Labor & Employment Practice
Labor News
Select events and news from the world of organized labor for February 2011

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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 union is working to organize employees of foreign-owned automakers that have U.S.–based plants. UAW President Bob King claims that the union has entered into confidential talks with automakers about holding elections and the union feels “very upbeat about the prospect of working together with the companies.” King would not disclose the names of the automakers with whom he is allegedly in discussions, though. In January, King announced an effort to convince foreign companies to commit to a set of “principles” to ensure fair elections, and he added that companies that did not agree with the UAW´s principles faced being denounced as “human rights violators.”
  • UNITE HERE Local 19 announced a boycott of the Hyatt Regency Santa Clara. The union is working to organize about 300 employees of the hotel through the card check process. The union is asking customers to stop patronizing the hotel for meals, overnight stays, and events. UNITE HERE Local 2 has previously boycotted numerous Hyatt hotels in San Francisco, and the Hyatt has previously agreed to card check and neutrality in San Francisco and San Mateo counties.

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  1. Strikes & Labor Disputes
  • After reaching an impasse in its negotiations with the Committee for Recognition of Nursing Achievement with which it had been negotiating the contracts of 2,700 nurses, Stanford Hospital & Clinics and Lucile Packard Children´s Hospital put its last, best, final offer into effect, imposing a four percent wage increase, limiting paid time off benefits, extended bereavement leave to cover sons- and daughters-in-law, changing long term disability benefits, and changing grievance and arbitration procedures, among other changes. Union President Lorie Johnson characterized the hospital´s actions as “a declaration of war” and “a blatant attempt to try to force us to accept a bad contract.”
  • The National Football League filed an unfair labor practice charge against the National Football Players Association alleging that the NFPA violated Section 8 of the National Labor Relations Act by engaging in “surface bargaining and an anticipatory refusal to bargain” by failing to engage in good faith negotiations on topics including workers´ wages and hours. The NFL´s concern is that the union is delaying bargaining for the purpose of allowing its members to decertify their own union, thereby positioning the players to sue the NFL over the issue of whether a threatened lock violates federal antitrust law.
  • For the third time since August 2010, Washington Hospital Center registered nurses voted to authorize a one day strike against the Washington, D.C. based hospital. The parties are attempting to reach a new labor agreement. If the nurses go ahead with the one day strike, the hospital plans to use a staffing agency which will hire replacement nursing staff for a 60 hour week, thereby displacing the striking nurses for a week.
  • California based Prime HealthCare Services Inc. accused the Service Employees International Union-United Healthcare Workers West of running an extortion campaign against it. Recently, the SEIU published a report claiming that rates of septicemia diagnosis of Medicare patients treated at Prime´s facilities are higher than average, which the SEIU claims suggests either Medicare fraud or infection control problems. Some California state legislators have requested investigation into the issue. Prime and SEIU are locked in contentions collective bargaining negotiations.
  • According to the Labor Department´s Bureau of Labor Statistics, work stoppages increased from five in 2009 to 11 in 2010. During 2010, more than three times the number of employees idled in 2009 were prevented from working due to work stoppages. Thirteen thousand employees were stopped from working in 2009 and that figure skyrocketed to 45,000 in 2010. This resulted in 302,000 lost workdays in 2010, up from 124,000 in 2009. A construction workers strike in Chicago resulted in the largest number of lost work days when 15,000 workers were stopped from working for a total of 180,000 workdays during an approximate two-week walkout. The longest work stoppage was a four week strike which took place in Pennsylvania. Despite these recent increases, the general trend is that major stoppages have steadily declined overall since the late 1970s.

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  1. Major Contract Settlements & Negotiations
  • FedEx Express and the Air Line Pilots Association settled a 24-month labor contract that includes pay increases for 4,500 pilots in 2011 and 2012. Vacation and retirement benefits remain unchanged. The parties stated that they opted for a short-term agreement given uncertainty as to proposed regulatory changes that may affect various issues that the parties would likely otherwise be unable to change if the were bound by a longer term agreement.
  • United Food and Commercial Workers Local 1776 and JBS beef processing settled a three-year contract that provides for wage increases (most will receive an increase of $1/hr effective immediately and some will receive additional increases of up to $3/hr to $5/hr over the course of the contract), increased paid vacation, and a reduction in health care premiums and employee out of pocket costs. The UFCW won a union election at the plant in 2010.
  • Approximately 17,000 nurses and nurse practitioners in California will receiving a four percent wage increase, additional lump sums payments each year, a defined benefit pension plan, and fully employer-paid retiree health care under a newly ratified contract with Kaiser Permanente. The new agreement provides the employees a greatly expanded role in staffing and scheduling issues.
  • The Teamsters and Southwest Airlines reached agreement on a contract that provides employees wage increases up to 13.5 percent and increases SWA´s contribution to their 401(k) plans from 7.3 to 9.3 percent. Additional terms concern work rule changes and job protection terms.
  • The SEIU reached a three year contract with HealthPartners that covers 1,500 nurses, pharmacists, lab technicians, nurse practitioners, and physicians´ assistants who work at HealthPartners´ 27 Minneapolis–St. Paul area clinics. Highlights of the agreement include maintenance of no cost health insurance for individuals and only a $70 monthly premium for family coverage. Wages will increase one percent twice a year during the term of the agreement, and an incentive pay system was implemented tied to patient satisfaction surveys.
  • Airline pilots working for Pinnacle Airlines Inc., Colgan Air Inc., and Mesaba Aviation Inc. ratified a five-year labor agreement. The three airlines are owned by parent company Pinnacle Airlines Corp. and the 3,000 pilots covered by the agreement are represented by the Air Line Pilots Association. Over the course of the contract, half of the covered pilots will receive wage increases of between two and three percent for each year of the contract. This means that some pilots stand to receive a 15 percent wage increase over term.
  • IBEW Local No. 1049 and National Grid utility, based on Long Island, New York, settled a four-year contract that provides for up to a 10 percent wage increase over term and increased shift differential pay for the 2,700 employees of the company. The agreement shifts an increasing share of health care costs to employees, though, and medical and dental premiums will increase each year of the contract.
  • International Association of Machinists represented flight attendants ratified a 20–month contract with Continental Airlines. Under the short–term contract, the 9,300 flight attendants will receive a series of pay increases, as well as incentive pay when they reach a certain number of flight hours. The contract also provides for profit-sharing, 401(k) matching, and an increase in per diem hourly rates.
  • Analysis of bargaining data compiled by BNA through February 21 for all settlements showed an increase of 0.1 percent in the average first-year wage increase from the comparable period of 2010. The data showed that the average first-year wage increase was 1.7 percent, compared with 1.6 percent in 2010. The median first-year wage increase for settlements reported to date in 2011 was 1.5 percent, the same figure that was reported in 2010. When lump-sum payments were factored into wage calculations, the all-settlements average first-year wage increase to date in 2011 was 2 percent, compared with 1.8 percent in the comparable period of 2010.

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  1. Administrative & Court Decisions
  • In a 2-1 decision, the National Labor Relations Board decided that Parexel International LLC, a pharmaceutical research company that fired a licensed practical nurse in a “preemptive strike,” in an effort to keep her from discussing perceived wage discrimination or favoritism with fellow employees, violated Section 8(a)(1) of the National Labor Relations Act. In so holding, the Board reversed the Administrative Law Judge, who found that the employee had not engaged in protected concerted activity before her discharge where there was no evidence that she had met with other employees to confer about wage favoritism and where there was no evidence that any employees had asked her to raise the issue of wage favoritism. Parexal International, LLC.
  • In a 2-1 decision, the NLRB ruled in favor of a UAW local, finding the OGS Technologies Inc., a Connecticut button manufacturer, engaged in unfair labor practices when it removed recently reclassified die engineers from the bargaining unit without first bargaining with the union over this subject. The Board also found that OGS violated the NLRA when it changed its manufacturing operations by unilaterally deciding to outsource die making to subcontractors which resulted in the termination of one and reassignment of another die engineer. OGS´ argument that its decision to engage subcontractors who could provide laser and computer technologies was an entrepreneurial decision not requiring collective bargaining was rejected by the majority. The Board ordered OGS to reinstate employees laid off as a result of these changes and pay back pay going back to March 2000, among other things. O.G.S. Techs Inc.
  • The U.S. Court of Appeals for the Second Circuit held that the NLRB must “fashion evidentiary rules” to allow cross-examination of employees who apply for back pay regarding their immigration status. The Second Circuit held that the NLRB should have required the Administrative Law Judge to reconsider his ruling that an employer could not question employees in a back pay hearing regarding immigration-related issues and that the employer could not provide testimony of an immigration expert. NLRB v. Domsey Trading Corp.
  • A civil rights lawsuit was filed by Sal Rosselli, current head of the National Union of Healthcare Workers, and five other individuals which alleges that the SEIU´s United Healthcare Workers harassed and threatened them and that the union has a “policy and practice of utilizing physical intimidation against those in the labor movement who they consider to be ‘enemies.’” Rosselli is the former president of the union. He was asked to leave in 2009 after being accused of misusing funds. The complaint, filed in California Superior Court, alleges that the union engaged in improper conduct both prior to and after his departure from the union´s top position. Rosselli, et al v. Service Employees International Union, et al.
  • Rohm & Haas Co.´s attempt to vacate an arbitrator´s award in favor of a former water treatment plant worker on the grounds that the award violated public policies against violence in the workplace and employment discrimination was rejected by a federal court in Pennsylvania. The issue leading up to the arbitration arose after the employee´s supervisor reported the worker had made statements that the supervisor perceived as threatening. Following an investigation, the employee was fired, and the union grieved the discharge as being without just cause. The arbitrator sided with the union and the employer filed an action in federal court to vacate the award based on the fact that there was evidence that, in the workplace, the plant worker had allegedly discussed acts of violence, showed a knife to a co-worker while simultaneously telling the co-worker that he had friends who could “take care of” his supervisor, and called his supervisor, who was of Indian descent, “boy.” Rohm & Haas Co. v. United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied-Indus, and Serv. Workers Int´l Union.
  • An NLRB ALJ found that the Air Line Pilots Association, International violated the NLRA by committing unfair labor practices against its own workers. The ALJ found that the union illegally conducted employee layoffs and unilaterally imposed changed pay, fringe benefits, and work rules on its workers where no impasse in bargaining had been reached. Air Line Pilots Association, International.
  • In a 3-1 decision, the NLRB ruled that a union which displayed stationary banners at 19 locations did not commit an unfair labor practice in violation of Sections 8(b)(4)(i)(B) and 8(b)(4)(ii)(B) of the NLRA where, at a neutral employer´s construction site, union agents displayed banners announcing a “labor dispute” and which stated “shame on” the neutral employer. The Board affirmed the ALJ´s decision which found that the banners did not amount to signal picketing that induced or encouraged employees of neutral employers to cease work nor did they constitute a threat, coercion, or restraint of a neutral employer. Southwest Regional Council of Carpenters (New Star General Contractors, Inc.).
  • The NLRB and American Medical Response of Connecticut Inc. settled a case brought by the NLRB in October 2010, which alleged that the company illegally terminated an employee for posting critical comments about her supervisor on her Facebook page after the supervisor allegedly refused to allow the employee to have union representation during a performance related investigation. The settlement between the NLRB and AMR provides that the company will revise its Internet policy to permit employees to discuss wages, hours, and working conditions outside of the workplace and by changing union representation procedures.

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  1. Legislation & Politics
  • In November 2010, voters in four states (Arizona, South Carolina, South Dakota, and Utah) passed Constitutional amendments that either guarantee or require secret ballot elections when determining questions related to union representation of employees. In response, NLRB General Counsel Lafe E. Solomon wrote to each State Attorney General to advise that the newly enacted statues infringed on Section 7 rights under the NLRA, and he threatened to sue on preemption grounds. The Attorneys General jointly replied and informed General Counsel Solomon that they were prepared to defend the amendments which they believe do not interfere with the NLRA. Solomon then backed off his threat to sue asserting that there may be “a basis upon with this matter can be resolved without the necessity of costly litigation.”
  • Senators Orrin Hatch (R-Utah) and Mike Enzi (R-Wyo), along with every Republican Senator (47 in total), sent a letter to President Barack Obama calling on him to rescind the nomination of Craig Becker to the NLRB. The Republican Senators´ concern is that Becker, a former union attorney who has served on the panel since his appointment in mid-2010, has made the panel, which currently is comprised of four members, three Democrats and one Republican, more polarized. This is not the first time Becker is up for confirmation. He was first nominated by President Obama in 2009, but Republican opposition contributed to a failed cloture vote and Becker was ultimately appointed via Presidential recess appointment power to a term that will end at the end of the Senate´s 2011 session. There are five seats on the Board total, and President Obama recently nominated an NLRB lawyer, Terence F. Flynn, for the one Republican seat, which is a currently vacant seat.
  • The United Steelworkers union is organizing to oppose right-to-work laws and ballot measures that are expected to be at issue in at least 11 states this year. If passed, these laws would render union security clauses unlawful.
  • The National Mediation Board´s current rule on elections, which was changed last year, provides that a simple majority vote is all that is required for a union to prevail in a representation election in the airline and railroad industries. Representative Phil Gingrey of Georgia introduced H.R. 548 which would repeal the new rule.
  • The NMB eliminated the option of submitting a silent or blank write-in vote for representation either online or over the phone. The NMB also deleted the provision in its representation election manual that provided that if there was a tie between votes in favor of and against representation, there would be a runoff.
  • The House of Representatives conducted a hearing on “Emerging Trends at the National Labor Relations Board.” Issues discussed included the Board´s decision to overrule case precedent despite the fact that the Board does not have a full panel of five Senate-confirmed members; the Board´s recent decision allowing “bannering” at job sites; NLRB General Counsel Lafe E. Solomon´s decision to confront four States Attorneys General about recently passed Constitutional amendments which the Board believes are preempted by the NLRA and the U.S. Constitution; and the Board´s recent invitation for the filing of amicus briefs in support of pending cases. Also discussed was a proposed rule that would require employers subject to the NLRB to post a statement in the workplace which informs employees of their rights under the NLRA; a January 21 memorandum written by General Counsel Solomon which takes the position that “the board should no longer defer to an arbitral resolution unless it is shown that the statutory rights have adequately been considered by the arbitrator;” and the resource strain that Solomon´s initiative to increase the frequency of certain Section 10(j) cases might cause.
  • Representative Tom Price (R–GA) proposed that an amendment to the fiscal year 2011 budget bill providing that “none of the funds made available by this Act may be used to pay the salary and expenses of personnel to carry out and implement the National Labor Relations Act.” Proposals were also made to cut the NLRB´s budget by approximately 18 percent, or $50 million dollars. If the NLRB´s budget is cut to this degree, the agency stated that it may furlough employees for three months and otherwise curtail agency operations. Any House approved bill, though, still must gain Senate approval. President Obama has stated that he will veto such a bill if it gets to his desk.
  • If the Wisconsin legislature passes Senate Bill 11, state and local employees, with the exception of state troopers, local law enforcement, and fire safety workers, will see significant changes to their bargaining rights. As written, the legislation will limit collective bargaining to wage increases; cap increases to the amount set by the consumer price index unless public referendum approves a greater increase; limit all future contracts to one year; freeze wages until new contracts are ratified; require annual votes to maintain union certification; bar employers from collecting union dues; prevent workers from being required to pay union dues even if they are a union member; and repeal the collective bargaining rights of some state employees.
  • The Ohio Senate passed S.B. 5, which dramatically limits public workers´ ability to bargain wages and benefits and outlaws strikes by any public sector employees in Ohio. The bill goes to the Ohio House of Representatives next, which is expected to approve the bill, and Governor Kasich has announced he will sign it into law.

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  1. Crime & Corruption
  • Following a guilty plea to one count of wire fraud, Michael Urgola, former business manager of Laborers´ Internal Union 1153 Local, was sentenced to 33 months in prison, three years of supervised release, and a fine of $10,000 for unlawfully using his position with the union to assist Andrew Merola, a reputed member of the Gambino crime family, by providing associates of Merola with union work.
  • The U.S. Court of Appeals for the Sixth Circuit affirmed a District Court´s conviction of two UAW officials on charges of conspiracy. The UAW officials extorted General Motors Corporation into giving unqualified union members jobs.

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  1. Miscellaneous
  • Transportation Security Administrator John Pistole issued a Determination that allows nonsupervisory federal airport screeners employed by the TSA to vote on whether they want to unionize. In addition to granting screeners the right to vote on union representation, the Determination establishes limits on what issues may be subject to bargaining and outlined the process for resolving labor disputes. Bargaining, which will be allowed at the national level only, may not include compensation, standards for discipline, job qualifications, proficiency testing, and some security related policies and procedures. The Federal Labor Relations Authority is scheduled to conduct the election between March 9 and April 19 and votes are expected to be counted on April 20. Although it is anticipated that they will vote in favor of representation, if the transportation security offices vote against it, they will continue to be represented by the union of their choice, or by a non–union representative, for some matters including individual grievances.
  • Walter Wise is the new president of the Bridge, Structural, and Ornamental Iron Workers Union. Wise´s term expires at the end of 2011, but Wise plans to run for a full term later this year.
  • A survey by the Pew Research Center for the People & the Press reveals that public opinion of unions remain generally low. While there has been a small change in the percentage of people holding favorable opinions of unions (up four percent to 45 percent), the percentage is still significantly below the 58 percent favorable rating that was recorded in 2007. According to the survey, while more than half of Americans believe that unions positively effect salaries, benefits, and working conditions, only about one–third of Americans think that unions contribute to productivity, access to good domestic jobs, and the ability of U.S. companies to compete in the global economy. Those who hold the most favorable opinion of unions continues to be younger people (18-29 years), democrats (over republicans and independents), and those who reside in households with union workers. There was no significant distinctions based on gender.
  • NLRB General Counsel Lafe E. Solomon issued Memorandum GC 11-06 to regional offices of the NLRB advising that it is no longer necessary to refer to the Division of Advice certain cases involving employees who are bargaining for their first collective bargaining agreement. Pursuant to the memorandum, regional offices can request notice-reading remedies without first having to obtain approval from the Division of Advice in instances where a fact pattern exists suggesting that an employer´s alleged unlawful conduct undermines union support. Regional offices will also be empowered to seek six to 12 month extensions of the “certification year” following a union election victory if an employer allegedly engaged in unfair labor practices that delayed good faith bargaining. General Counsel Solomon also granted regional offices the authority to impose bargaining schedules as remedies in instances where an employer has allegedly purposefully delayed bargaining. In such cases, regional offices can impose a bargaining schedule requiring 24 hours of bargaining per month, with a six hour per session requirement.
  • The International Brotherhood of Teamsters´ election appeals master remanded the election supervisor´s decision that unsuccessful attempts by the union president to offer jobs in exchange for union support during a re-election campaign did not violate the union´s election rules. The election appeals master found that even unsuccessful attempts to garner union support by offering union jobs are prohibited.
  • In June 2010, Wal-Mart Stores Inc. entered into a project labor agreement with the Chicago Building and Construction Trades Council, thus agreeing to use only union workers for construction on Wal-Mart and Sam´s Club stores and distribution centers over a three year period in certain locations in Illinois. Wal-Mart recently entered into another PLA with the Building and Construction Trades Council of Greater New York, which commits Wal-Mart to use union labor for new store construction within New York City for the next five years.

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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:

Charlotte (704) 350-7700

Wood W. Lay

Chicago (312) 558-5600

Derek Barella
Susan M. Benton
Kevin M. Cloutier
John M. Dickman
C.R. Gangemi, Jr.
William G. Miossi
Michael L. Mulhern
Michael P. Roche
Rex L. Sessions
Cardelle B. Spangler
Joseph J. Torres

Los Angeles (213) 615-1700

Paul J. Coady
Anna Segobia Masters
Laura R. Petroff
Maria C. Rodriguez
Amanda C. Sommerfeld

New York (212) 294-6700

Stephen L. Sheinfeld

Paris (33) 1-53-64-82-82

Sebastien Ducamp
Barbara Hart

San Francisco (415) 591-1000

James P. Baker
Charles S. Birenbaum
Jeffrey S. Bosley
Joan B. Tucker Fife

Washington, D.C. (202) 282-5000

William G. Miossi
Gregory F. Jacob


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