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In This Issue

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

1. Organizing

• The United Auto Workers (UAW) union plans to spend hundreds of millions of dollars in an effort to organize hourly factory workers at foreign-owned car plants in the U.S.  The UAW announced that it has more than $800 million in its strike fund, which it intends to use to finance its push to unionize the foreign auto manufacturers, and it plans to hold demonstrations at the corporate headquarters of the foreign-owned companies both in the U.S. and abroad, in addition to picketing their dealerships and the sports events sponsored by the companies.  UAW officials said that the goal is to have at least one foreign auto maker organized by year’s end.

• The UAW issued a set of 11 principles “for fair union elections.”  The UAW is demanding that all corporations adhere to these principles, which call for employers to recognize the right to organize as a “fundamental human right;” ensure that organizing campaigns be free of “coercion, intimidation, or threats”; refrain from holding “mandatory meetings of employees on the issue of unionization unless the UAW is invited to participate;” and make certain that the union and employers have “equal access to the electorate.”  

• The Association of Flight Attendants (AFA) filed an application with the National Mediation Board (NMB) seeking a representation election among 24,000 employees at United Air Lines and Continental Airlines, which merged in October 2010.  If the NMB determines the airlines now constitute a single transportation system for representation purposes, the union said it would claim a representational dispute exists, which would then lead to a representation election.  Currently, the AFA represents more than 15,000 United employees.  If a representation election occurs, the AFA will be up against the International Association of Machinists (IAM), which bargains for about 9,300 Continental employees.  At the same time,  the IAM filed an application with the NMB for a representation election among the 13,800 ramp workers and baggage handlers now working for the merged companies.  If NMB finds that the carriers constitute a single transportation system for representation purposes and schedules a vote, IAM, the union for 6,800 workers at United, would compete with the International Brotherhood of Teamsters, the agent for 7,000 employees at Continental, to represent the combined workforce.  IAM hopes to represent a total of 55,000 employees, including United-Continental’s flight attendants, fleet service workers, stores clerks, and passenger service employees.  If NMB decides that a representation election should take place, under its election procedures, workers would vote either “yes” or “no” for union representation, and the union that wins the largest number of these “yes” votes would represent the combined work group and negotiate with the merged airline for a single collective bargaining agreement.

• The NMB dismissed the IAM’s application for a representation election among 2,200 office clerical workers at Delta Air Lines after finding that the union failed to submit the required number of authorization cards from workers at pre-merger Delta to show it had the support of at least 35 of the combined employee group. As a result of the dismissal, Delta’s pilots, represented by the Air Line Pilots Association, are now the only group that has union representation at the airline, which merged with Northwest Air Lines in 2008.  Two elections, involving flight attendants and fleet service workers, could be rerun if NMB finds that Delta unlawfully interfered in their elections, as alleged by the AFA-CWA and IAM.  NMB is still investigating those charges.

• Employees at more than a dozen hospitals and long-term care facilities in the Cincinnati area that are owned by Catholic Healthcare Partners voted in NLRB-conducted elections in 44 separate bargaining units involving 6,600 employees on whether to join the Service Employees International Union. The SEIU lost 39 elections, prevailed in four and one is pending. The four units voting in favor of joining the union were: non-professional employees at Springfield Regional Medical Center (509 total employees); non-professional employees at Mercy Memorial Hospital Urbana (27 total employees); technical employees at Mercy Memorial Hospital Urbana (28 total employees); employees at Mercy McAuley Center (108 total).  The one unit still in question involves a unit of registered nurses.  The election was part of a cooperative between the union and the hospital chain, where the parties agreed not to campaign against each other. The only materials distributed to employees were jointly-created materials explaining the election process. The election was requested by the employer under an RM Election Petition, which was filed on January 17.

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2. Strikes & Labor Disputes

• The AFL-CIO, in conjunction with two global unions, sent a letter to the Organization for Economic cooperation and Development alleging that Roquette Frères, a French manufacturer of starch and sugar derivatives, and its U.S. Subsidiary, Roquette America, violated the OECD’s Guidelines for Multinational Enterprises when it locked out approximately 240 workers at a factory in Iowa. The workers at Roquette America’s Iowa plant are presented by Local 48G of the Bakery, Confectionary, Tobacco Workers and Grain Millers (BCTGM). BCTGM and Roquette management began bargaining for a new contract on September 14, 2010. When the workers voted to reject Roquette’s final offer, the Company locked them out on September 28. The letter alleges that Roquette’s final offer was “deliberately provocative” because it eliminated sick, personal, and maternity leave, increased worker contributions to health care premiums, ended the pension plan, froze wages for four years, and gave Roquette the ability to hire temporary workers at less than half the wages of the permanent workforce with no benefits.

• Law professors and other law school professionals engaged in picketing activities alongside members of UNITE HERE Local 2 in San Francisco, California, to protest the American Association of Law Schools for holding sessions of its annual meeting at the Hilton San Francisco, one of nine hotels Local 2 is urging consumers to boycott. Local 2 represents 850 workers at the Hilton, and has been without a contract with San Francisco hotels in three out of the past six years. Local 2 has been in contract negotiations with Hilton since June 2009. AALS reported that approximately two-thirds of the programs scheduled to be held at the Hilton were moved at the urging of association members, but also noted that the contract with the Hilton had been signed nine years prior to the actual event, before the dispute with Local 2 arose.

• The UAW voted to authorize a strike, if necessary, at Caterpillar Inc. The company and union are engaged in negotiations for a contract to replace one that expires March 1, 2011. Caterpillar issued a statement about the strike authorization vote, saying the company considers the vote “an internal union matter.” UAW and Caterpillar began contract negotiations December 15 for a new labor agreement covering approximately 9,500 workers.

• Hotel workers represented by UNITE HERE Local 11, who have been working under an expired contract since November 2009, staged a one-day strike on January 26 at the Wilshire Hotel in Los Angeles to protest a wage and benefit cut. Housekeepers, front desk agents, food and beverage workers, and bellmen at the Wilshire Hotel all participated in the strike. At the beginning of January, the Wilshire required workers for the first time to contribute $700 to $1,000 per month to the health care premium if they chose to continue coverage, and reduced wages for housekeepers and laundry workers to the state minimum wage of $8 per hour, down from $10 per hour, and cut front desk agents' wages to $10 per hour, down from $13.10 per hour.

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3. Major Contract Settlements & Negotiations

• Analysis of bargaining data compiled by BNA through January 10 for all settlements showed a decrease in the average first-year wage increase from the comparable period of 2010.  The data showed that the average first-year wage increase was 1.4 percent, compared with 1.9 percent in 2010. The median first-year wage increase for settlements reported to date in 2011 was 1 percent, compared with 2.4 percent in 2010.  When lump-sum payments were factored into wage calculations, the all-settlements average first-year wage increase to date in 2011 was 1.6 percent, compared with 2 percent in the comparable period of 2010.

• Members of the Screen Actors Guild (SAG) and the American Federation of Television and Radio Artists (AFTRA) approved a new, three-year contract covering theatrical and television production workers, which goes into effect on July 1, 2011.  SAG/AFTRA negotiators also reached agreement with the Alliance of Motion Picture and Television Producers (AMPTP) on a contract in November 2010.  The new contract includes a 2 percent per year wage increase, and a 10 percent increase in the current rate of employer contributions paid to the respective pension and health plans.

• Two months after rejecting a 26-month agreement that would have covered Continental Airlines’ operational integration with United Airlines, the International Association of Machinists and Continental reached a tentative agreement on a 20-month interim contract.  The agreement covers Continental’s 9,300 flight attendants, and provides terms related to sick leave, work rules, and the company’s 401(k) match that were not included in the earlier rejected proposal.  The proposed interim contract also provides for a 2.5 percent increase in base pay rates (retroactive to January 1), and a no-furlough clause.  Continental and United merged effective October 1, 2010.

• IAM members ratified a new contract with Alaska Airlines covering 2,600 clerical, office, and passenger service employees.  The agreement will provide signing and ratification bonuses, annual wage increases, and participation in Alaska’s profit-sharing plan.  The contract, which is in place until July 2014, will place members of IAM District 143 near the top of airline industry pay and benefits.

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4. Administrative & Court Decisions

• The IAM and the South Carolina AFL-CIO filed a lawsuit in the U.S. District Court for the District of South Carolina, alleging that Govorner Nikki Haley is violating federal labor law by vowing to use state resources to defeat union organizing efforts. The unions allege that Governor Haley is violating constitutional and statutory rights to free speech, free association, and due process by opposing union organizing in the state.    (Int’l Ass’n of Machinists & Aerospace Workers v. HaleyD.S.C., No. 2:11-cv00153-CWH, complaint filed 1/21/11).

• In a memorandum to the National Labor Relation Board’s Regional offices, acting General Counsel Lafe Solomon announced that he will urge the Board to adopt a new approach for determining whether to defer to arbitral decisions and grievance settlements in unfair labor practice cases brought under the National Labor Relations Act’s prohibitions on employer interference and discrimination.  Solomon’s memorandum concluded that the Board should no longer defer to an arbitral resolution unless the grievant’s statutory rights have “adequately been considered by the arbitrator.”  The memorandum provides guidelines for processing cases presenting deferral issues, and directed that when an arbitration award issues, the Region should submit the case to the Division of Advice with a recommendation whether deferral to the award is appropriate.

• The Association of Deputy District Attorneys’ motion for class certification was granted in the U.S. District Court for the Central District of California, certifying a class of deputy district attorneys who signed union cards in late 2007 and early 2008 that indicated they wanted to unionize.  The complaint alleges that the deputy district attorneys suffered from retaliation after a county official gave management officials a list of all those attorneys who signed the cards, and that the retaliatory acts violated the class members’ First Amendment rights and their rights to information privacy and due process under the 14th Amendment.  The defendants in the case include Los Angeles County, Los Angeles County District Attorney Steve Cooley and top-ranking officials and management in the district attorney’s office.  (One unnamed deputy district attorney at al. v. County of Los Angeles et al., No. 09-cv-7931.)

• The California Court of Appeals held that two California statutes—the Moscone Act and Labor Code Section 1138.1—are unconstitutional under Article I, Section 2 of the California Constitution because the statues make “an impermissible distinction between labor picketing and other peaceful picketing.”  In October 2008, UFCW Local 8 representatives set up an informational picket line in front of Foods Co., a grocery store operated by Ralphs Grocery Co., in Fresno, California.  Local 8 picketed in front of the store, distributed leaflets, and attempted to inform shoppers that Foods Co. employees did not receive the benefits they could expect if they were covered by a union contract.  Ralphs alleged that the union representatives failed to observe the company’s rules for being present on company property, but local police were unwilling to take action, so the company filed a state court action for declaratory and injunctive relief and damages.  The Court of Appeal reversed the lower court’s denial of the  preliminary injunction, finding that the statutes in question create rights in labor disputes and limits on judicial authority that are not operative in controversies over free speech that do not involve labor disputes. (Ralphs Grocery Co. v. United Food & Commercial Workers Union Local 8, Cal. Ct. App., No. F0587816, 1/27/11).

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5. Legislation & Politics

• For the second time, President Obama nominated Craig Becker to the NLRB to fill the remainder of a five-year term as a board member ending in December 2014.  Obama originally announced his intention to nominate Becker in April 2009, but in February 2010, Senate Republicans and 11 Democrats voted to block a vote on Craig’s nomination.  The following month, all 41 Republican senators sent a letter to Obama urging him not to recess appoint Becker, stating that Becker was too controversial and questioning his judgment and objectivity.  Nonetheless, on March 27, 2010, Obama gave Becker a recess appointment that allows him to serve until the end of the Senate’s 2011 session. 

• President Obama nominated NLRB acting General Counsel,  Lafe E. Solomon, to serve as the Board’s General Counsel.  Solomon has been acting general counsel since June 2010 after the position was vacated by Ronald Meisburg.  Solomon worked as an NLRB field examiner in 1972, graduated from Tulane University Law School in 1976, and has served as the head of the NLRB’s Office of Representation Appeals for the past 10 years.  In addition to Solomon, President Obama also announced that he plans to nominate Terence F. Flynn as an NLRB Member.  Flynn currently serves as chief counsel to NLRB board member Brian Hayes, and also has experience in the private sector, where he worked as a labor and employment litigator for several different firms, including Crowell & Moring LLP, David Hagner Kuney & Krupin, and Ried & Priest.

• The NLRB sent letters to the Attorneys General of Arizona, South Carolina, South Dakota, and Utah, contending that the NLRA preempts voter-approved constitutional amendments in each state that guarantee or require the use of secret ballots in union representation elections.  The NLRB stated that unless it received a judicially sanctioned stipulation concerning the unconstitutionality of the amendments within two weeks, it would initiate civil actions in federal court to invalidate the amendments.  The NLRB has since withdrawn its threat to litigate the issue in hopes of negotiating an accommodation with the concerned parties.

• The Governor of Iowa, Terry Branstad, issued an executive order prohibiting the use of project labor agreements (PLAs) on public works projects in the state.  Under Branstad’s order, state agencies and political subdivisions in the state cannot use PLAs on any public works projects that receive state or federal funds. The order will not affect public works projects that already are under contract.

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6. Crime & Corruption

• The former president of International Union of Operating Engineers Local 68, Dennis J. Giblin, was sentenced to two years’ probation and a $100,000 fine after pleading guilty to a two-count criminal information for accepting kickbacks and embezzling funds from an employee benefit plan.  Giblin admitted to soliciting and accepting kickbacks from an unnamed contractor hired to design and install electronic systems in the union’s Education Fund office, and to embezzling Education Fund property by purchasing a couch for his personal condominium via a check issued from the Education Fund account in 2004.  As part of his plea agreement, a third charge for allegedly conspiring to embezzle $5,200 from the Education Fund by having the fund pay for an audio-visual installation also for his condominium was dropped.

• The former president of the New York City Mailers Union, Wayne Mitchell, was sentenced to two years in prison after he pleaded guilty to embezzlement charges.  Mitchell was found guilty of embezzling $373,555 in unauthorized salary and expenses during his nearly four years in office.  Mitchell admitted to the embezzlement during an interview with the Labor Department’s Office of Labor-Management Standards in early 2010.  In addition to his prison term, Mitchell was also ordered to pay that amount in restitution and serve three years of supervised release.

• Gregory Sims, the pastor of the Crossroads Church of Dade City, Florida, who was in charge of managing International Brotherhood of Electrical Workers Local 915’s health and welfare, pension, and vacation funds was sentenced to 30 months in prison after pleading guilty in September 2010 to embezzling approximately $813,000 from the funds by diverting the money to the church’s financial accounts for his own personal benefit and for the use of his parishioners and associates. In addition to his 30-month prison sentence, the court also entered a money judgment for $813,000.

• Members of the Laborers’ International Union and the International Longshoremen’s Association were among the 127 defendants charged with involvement in a wide range of crimes allegedly carried out by seven La Cosa Nostra organized crime families.  The charges include murder, murder conspiracy, loansharking, arson, narcotics trafficking, extortion, robbery, illegal gambling, and labor racketeering. Three members of the International Longshoremen’s Association were indicted with committing perjury in a grand jury probe into organized crime activity on the waterfront of the ports of New York and New Jersey, and 15 defendants were charged with crimes including extortion of members of ILA Local 1235 and other ILA locals.  Other defendants include numerous current and former officials of ILA locals based in New Jersey who are alleged to be affiliated with the Genovese family, which is said to have engaged in a multi-decade conspiracy to influence and control the unions and businesses that work on the New York-area piers.

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7. Miscellaneous

• According to a study conducted by the Center for Economic and Policy Research, Asian Americans and Pacific Islander (AAPI) workers are among the fastest growing groups represented by unions. The analysis, which updates an earlier study, is based on the latest data from the Census Bureau’s current population survey for 2003-2009.

• The NLRB experienced nearly a 5 percent increase in total case intake during fiscal year 2010. The NLRB received a total of 26,585 cases filed under the NLRA, compared with 25,413 in the previous fiscal year. The representation case filings included 2,969 petitions for certification or decertification of a union representative, up 10.1 percent from the 2,696 in 2009. The regional offices obtained 7,246 settlements in 95.8 percent of merit cases, compared to 7,715 settlements in 2009 and a settlement rate of 95.2 percent. The regional offices conducted 1,790 initial representation elections during 2010, up 6 percent from the previous year. However, separately released NLRB data showed that during the first half of calendar year 2010, unions participated in more NLRB elections but succeeded less frequently than a year earlier. Investigative hearings regarding postelection objections and/or challenges were conducted in 56 cases, up from 54 the year before. The U.S. Supreme Court granted certiorari in New Process Steel LP v. NLRB in November 2009, and decided on June 17, 2010, that the two-member board lacked authority to issue decisions. After New Process, 72 enforcement and review cases were dismissed or remanded by federal appeals courts, the acting general counsel reported, noting that the appellate courts ruled on board decisions in only 16 cases. The Board’s orders in the 16 cases were enforced or affirmed in full.

• According to a study by the Labor Department’s Bureau of Labor Statistics, the number of union members decreased to 14.7 million workers on average last year, down 612,000 from 15.3 million workers in 2009. Since 2008, the first year of the recession, unions have lost a total of nearly 1.4 million members. The number of union members employed in the private sector fell by 339,000, to about 7.1 million workers total from 7.4 million, while unions lost 273,000 members in the public sector in 2010, lowering the total to 7.6 million workers from 7.9 million workers the prior year. Including workers who are represented by unions but are not members, the total number of unionized workers fell by 614,000 in 2010, to 16.3 million workers from 16.9 million workers the previous year.

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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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