. Futhey was also elected in a parallel election as president of the Sheet Metal, Air, Rail and Transportation Workers union.
- United Steelworkers held their constitutional convention on August 17. First, United Steelworkers delegates voted to retain the current dues structures. Some members had suggested reducing the dues because of hard economic times, but most delegates preferred to keep the dues structure in tact to remain a “fighting union.” The delegates also vowed to play a key role in the 2012 elections by replacing the “anti-union majorities” and by re-electing President Obama. The delegates also called for increased job creation which could be partly accomplished by rebuilding the nation’s infrastructure. Finally, the union signed a strategic alliance to work together with UNITE HERE in Canada where they plan on coordinating efforts on campaigns, legislative issues, member education, and collective bargaining.
- UPCOMING EVENTS
September 27, 2011
Papez to Discuss Upcoming Supreme Court Term at National Press Club
November 2-5, 2011
Winston & Strawn to Speak and Sponsor ABA's 5th Annual Labor and Employment Law Conference
October 27, 2011 & November 9, 2011
Winston Presents Employment Law Update 2011 in Los Angeles and Chicago
- RECENT PUBLICATIONS
- NLRB Restores Bars to Challenges to Union's Representative Status in Voluntary Recognition and Successorship Contexts. Briefing
- DOL Issues Final Regulations Requiring Successor Government Contractors to Offer Predecessor's Employees Jobs. Briefing
- NLRB Issues Rule Requiring Employers to Post Notification of Employees Right Under the NLRA.
- NLRB Acting General Counsel Issues Report on Recent Decisions Involving Social Media Usage. Briefing
- OFCCP Ramps Up Compensation Discrimination Enforcement. Briefing
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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