In This Issue

1. ORGANIZING
   
   
2. STRIKES & LABOR DISPUTES
   
   
3. MAJOR CONTRACT SETTLEMENTS & NEGOTIATIONS
   
   
4. ADMINISTRATIVE & COURT DECISIONS
   
   
5. CRIME & CORRUPTION
   
   
6. MISCELLANEOUS
   
   

1. Organizing

• In the first half of 2010, unions participated in more NLRB elections, but won a smaller percentage of elections than in the same period of 2009.  During the first half of the year, unions won 69.2 percent of the 812 private sector elections in 2010, down from 72.8 percent of the 591 elections held in the first half of 2009.  Unions won 35 percent of the 103 decertification elections in the first half of 2010, compared to winning 39.7 percent of the 121 decertification elections in the same period for 2009.  The Teamsters were the most active union, participating in 217 representation elections, but the Service Employees International Union organized the most workers of any union.  Unions in the services sector held the most elections and the mining industry had the highest win rate, where unions won 86.7 percent of their elections. The first half of 2010 marked only the third time since 1990 that unions won more than 50 percent of the elections in which they participated in the manufacturing sector.

• At the conclusion of a months-long organizing campaign, 763 workers at a JBS beef processing plant voted in favor of representation by United Food and Commercial Workers Local 1776.   JBS acquired the plant, located in Souderton, Pennsylvania, in 2008 after it purchased Smithfield Beef Group.  The unit is comprised of 1,200 workers. The union represents approximately 27,000 JBS workers across the country. 

• At a labor law conference at Suffolk University Law School, NLRB Member Mark Gaston Pearce urged a dramatic reduction in time for holding representation elections.  Pearce contends that the longer the period before the vote, the greater the likelihood of unfair labor practices on both sides.  In the past year, on average there were 38 days between the date that an election petition is filed and the date of the vote.  Pearce spoke approvingly of the procedures under Canadian law where elections are generally held within 5 to 10 days after a union files a petition for a vote.

• In the largest mail ballot election in NLRB history, and the largest union election in the private sector since 1941, the incumbent Service Employees International Union defeated rival union, National Union of Healthcare Workers, retaining the right to represent 43,000 health care workers employed by Kaiser Permanente in California.  Of the eligible voters, 18,290 employees voted to stay with SEIU and 11,364 voted for new representation by the NUHW. 

• Six hundred Atlantic Southeast Airlines mechanics and related workers have voted to join the International Brotherhood of Teamsters.  The National Mediation Board recently implemented a new rule under which employees vote either “yes” or “no” for representation, with the outcome being determined by a majority of votes cast.  Prior to the new rule, unions had to win an absolute majority of all eligible voters. The ASA employees were the first to vote and win union representation under this new rule.

• United Healthcare Workers West was declared the winner in an election held in April to represent workers at four nursing homes in the San Francisco Bay area owned by Pratap Poddatoori.   In April, 85 ballots were cast for UHW, 82 for NUHW, 3 for neither union, and 13 ballots were challenged.  After its investigation, the NLRB counted four of the challenged ballots, resulting in 89 votes for UHW.

• Employees in San Jose, California voted to continue to be represented by United Healthcare Workers West at O’Connor Hospital.  The National Union of Healthcare Workers challenged UHW-West, a local of the Service Employees International Union.  The election took place in June, but the ballots were impounded because the NLRB regional office was in the midst of investigating unfair labor practices charges file by NUHW against O’Connor Hospital.  238 employees voted for UHW-West, compared to 99 who voted for NUHW.

• By a vote of 87 to 85, Jimmy John’s workers in Minneapolis rejected representation by the Industrial Workers of the World.  Two ballots were challenged, both of which were in favor of the union.  Even if both of the challenged ballots were counted, however, the vote would have failed to garner IWW the majority of votes cast that it needed to win the election.

• Teamsters Local 795 won a union election among First Student school bus drivers in Wichita, Kansas.  The Teamsters now represents approximately 29,000 school bus workers around the country. 

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2. Strikes & Labor Disputes

• NLRB Administrative Law Judge Wacknov dismissed a charge filed by the California Nurses Association against the California Pacific Medical Center, alleging a violation of NLRA § 8(a)(5).  The charge alleged that CPMC implemented an unlawful unilateral change in employee health insurance benefits.  After the contract expiration and a 10-month negotiations hiatus, CPMC  proposed changes in health benefits so that the 816 employees would be insured under a self-funded insurance program. Five fruitless negotiation sessions transpired before CPMC declared impasse and announced its intention to implement the changes to the employees’ health care plans. 

• Almost 800 members of the California Nurses Association struck Children’s Hospital Oakland for three days.  The strike occurred in the midst of difficult  negotiations concerning health care premiums and a hospital proposal that nurses with more than 20 years seniority work on weekends. 

• In Chicago, 600 union members of UNITE HERE Local 1 joined Hilton employees from San Francisco and Honolulu in a three-day strike.  The workers, including housekeepers, dishwashers, cooks, bell staff, and food servers, are part of a broader group of 6,500 workers employed in 30 Chicago hotels.  The parties’ collective bargaining agreements have expired, and negotiations for a new agreement have progressed slowly. 

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3. Major Contract Settlements & Negotiations

• Teamsters leadership has unanimously endorsed a concessionary modification of a proposed national contract with YRC Worldwide, Inc. in order to protect the jobs of its approximately 37,000 members in the trucking industry.  The concessions include a 15 percent total reduction in gross wages from terms originally agreed to in the current contract. The tentative agreement is expected to generate $350 million in savings for YRC and would extend the current expiration date.

• The International Longshoremen’s Association voted to accept a two-year concessionary contract with the Hampton Roads Shipping Association.  The local port agreement, which covers the Hampton Roads, Virginia port, lowers wages for the 1,800 covered workers who load and unload “break-bulk” shipments of noncontainerized cargo.  The contract is expected to attract more cargo to the Port of Hampton Roads in order to make it more competitive.

• The Washington Hospital Center of DC implemented key portions of its “last and best” contract offer for 1,600 nurses represented by Nurses United.  On January 1, 2011, the nurses will be covered under the same health insurance plan that covers non-bargaining unit employees.  The hospital also implemented a “cash balance” retirement savings plan and made “market adjustments” in the paid-time-off program. 

• United Food and Commercial Workers Local 455 members ratified a three-year collective bargaining agreement with Kroger Co.  The agreement covers 13,000 Kroger clerks and meat department employees in the Houston, Beaumont, Bryan, College Station, and Nacogdoches areas of Texas.  The agreement provides for hourly wage increases for the employees, more flexibility in scheduling time off,  elimination of blackout weeks for vacations, and unlimited preventive heath care coverage beginning in 2011.  Employee contributions to health care premiums will remain unchanged.  

• 1,600 production and maintenance employees at Kraft Foods’ Davenport, Iowa, facility are working under a new four-year collective bargaining agreement.  The agreement with United Food and Commercial Workers Local 431 provides wage increases of $1.20/hour over term a $1,000 ratification bonus, and the defined benefit pension plan formula will increase by $3 per month per year of service.  The Company dropped its effort to expand alternative work schedules at the plant, such as 12-hour workdays.

• BNA’s analysis of collective bargaining data showed that the average first-year wage hike was 1.7 percent, down from 2.4 percent in 2009.  The median first-year increase for settlements in 2010 was 1.6 percent, down from 2.8 percent in 2009.  Similarly, manufacturing agreements increased on average by 1.3 percent, down from 1.9 percent in 2009.  When lump-sum payments were factored into wage calculations, the all-settlements average first-year increase was 2 percent, also down from 2.7 percent in 2009.  The third-year average increase was 2.4 percent, compared with 2.7 percent in 2009.

• Members of Service Employees International Union Local 32BJ ratified a 4-year labor agreement with the owners group representing apartment building owners in New York.  The agreement covers roughly 1,400 building service employees, including building superintendents, janitors, handymen, porters, doormen, and elevator operators.  The agreement protects the employer-paid family health care coverage and increases wages more than 6 percent over term.

• Several California Teamsters locals representing 5,700 warehouse employees and drivers at distribution centers, manufacturing facilities, and offices of Ralphs Grocery Co., Vons, Albertsons LLC, and Unified Grocers Inc. ratified new five-year contracts.  The contracts provide for retroactive wage increases and an additional 12 percent increase in employer contributions to defined benefit pension plans over term, and the companies also agreed to continue providing 100 percent of the cost of health insurance premiums. 

• International Association of Mechanists Local Lodge 7333 rejected a seven-year contract offer from Hawker Beechcraft Corp. The contract would have provided job protection for approximately 1,700 jobs, in exchange for a 10 percent wage cut and elimination of 821 positions.  The IAM  recommended ratification, stating that it was “the best possible outcome for  the membership in a very bad situation.”  The vote took place two weeks after contract negotiations were placed on hold so that Hawker could consider an offer from Louisiana to move its  manufacturing operations from Kansas to Louisiana.

• Members of United Food and Commercial Workers Local 1564 ratified  a four-year collective bargaining agreement at 26 Smith’s stores.  The contract provides for a combination of bonuses and wage increases, along with 100 percent coverage for preventive health procedures such as mammograms, annual physical exams, and colonoscopies.  Workers will be required to contribute to health care premiums, and Smith’s will increase its contributions to employee pensions.

• Members of United Auto Workers Local 5287 voted to approve a four-year contract, covering more than 1,000 North Carolina-based employees of Thomas Built Buses Inc.,  a subsidiary of Daimler Trucks North America LLC.  The contract provides for a two percent lump sum payment upon ratification, an increase in hourly wages, and a compression of the pay progression scale, resulting in a higher wage level for new hires. 

• Members of the United Auto Workers voted to approve a five-year labor contract with General Dynamics Land Systems.  The contract provides for increased wages, lump-sum payments, fully employer-paid health care benefits, and an expansion of pensions for production, maintenance, technical, office, and clerical workers.  The contract covers 1,500 employees who build military equipment in the company’s Ohio, Michigan, and Pennsylvania facilities. 

• Members of the Massachusetts Nurses Association ratified five-year contracts with four Caritas Christi Health Care hospitals.  The four contracts provide for a uniform paid leave system for 1,700 nurses, pay hikes, a wage reopener in the fifth year, and an agreement on management neutrality in any future MNA efforts to organize employees at two nonunion hospitals in the Caritas system.  The contracts also establish a multiemployer, defined benefit pension plan, switching from a 403(b) defined contribution plan to a jointly administered Taft-Hartley multiemployer trust. 

• Collective bargaining agreements reached in Canada during the month of August had 1.5 percent average wage increases, compared to 2.0 percent in July.  The August average was also down from 2.3 percent in May to 2.2 percent.  The private sector agreements reached during the month of August showed a 1.9 percent gain, compared to 2.2 percent in July. Public sector agreements in August produced annual wage increases of 1.4 percent, up from 1.3 percent in July.  Settlements without cost-of-living adjustments reached in August produced annual wage increases averaging 1.4 percent, compared to 1.7 percent in July.

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4. Administrative & Court Decisions

• A U.S. District Court for the Southern District of Illinois granted a preliminary injunction against Carpenters and Joiners of America Local 638, prohibiting the union from processing internal union charges and taking other disciplinary actions against Andrew Price, the individual who brought the suit and other union members who voiced their opposition to the union’s organizing effort.  Carpenters Local 638 has historically represented carpenters, millwrights, cabinet workers, and flooring installers, but expanded to create a new unit, Local 57, as an electrical workers division.  Price opposed the creation of Local 57 and expressed his view by placing a bumper sticker on his personal truck.  The union warned Price and then brought charges against him, prompting his filing of the lawsuit.  The judge found that the “LMRDA protects his right to express his views on [these] issues without fear or reprisal” and granted a preliminary injunction against the union.  The judge explained that Price was not engaged in unprotected “dual unionism,” as the union had alleged.  Price v. Carpenters’ Dist. Council of St. Louis & Vicinity.  

• The NLRB now requires employers and labor organizations that customarily use intranets, websites, e-mails, or other electronic communications to communicate with employees or union members will now be required to distribute notices electronically to remedy unfair labor practices, in addition to posting paper notices.  The 3-1 decision came on the heels of the Board’s issuance of an invitation for interested parties to file briefs in several cases that presented the issue. 

• The NLRB unanimously adopted a new policy providing that compound interest on back pay and other monetary awards will be applied on a daily basis in unfair labor practice cases.  Previously, the board had ordered simple interest on back pay awards, compounded quarterly.  In deciding to adopt compound rather than simple interest, the Board rejected arguments that it should address the issue through rulemaking and exercise discretion on a case-by-case basis, rather than fashioning a general rule.  The new policy will apply retroactively and will be applied in all pending cases, absent manifest injustice.

• In a 2-1 decision, the NLRB reversed the dismissal of a United Auto Workers local’s petition for a vote on union representation by university graduate assistants at New York University.  The case addresses a 10-year dispute over the unionization of graduate students. Initially, the Board held that graduate assistants were employees within the meaning of the NLRA, and thus eligible to join a union and bargain collectively.  That decision was overruled shortly thereafter by the Brown University decision.  In October 2010, a two-member majority, consisting of Members Craig Becker and Mark Gaston Pearce, found that there were “compelling reasons” to reconsider the Board’s 2004 Brown University decision, but did not go so far as to overrule its precedent. Rather, they reversed a regional director who relied on Brown University in dismissing the petition and remanded for the development of a full evidentiary record.  Member Brian E. Hayes dissented, writing that the case presented no reason for review or reconsideration of Brown University.  New York Univ., 356 N.L.R.B. No. 7.

• The NLRB announced a new initiative, whereby section 10(j) injunctions will be fast-tracked into federal court in cases involving reinstatement of employees who are fired in the midst of union-organizing campaigns.  The initiative mandates that NLRB regional directors investigate allegations of an illegal firing immediately and then submit their recommendation to the general counsel’s office within seven days if they have merit.  Acting General Counsel of the NLRB, Lafe Solomon, stated that he will personally review each case to see whether he agrees with the recommendation for the injunction.  The NLRB Chairman Wilma Liebman is considering additional procedural initiatives in order to expedite the injunction process.

• The NLRB issued 315 decisions in fiscal year 2010, a 20 percent increase from fiscal year 2009.  Since the June New Process Steel case,  in which the Supreme Court held that the board lacked authority to rule with only two members, the board has ruled on 70 of the 96 cases that were then pending.  Although the volume of decisions has risen in 2010, the number of pending cases continues to be far lower than it was in the Clinton Board or the Bush-I Board.  Regardless, NLRB Chairman Wilma Liebman remains resolute: “My goal for the coming year is to clear the decks of the oldest cases, which will bring long-awaited resolution to the parties and allow us to move on to new issues.”

• An NLRB report to the general counsel on the quality of agency litigation efforts indicated that the board’s regional offices are “doing a superb job” of litigating unfair labor practice cases before the NLRB and its ALJs.  The report also noted that the litigation success rate for fiscal year 2010 through August is 92.3 percent, up from 89.8 percent for 2009.  The NLRB committee responsible for the report reviewed 47 cases and identified areas for improvement, including a recommendation that regional offices should be sure that cases are adequately staffed.  The committee reviewed bargaining cases and commented that in several cases, “there was an argument for finding the conduct to be violative, but taken in context, the case should have been dismissed or handled through a merit dismissal.” The committee also recommended that regions should attempt to identify inconsistencies between witness accounts because, often, inconsistent testimony requires additional preparation and strategy on the part of the region.

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5. Crime & Corruption

• William Dugan, a 45-year veteran of Local 150 in Chicago of the International Union of Operating Engineers, has been sentenced to three years probation after pleading guilty to misdemeanor criminal charges.  Dugan was also ordered to pay a $30,000 fine and supervisory costs associated with the probation, estimated at $200 per month.  He is also barred from participating in union activities for 13 years and from receiving any gifts or funds from unions.  The plea agreement describes a host of Dugan’s illicit schemes, including an arrangement to purchase equipment at rates substantially below market rate and converting union assets for his personal use.

• Patrick James Brennan, a former business manager and secretary-treasurer of New Jersey Painters and Allied Trades, was sentenced to 12 months of confinement for stealing union funds.  In addition to paying $32,487 in restitution, Brennan was ordered to serve six months in prison, six months of home confinement, and three years of supervised release.  Brennan pleaded guilty to three counts of embezzlement for using union funds to benefit himself and his family.

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6. Miscellaneous
   

• The International Brotherhood of Electrical Workers instituted a requirement on construction locals around the country to implement “recovery programs” that include the creation of two new job classifications: construction wiremen and construction electricians.  The classification system establishes seven tiers and serves to expand opportunities for contractors and the union.  The “CW/CE” classifications demand fewer professional skills and training requirements than other job classifications, such as the journeymen classification.  The programs originated in a pilot program in 2005, which permitted contractors to hire CWs and CEs at lower rates than journeymen.  This effort aims to change the path of the industry in order to increase market share, get more work out of union members, grow the union and raise standards throughout the industry.  The new program is controversial among some communities and labor organizations, both of which have historically resisted industry efforts to create “helper” or “junior” classifications because of their potential to undermine the development of certified journeymen.

• Sandy Pope has announced that she will challenge James P. Hoffa, the incumbent president, during the International Brotherhood of Teamsters' 2011 national election.  Pope joined Teamsters in 1978 as a warehouse selector and steelhauler and has risen in the ranks to serve as the Local 805 president in Long Island, New York since 2004.  She is the first woman to run for president of the 1.4 million member union.   Fred Gegare, union chairman of the Central States Pension Fund, an international vice president, the head of IBT’s dairy division, the head of the food processing division, and president of Joint Council 39 has also declared his candidacy for president.

• Lee Moak won the Air Line Pilots Association election in a four-way race.  Moak joined ALPA in 1988 and flies for Delta as a B-767 captain.  He was chairman of the Delta MEC for five years, during which time he worked with Delta management during the attempted hostile takeover of Delta by U.S. Airways, and the merger of Delta with Northwest Airlines.  He will begin his term as president of the nation’s largest pilot union on January 1, 2011.

• The NLRB named Arthur Amchan the deputy chief administrative law judge in the Division of Judges.  Amchan served as an NLRB judge for 14 years, and previously served as associate chief administrative law judge in the division’s Washington, D.C. office.

• Members of three local unions in California have voted to unify into a single statewide office called the Service Employees International Union United Service Workers West (SEIU USWW).  SEIU has planned since 2006 to unite locals 1877, 24/7, and 2006 in order to garner greater strength for the union.  The new unit will include more than 40,000 janitors, security officers, airport workers, racetrack, allied and entertainment, residential workers, university workers, and other service workers.  The members also voted to approve the new constitution for USWW, one of the fastest growing and most diverse SEIU locals.

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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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