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In This Issue

1. NLRB ELECTION AND NOTICE RULE CHANGES
   
   
2. ORGANIZING
   
   
3. STRIKES & LABOR DISPUTES
   
   
4. MAJOR CONTRACT SETTLEMENTS & NEGOTIATIONS
   
   
5. ADMINISTRATIVE & COURT DECISIONS
   
   
6. LEGISLATION & POLITICS
   
   
7. CRIME & CORRUPTION
   
   
8. UPCOMING EVENTS
   
   
9. RECENT PUBLICATIONS

1. NLRB ELECTION AND NOTICE RULE CHANGES

• By a two member vote, the National Labor Relations Board (NLRB or Board) adopted a final rule changing dramatically the union election process. The provisions of the new rule limit pre-election hearings and appeals, and require that elections be conducted not later than 21 days after the filing of a petition, cutting the current period of 42 days in half. Sen. Mike Enzi (R-Wyo.) announced that he would oppose the NLRB’s final rule via the Congressional Review Act, and the Coalition for a Democratic Workplace has filed a lawsuit seeking a preliminary injunction barring the rule from being enforced.

• The NLRB announced that compliance date of its new posting rule, requiring employers to post notices informing workers of their right to unionize, will be postponed, again, until April 30, 2012, pending a ruling on a legal challenge to the Board’s authority to require any such notice.

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2. ORGANIZING

• According to the most recent NLRB statistics, unions participated in over 150 fewer representation elections in the first half of 2011 as compared to the same period in 2010. The union win rate dipped to 63.4% in the first half of 2011, from 69.4% in the first half of 2010.

• The Communications Workers of America filed a petition with the National Mediation Board (NMB) seeking an election for a chance to represent American Airlines’ 9,700 passenger service agents.

• In a 62-38 split, flight attendants at the recently-merged ExpressJet and Atlantic Southeast Airlines selected the International Association of Machinists (IAM) to represent them over the Association of Flight Attendants.

• In a 422-363 vote, workers at Washington State Migrant Council voted against union representation, rejecting representation by the International Brotherhood of Teamsters and the American Federation of Teachers. Workers in the proposed bargaining unit included teachers, cooks, bus drivers, and other support personnel for the nonprofit child care service provider.

• The NMB dismissed charges against Delta Air Lines alleging that it interfered with a representation election that was held in late 2010, in which the stock and store clerks at Delta and Northwest Airlines voted against union representation. This was one of four similar dismissals, including rulings in Delta Air Lines Inc.’s favor that it did not interfere with its fleet service employees’ October-November 2010 representation election and that it did not interfere with its passenger services workers’ election. In each of the four elections, the workforce voted to reject union representation.

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3. STRIKES & LABOR DISPUTES

• On December 1st, the Service Employees International Union (SEIU) Local 32BJ voted to authorize a strike of their 22,000 members in the event the union is unable to agree to a tentative contract with the Realty Advisory Board by the end of December 2011, but on December 30th, the union reached a tentative four-year agreement, averting the strike. The 32BJ SEIU represents office cleaners at over 1,500 commercial office buildings across New York City.

• Despite 19 months of negotiations, the office clerical unit of the International Longshore and Warehouse Union Local 63 struck the Los Angeles and Long Beach, California ports from 11:30 a.m. until 5 p.m., when an industry arbitrator found that the strike was not “bona fide.” The picket line was honored by the cargo handling workers, effectively closing 35% of the terminals for most of the day.

• Manitowoc Crane announced that it would begin hiring replacement workers for the approximately 200 IAM represented employees who have been on strike since November 15, 2011.

• On December 22, 2011, nurses across California engaged in a one-day strike against Sutter Health and MemorialCare Health System hospitals. The nurses claim the strikes are largely regarding patient safety concerns, including concerns about safe-lift policies, meal and rest break policies, and policies regarding sick nurses reporting to work.

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4. MAJOR CONTRACT SETTLEMENTS &
   NEGOTIATIONS

• BNA reports that the average first-year wage increase for major collective bargaining settlements in 2011 was 1.4% compared to 1.6% in 2010; median first-year wage increase was 1% compared to 1.8% in 2010; and the weighted average was 1.1% compared to 1.8% in 2010.

• According to the U.S. Department of Labor’s Bureau of Statistics, over the 12-month period ending September 2011, non-union workers’ pay rose 1.4% compared to 0.3% of union workers and the cost of employer-provided benefits (i.e., health insurance, retirement plans) increased 2.6% for union workers compared to 2% for non-union workers.

• The United Steelworkers ratified a four-year master agreement covering approximately 3,000 workers located in 10 Domtar Corporation paper mills across seven states. The master agreement provides for a 2% wage increase in each of the four year term and ends the two-tiered pay system.

• After a year of negotiations, United Food and Commercial Workers members employed by Great Atlantic & Pacific Tea Co. Inc. grocery stores accepted terms for reduced wages and benefits in light of the grocery company’s pending Chapter 11 reorganization plan in New York bankruptcy court.

• The American Train Dispatchers Association announced that it had reached an agreement with the National Carriers Conference Committee of the National Railway Labor Conference that secures an over-20% wage increase over six years, leaving just one of 13 freight trail unions without an agreement. The remaining union, the Brotherhood of Maintenance of Way Employees, has instead agreed to a 60-day extension of the current cooling-off period, avoiding a potential strike that could have occurred beginning on December 6, 2011.

• The Pascagoula Metal Trades Council – representing approximately 6,000 workers at a Huntington Ingalls Industries shipbuilding facility – ratified a three-year extension to their current contract. As part of the extension, the workers each were to receive a $1,000 ratification bonus before Christmas 2011 in lieu of a cost-of-living adjustment in 2012 and will receive wage increases of 60 cents per hour in 2012 and 2013 and 70 cents per hour in 2014.

• IAM, District Lodge 751 ratified a four-year collective bargaining agreement with Boeing Co. that provides Boeing will build its new 737 MAX in Puget Sound, Wash. and provided for a December 15 $5,000 ratification bonus, an incentive plan of up to 4% annually, and a 2% wage increase annually plus cost-of-living adjustments. With the new agreement, the NLRB dropped its highly controversial unfair labor practices case against the company challenging Boeing’s decision to open a new non-union 787 assembly plant in South Carolina.

• The SEIU ratified 19 separate contracts with Florida hospitals affiliated with HCA, covering about 9,600 health care workers. The contracts, 13 of which were first contracts at hospitals organized in the last 13 months, provide for across-the-board wage increases and terms including successorship language and a provision to provide the union with 60 days’ notice if the hospital chooses to subcontract any work.

• Disneyland and UNITE HERE Local 11, announced a five-year collective bargaining agreement that provides annual wage increases of 40 cents per hour for nontipped employees and new health care options for hotel employees of the Disneyland Resort. The agreement ends a four-year stalemate between the parties.

• The United Mine Workers and Jim Walter Resources Inc. agreed to a five-and-one-half-year contract that mirrors the Bituminous Coal Operators Association agreement reached in June. The agreement increases hourly wages by $6 over term and ensures the same health care and defined benefit pension plans for miners, while providing a 401(k) for certain new miners in lieu of pension benefits.

• The Coalition of University Employees ratified a five-year labor agreement with the University of California (UC). The agreement, which covers 12,500 UC clerical staff, provides the employees with annual wage increases, resulting in increased pay of 14% over the term of the contract, and ensures that they enjoy the same health care and retirement benefits as the general UC population, which UC subsidizes 87% on average.

• The Society of Professional Engineering Employees in Aerospace Local 2001 approved a nine-and-one-half-year contract with Spirit AeroSystems Inc. in Witchita, Kan. The deal, which covers about 2,300 employees, provides an annual market-based wage increase and a $2,000 signing bonus, as well as a transition to the same health plan as non-union employees.

• The United Food and Commercial Workers Local 431 announced a five-year contract with Tyson Fresh Meats in Waterloo, Iowa. The contract includes annual wage increases of 25 cents in each of 2012, 2013, and 2014, and 30 cents in 2015, maintains health care benefits, and adds an accidental death and dismemberment benefit.

• The United Steelworkers announced ratification of a master contract with International Paper Company, covering about 5,700 workers at 43 separate converter plants. The contract includes a one-time lump sum bonus of $1,000, annual wage increases totaling 10% over the contract term, continuity in health care benefits, and improvements in the 401(k) plan, job security, and health.

• The United Food and Commercial Workers Local 951 ratified a three-year agreement with Kroger Co. The contract provides for a one-time lump sum payment ($1,700 for full-time employees, $600 for part-time employees), a base wage increase in the second and third years of 20 cents per hour each year, and continues the health care benefits previously enjoyed by the workers. The union had rejected a previously-proposed contract in November, which did not include a base wage increase in the second year of the contract.

• The Transportation Communications Union and its Carmen Division announced that they ratified two six-year contracts with the nation’s freight railroad carriers, represented by the National Carriers Conference Committee of the National Railway Labor Conference. The contracts mirror the Presidential Emergency Board recommendations, providing for a 20.1% wage increase over the life of the contracts and cap employee contributions to health care premiums at $200 per month.

• SEIU Local 32BJ announced its tentative agreements with the New Jersey Contractors Association and the Hartford Area Cleaning Contractors Association. The contract, which spans four years and covers about 9,000 New Jersey and Connecticut office building cleaners, provides the workers with annual pay increases of between 2.3% and 3%, varying by location, and maintains health care benefits.

• The Teamsters announced that it ratified a first contract with United Airlines. The contract, which covers approximately 5,500 airline employees, provides for a $11,500 signing bonus, wage increases of 16% over the life of the contract, and an early out buy-out program based on a cost of $75,000 per worker, as well as other certain job protection terms and maintenance of current health care benefits.

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5. ADMINISTRATIVE & COURT DECISIONS

• A New York appellate court held that a “no-layoff” clause in a collective bargaining agreement between the Johnson City Professional Firefighters Local 921 and the village of Johnson City was unenforceable. The court held that the clause, which provided that “[t]he Village shall not lay-off any member of the bargaining unit during the term of this contract,” was not explicit enough regarding the situations in which no layoffs would be conducted (e.g., budgetary, economic reasons). In re Arbitration Between Johnson City Prof’l Firefighters Local 921 and Village of Johnson City.

• A New Jersey federal court affirmed an arbitrator’s order enforcing an oral agreement between Rite Aid of New Jersey Inc. and United Food and Commercial Workers Local 1360 that required Rite Aid to comply with a card check/neutrality agreement in exchange for Rite Aid being allowed to serve as a participating prescription provider for a union health and welfare fund. Rite Aid of N.J. Inc. v. United Food & Commercial Workers Local 1360.

• The U.S. Court of Appeals for the First Circuit, enforced a Providence, R.I. ordinance requiring a new hospitality business owner to retain certain employees for at least three months after acquiring the business, finding that it was not preempted by the NLRA. Rhode Island Hospitality Ass’n v. Providence.

• A Minnesota district court granted a temporary restraining order (TRO) halting Minnesota Governor Mark Dayton’s order which would have allowed approximately 4,300 licensed, subsidized child care providers to vote regarding unionization. The TRO responded to a lawsuit brought by 11 child care providers’ and prevented election ballots from being sent out on December 7. Swanson v. Dayton.

• The U.S. Court of Appeals for the Third Circuit affirmed a Pennsylvania district court’s decision to grant an injunction requiring Grane Healthcare Co. to bargain with Local 1305 while a unfair labor practice case is pending. In doing so, however, the Third Circuit rejected the district court’s use of the generic four-factor preliminary injunction test and reaffirmed the use of a two-part test for evaluating NLRB requests for Section 10(j) injunctive relief. The two-part test evaluates whether there is “reasonable cause” to believe an unfair labor practice has occurred and whether relief sought is “just and proper,” as opposed to the more-stringent four-factor test used for generic preliminary injunction motions. Chester v. Grane Healthcare Co.

• The U.S. Court of Appeals for the D.C. Circuit reversed the NLRB, holding that yearly across-the-board wage increases were not a term or condition of employment between Arc Bridges Inc. and its employees despite having provided such increases for several years. Arc Bridges Inc., which has a partially-unionized employment base, granted a 3% wage increase to all non-union employees only and the union filed an unfair labor practice charge in response. The appellate court remanded the case, ordering the NLRB to reanalyze the facts under Wright Line to determine whether Arc Bridges Inc. granted the non-union wage increase as punishment to its unionized employees. Arc Bridges Inc. v. NLRB.

• A D.C. Circuit court refused to enforce the NLRB’s decision finding that the Los Angeles Airport Hilton Hotel and Towers unlawfully suspended 77 workers who engaged in a work stoppage. The court found that the NLRB did not fully investigate the hotel’s grievance procedure and remanded the case for further review. Fortuna Enters. LP v. NLRB.

• Rejecting a legal challenge brought by the Air Transport Association of America Inc., the D.C. Circuit held that the NMB’s May 2010 rule change regarding union representation elections was valid. The change allows union representation elections to be determined by a majority of votes cast, whereas before elections were determined by a majority of all eligible voters. Air Transport Ass’n v. Nat’l Mediation Bd.

• The U.S. Court of Appeals for the Ninth Circuit ruled that Plaza Auto Center violated Section 8(a)(1) of the NLRA by repeatedly suggesting that an employee resign upon the employee asking questions regarding compensation. However, the circuit court held that the company was within its right to fire the employee when he engaged in an outburst of profane and insulting language toward management in a private meeting. Plaza Auto Ctr. Inc. v. NLRB.

• The NLRB ruled that the Venetian Casino Resort LLC’s use of police force to deter and remove labor demonstrators was a violation of NLRA Section 8(a)(1) and not entitled to protection under the Noerr-Pennington doctrine of immunity. The matter concerned a union protest held in 1999 regarding the Venetian’s refusal to give union members preferential hiring rights at the new facility and refusal to honor a card-check agreement. Venetian Casino Resort LLC.

• The NLRB held that the IAM validly won the right to represent about 215 DirecTV employees, who voted 85-80 in favor of union representation. The NLRB rejected DirecTV’s contention that field supervisors promoted the union before the election, thereby interfering with employee free choice. DirecTV U.S. DirecTV Holdings LLC.

• In a 2-1 decision, the NLRB ruled in favor of Harborlite Corp. (a Colorado mine operator), finding that the company legally locked out its employees during a contract dispute despite its repeated threats to replace the workers. Harborlite had been in contract negotiations with Teamsters Local 455 for three months before the parties reached an impasse that instigated the lock out. Harborlite Corp.

• An Idaho federal court held that Idaho’s two recently-passed labor laws – Idaho’s Open Access to Work Act (S.B. 1006) and Fairness in Contracting Act (S.B. 1007) are preempted by federal law. The Open Access to Work Act would have barred political entities from using project labor agreements in public works projects, and the Fairness in Contracting Act would have prohibited job targeting and market recovery programs in public works projects. The laws were challenged by the Idaho Building and Construction Trades Council and the Southwest Idaho Building and Construction Trades Council. Idaho Bldg. & Constr. Trades Council v. Wasden.

• The NLRB ruled that orchestra members were employees, within the meaning of the NLRA, and not independent contractors, thereby allowing the American Federations of Musicians local to proceed with its petition for a union election. Lancaster Symphony Orchestra.

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6. LEGISLATION & POLITICS

• The U.S. House of Representatives passed H.R. 3094, the Workforce Democracy and Fairness Act, which mandates that no union election be held in fewer than 35 days, restricts which employees may vote in union elections, requires a two-week waiting period between a petition filing and the first hearing on the matter, and restricts how a union may contact prospective members. The legislation is in response to the NLRB’s proposed election changes, which included a provision providing employers with only seven days’ notice to prepare for a pre-electing hearing. It is unlikely that the Senate will take up consideration of the bill.

• 2011, U.S. Representative John L. Mica (R-Fla.) introduced a bill that would amend that Railway Labor Act to impose the same procedure on decertifying a union as is currently imposed on certifying a union. Since May 2010, per a new NMB rule, a union may be certified where the majority of voters are in favor of certification.

• The November 2012 California ballot will contain a measure under which money from payroll deductions paid to labor unions, corporations, or government contractors would not be available for political purposes. The measure is backed by Californians Against Special Interests and Citizen Power Campaign. Similar measures were rejected by California voters in 1998 and 2005.

• Effective December 14, the NLRB’s procedural rules will be revised to allow certain motions and requests to be reviewed by the agency’s chief administrative law judge and executive secretary when the Board lacks a three-member quorum. The chief administrative law judge would rule on certain motions in unfair labor practice cases and the executive secretary would rule on administrative and procedural requests. These rulings would be reviewable later by the Board upon restoration of the quorum.

• On December 14th President Obama announced his intent to nominate Richard Griffin and Sharon Block, both Democrats, to fill the NLRB vacancies. Griffin is general counsel of the International Union of Operating Engineers and has served on the board of directors for the AFL-CIO Lawyers Coordinating Committee since 1994. Block is the U.S. Department of Labor’s current deputy assistant secretary for congressional affairs. On December 19, all 47 Senate Republicans warned that they would oppose Obama’s efforts to appoint two Democrats to the NLRB vacancies. Nonetheless, on January 4, 2012, Obama announced that he intended to recess appoint Griffin, Block and Terrence Flynn, a Republican, restoring the Board to a full five members.

• The American Federation of State, County and Municipal Employees (AFSCME) officially announced its endorsement of President Obama. The AFSCME had already announced its intention to spend $100 million on Obama’s reelection campaign and, in addition, has been running ads nationwide attacking the GOP and promoting Obama’s jobs bill.

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7. CRIME & CORRUPTION

• Donny Douglas and Jay Campbell – two former United Auto Workers officials – were sentenced to 18 and 12-month-and-one-day prison terms, respectively, for conspiring to extort jobs from General Motors Corp. during a 1997 strike. The two used their union positions to coerce GM into hiring Campbell’s son and one other union official’s son for positions for which they were not qualified.

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8. UPCOMING EVENTS

• January 30, 2012
  Gregory Jacob will speak at American Conference Institute's 14th Annual National Forum on Wage & Hour Claims and Class Actions.
  Speaking Engagement

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9. RECENT PUBLICATIONS

• Distinguishing Applicability of AT&T Mobility v. Concepcion, Southern District of New York Holds that Employees Cannot Waive Their Right to Collective Action under FLSA
  Briefing

• DOL Proposes Rule to Increase Government Contractors’ Hiring of Disabled Employees
  Briefing

• Illinois Supreme Court Creates New Standard for Enforcing Employee Noncompetition Agreements
  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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