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In This Issue

1. ORGANIZING
   
   
2. STRIKES & LABOR DISPUTES
   
   
3. THE NLRB CASE AGAINST BOEING
   
   
4. PROPOSED NLRB ELECTION RULES AND U.S. DEPARTMENT OF LABOR “PERSUADER” RULES
   
   
5. MAJOR CONTRACT SETTLEMENTS & NEGOTIATIONS
   
   
6. ADMINISTRATIVE & COURT DECISIONS
   
   
7. LEGISLATION & POLITICS
   
   
8. CRIME & CORRUPTION
   
   
9. MISCELLANEOUS
   
   

1. ORGANIZING

• On June 2, 2011, the Air Line Pilots Association (ALPA) filed an application with the National Mediation Board (NMB) for a representation election among 2,200 JetBlue Airways pilots. In 2009, the airline’s pilots rejected representation by an independent union, the JetBlue Pilots Association. In the 2009 election, only 33 percent of pilots voted, almost all of whom were in favor of union representation, while the 67 percent of pilots who did not vote were counted as “no” votes. Under the NMB’s new voting rule adopted in 2010, election outcomes are now determined by a majority of the votes cast, as apposed to an absolute majority of all eligible voters.

• UNI Global Union (UNI), a Geneva-based group representing about 900 labor unions worldwide, called for Wal-Mart Stores Inc. to enter into discussion about a global agreement in which Wal-Mart would recognize unions in the local communities where the company is seeking to expand.

• The United Food and Commercial Workers (UFCW) organizers are working to sign up Wal-Mart employees to the “Organization United for Respect at Walmart”, or OUR Walmart. OUR Walmart is not a “union” because it has not taken the steps to get formal recognition and is not pursuing a union contract. But, those who sign up must pay $5 a month. UFCW officials have made known that they want OUR Walmart to pave the way to union recognition. Wal-Mart officials are calling the new movement a “stalking horse” for unionization and an attempt to gain new media attention to an anti-Wal-Mart corporate campaign that has failed.

• The UFCW lost a unionization vote at a Target store in Valley Stream, New York. Of the store’s 250 employees, 137 voted against joining the union while 85 voted for it. The Valley Stream store would have been the first of Target’s 1,750 stores to be unionized.

• The American Federation of Government Employees (AFGE) won a runoff election against The Union for Federal Employees (NTEU) to represent more than 43,000 federal airport screeners employed by the Transportation Security Administration (TSA).

• Concluding a five-week long election process conducted by the National Mediation Board (NMB), flight attendants at United Continental Holdings Inc., elected the Association of Flight Attendants-Communications Workers of America (AFA) over the International Association of Machinists (IAM) as their representative collective bargaining unit. The addition of the Continental employees will bring the total number of employees represented by AFA to nearly 60,000 at more than 20 airlines, securing its position as the world’s largest flight attendant union.

• The International Brotherhood of Teamsters (IBT) announced that it had reached a voluntary card check agreement with UPS Freight. A UPS Freight spokesman said that this new agreement does not have a neutrality agreement and, as a result, the union only will be able to approach employees at a given location after notifying the company.

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2. STRIKES & LABOR DISPUTES

• 800 National Union of Healthcare Workers (NUHW) members held a one-day strike against Salinas Valley Memorial Hospital in Salinas, California. The hospital hired replacement workers for three-day durations and displaced more than 100 workers for two days following the strike.

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3. THE NLRB CASE AGAINST BOEING

• Three employees of Boeing’s South Carolina assembly plant sought to intervene in the case, and 16 state attorney generals filed an amicus brief opposing the NLRB’s complaint against Boeing. On June 23, Administrative Law Judge (ALJ) Clifford H. Anderson rejected Boeing’s attempt to subpoena a wide range of documents that would reveal the identity of NLRB witnesses and the factual basis of the unfair practice complaint against Boeing. On June 30, ALJ Anderson denied Boeing’s motion to dismiss the NLRB complaint, stating that a trial would be necessary to develop a full record. ALJ Anderson also ruled that it was too early in the case to strike any proposed remedies – such as the NLRB’s request that Boeing source the new 787 work in the Seattle area—adding that the proposed remedies were supported by the NLRB’s policies. Separately, legislation, the Job Protection Act (S. 964 and H.R. 1976), aimed at the NLRB’s complaint has been introduced in both the U.S. House of Representative and the Senate. The Job Protection Act is aimed at preserving federal law’s existing protections of state right-to-work laws. The bill would block the NLRB from moving forward with the case against Boeing, or taking similar action against other companies.

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4. PROPOSED NLRB ELECTION RULES AND U.S. DEPARTMENT OF LABOR “PERSUADER” RULES

• The NLRB proposed significant election rule changes that would require employers and unions to identify issues and formulate positions more quickly in representation case proceedings in front of the NLRB. NLRB Chairman Wilma B. Liebman asserted the current election rules “still seem to build in unnecessary delays, to encourage wasteful litigation, to reflect old-fashioned communication technologies, and to allow haphazard case-proceeding, by not adopting best practices.” The proposed changes would shorten the time between the filing of an election petition and the actual secret ballot vote, which unions heavily favor. For more information regarding the proposed election changes, please click here to view a client briefing from Winston & Strawn on this topic.

• The Department of Labor’s Office of Labor-Management Standards (OLMS) published a notice of rulemaking to dramatically revise the interpretation of “advice” to expand the requirements for reporting “persuader” agreements between employers and labor relations consultants and legal counsel. The proposed rule seeks to limit the advice exemption to the “plain meaning” of “advice,” defined as “an oral or written recommendation regarding a decision or course of conduct.” The practical consequence would be to impose new reporting and disclosure requirements on employers opposing union organizing efforts, as well as any consultants or attorneys who are retained to assist the employer in such an effort. For more information regarding the proposed changes, please click here to view a client briefing from Winston & Strawn on this topic.

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5. MAJOR CONTRACT SETTLEMENTS & NEGOTIATIONS

• The Teamsters rejected a tentative agreement covering United Airline’s 5,500 mechanics and related employees. The union said it will return to the bargaining table with United to seek greater improvements than what were contained in the tentative agreement.

• Members of the Local 1199, Service Employees International Union-United Healthcare Workers East ratified a new collective bargaining agreement with Crouse Hospital in Syracuse, N.Y. Under the new agreement 1,800 hospital workers will forgo wage step increases though December 31, 2012. In the first pay period of March 2012, all employees (including registered nurses; licensed practical nurses; technicians; and service, maintenance, and clerical workers) will receive a bonus payment of 2 percent of their base pay. Employees will receive hourly wage increases of 1.85 percent in the second year and 2 percent in the third year of the contract. Employees will see their health insurance premium contributions go up over the term of the agreement.

• Members of National Nurses United (NNU) ratified a three-year contract with the University of Chicago (U of C) Medical Center covering 1,200 registered nurses at the medical center. The U of C Medical Center agreed to hire 16 new patient care support nurses to provide coverage so nurses can take their meal and rest breaks without interruption. The contract also limits scheduling policies that allowed the hospital to switch nurses’ shifts between days and nights. The new terms provide for wage increases of 3 percent in 2012, 4 percent in 2013, and 3 percent in 2014, and it adds limits on employee out-of-pocket costs for health care benefits.

• The Teamsters ratified its first national collective bargaining agreement with First Student, Inc. The national contract only deals with work rules, discipline, and grievance issues. Economic issues will continue to be negotiated on a contract-to-contract basis at the local level. The contract affects more than 20,000 school bus drivers and other workers.

• The International Union of Electronic Workers-Communications Workers of America Local 82162 ratified a new three-year agreement with ITT Night Vision & Imaging. Under the new agreement, 1,000 production and maintenance employees will receive a 3 percent wage increase each year, for a total of 9 percent over term. The agreement also provides that ITT will pay a greater percentage of health care premiums, increase the multiplier under the defined benefit pension plan, and add personal and vacation days.

• Members of the News Media Guild Local 31222 ratified two 33-months contracts with the Associated Press (AP) that cover 1,200 editorial and technology workers nationwide. The new agreements provide for pay raises of 4.5 percent over the term of the agreement. The current rates employees pay for health insurance will remain unchanged, and the AP will absorb any increases in costs. The new agreements freeze the defined benefit plan, and include terms restricting replacement of laid off workers with stringers or freelance workers, as well as make changes to vacation policies, jurisdiction, checkoff, dismissal pay, transfers, expenses, scheduling, holidays, leaves of absences, sick leave, and health and safety.

• Members of the United Healthcare Workers — West, an affiliate of the SEIU, ratified a new three-year contract affecting 3,000 employees at nine Tenet Healthcare hospitals in California. Under the contract, employees will receive annual wage increases of 2 percent to 4.5 percent, depending on where they are on the wage scale. The contract also preserves full employer-paid health insurance.

• Members of the United Mine Workers ratified a five-and-a-half year agreement with the Bituminous Coal Operators Association (BCOA). The agreement covers 3,000 employees at Consol Energy’s unionized subsidiaries, and provides for wage increases totaling $6 an hour over the term of the agreement. Health care benefits for active and retired miners will also be preserved with no cuts or increases in deductibles, co-payments, or other out-of-pocket costs for both individual and family coverage. Pension benefits will also be preserved. The union plans to ask all other major coal companies to agree to the same provisions for several thousand additional workers.

• Members of the Communications Workers of America locals 4400 and 4401 ratified a 39-month collective bargaining agreement with Cincinnati Bell Inc. The agreement covers 1,000 employees. Under the agreement, employees will receive lump sum payments and/or wage increases amounting to 6.75 percent over the life of the agreement. The contract continues a two-tier wage and benefit structure for workers hired before or after February 1, 2008.

• The Chicago Public Schools’ Board of Education voted to rescind a 4 percent wage increase that was promised to 40,000 school employees under separate agreements with seven different unions. The board voted unanimously not to fund the wage increase in an effort to trim $100 million from a projected $712 million shortfall heading into the upcoming school year.

• Macy’s and Retail, Wholesale, and Department Store Union Local 1-S (RWDSU) announced its members ratified a five-year collective bargain agreement covering more than 4,000 workers at four Macy’s department stores in the New York City area. The new contract provides for wage increases totaling $3.05 over the contract term. Macy’s will contribute $400 to participating full-time employees’ medical spending accounts each year from 2012 through 2014, which will reduce employees’ health care contributions by about 4 percent.

• The United Electrical, Radio and Machine Workers of America (UE) and International Union of Electronic Workers (IUE) members ratified four-year national labor contracts with General Electric Co (GE). The agreements provide an immediate lump-sum payment of $5,000 to workers in July and increase hourly wages by 2.25 percent in June 2012, by 2.5 percent in June 2013, and by 3 percent in June 2014. The agreements also require employees to contribute a higher percentage of the health care premium while expanding the defined benefit pension plan guaranteed table for current employees. The defined benefit pension plan will not be available for employees who are hired after January 1, 2012. The contracts also expand vacation, sick, and personal days as well as dental and disability insurance plans. The contracts cover about 15,200 GE employees nationwide.

• A review of collective bargaining data complied by BNA through May 30 for all settlements show that the average first-year wage increase was 1.4 percent, compared with 1.5 percent during the same period last year. The all-settlements (excluding construction and state and local government) average increase was 1.7 percent, the median was 1.5 percent, and the weight average was 0.90 percent, compared with 1.9 percent, 2 percent, and 1.5 percent respectively from 2010. The average increase for manufacturing contracts was 2 percent, compared with 1 percent in 2010, and the median was 2 percent, the same increase as that reported a year ago. Excluding construction, the nonmanufacturing average increase was 1.6 percent, the median was 1.4 percent, compared with 2.2 percent and 2.3 percent, respectively, in 2010. When lump sum payments were factored into calculations, the all-settlements average first-year wage increase to date in 2011 was 1.7 percent, compared with 1.8 reported in the comparable time period in 2010.

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6. ADMINISTRATIVE & COURT DECISIONS

• The U.S. Court of Appeals for the District of Columbia, reversing the NLRB, ruled that Jackson Hospital Corp. did not commit an unfair labor practice in violation of the National Labor Relations Act (NLRA) when it placed a nurse, Frances Combs, who was active in the local union on “investigatory suspension” because she refused to participate in a disciplinary meeting with supervisors without a union representative present. The court found there was no evidence to support the conclusion that anti-union animus motivated the supervisors who suspended Combs. Further, the court found Combs possessed no Weingarten right to have a union representative present because the supervisors had already decided to impose a verbal warning and the meeting was intended solely to deliver that warning. Jackson Hosp. Corp. d/b/a Ky. River Med. Ctr. v. NLRB.

• The Wisconsin Supreme Court held (ruling 4-3) that Republican state lawmakers, who passed legislation to strip most state workers of collective bargaining rights, were within their constitutional right because they did not violate open meeting statutes. In March, the Republican controlled legislature removed the collective bargaining provisions from the budget bill and passed them as stand-alone legislation with a simple majority. After the bill was signed into law, Dane County District Attorney Ismael Ozanne filed suit, arguing that Republicans had approved it without necessary 24-hour notice. The Dane County Circuit Court agreed and struck down the law for violating open meeting statutes. The state’s Supreme Court overruled and found that there was no constitutional requirement that lawmakers must obey provisions in open meetings laws. State of Wisconsin ex rel. Ismael R. Ozanne v. Jeff Fitzgerald et al., and State of Wisconsin ex rel. v. Circuit Court of Dane County et al.

• The U.S. Court of Appeals for the District of Columbia held that the NLRB properly concluded that New York & Presbyterian Hospital bargained in bad faith with the New York State Nurses Association (NYSNA) when it failed to respond to the union’s information requests about nurse practitioners employed on the hospital’s premises but who were not classified as its employees. In 2004, NYSNA suspected that nonunion nurse practitioners were performing work that the NYSNA bargaining unit employees normally handled. The union requested information about the nurse practitioners, and filed a grievance under its collective bargaining agreement with New York-Presbyterian as well as an unfair labor practice charge with the NLRB. The hospital resisted producing the information. New York & Presbyterian Hosp. v. NLRB.

• The U.S. Court of Appeals for the Third Circuit enforced a NLRB back pay order in favor of two New Jersey warehouse company employees fired in 1999. The court rejected the company’s argument that the fired employees failed to mitigate damages by diligently seeking comparable employment. Instead, the court found that an employee’s procurement of temporary work, continued search for permanent work even when temporarily employed, and subsequent efforts to find a job amounted to a reasonably diligent effort to locate employment. NLRB v. St. George Warehouse Inc.

• The U.S. Court of Appeals for the First Circuit revived Verizon New England Inc.’s lawsuit claiming that the International Brotherhood of Electrical Workers (IBEW) violated a collective bargaining agreement by picketing and refusing to transport tools. Verizon sued the union in April 2009, accusing the IBEW of violating the collective bargaining agreement by banning members from accepting management positions with the company, holding protests outside a company building and refusing to transport work equipment between job sites. Verizon New England Inc. v. International Brotherhood of Electrical Workers Local No. 2322.

• A unanimous NLRB ruled that employees who suffer losses because of a unilateral change should be made whole, even if their union decides not to seek an NLRB remedy requiring a return to the status quo that existed before the employer’s unfair labor practices. In 2003 and 2005, Goya Foods unilaterally replaced its health plans without giving UNITE HERE, the certified bargaining representative of two units since 1998, advance notice or an opportunity to bargain. UNITE HERE filed unfair labor practice charges alleging that the employer’s action violated its duty to bargain. The Board affirmed the ALJ’s finding that Goya violated the NLRA and ordered make-whole relief for the Goya employees. Goya Foods of Fla.

• The NLRB Acting Regional Director for Region 2 dismissed a petition filed by the UAW seeking a union election among 1,800 teaching and research assistants at New York University, finding that current Board precedent that graduate students are not employees under the NLRA’s controlling. It is expected that the UAW will appeal this decision to the full NLRB, which is expected to over rule its prior decisions and find that the teaching and research assistants are employees under federal labor law, and thus eligible to unionize.

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7. LEGISLATION & POLITICS

• Representative Jason Chaffetz, R-Utah, introduced legislation, H.R. 2118, that would restrict the NLRB’s ability to sue states, putting the decision to sue a state over secret ballot amendments in the hands of the U.S. Attorney General. H.R. 2118 comes on the heels of the NLRB’s suit challenging a recent Arizona law that requires all union elections to be conducted by secret ballot. The NLRB alleges that Arizona’s law violates the supremacy clause of the U.S. Constitution. If signed into law, H.R. 2118 would require the decision to challenge a state law to be made by the Attorney General, not the NLRB.

• Tennessee Governor Bill Haslam (R) signed a bill into law that eliminates collective bargaining for public school teachers. The bill, H.B. 130, replaces the state’s Education Professional Negotiations Act of 1978 with language that provides for “collaborative conferencing.” Under the changes, local school boards may meet with teachers’ representatives (groups that receive 15 percent or more of votes in a confidential poll) in an attempt to reach agreement over issues such as pay, benefits, working conditions, leave, and grievance procedures. Under the new law, school boards are not required to accept any terms or provisions sought by teacher representatives. Moreover, any agreement that is reached is limited to a maximum of three years and will not be presented to professional employees or their organizations for approval.

• Governor Bill Haslam (R) also signed Public Act number 2011-502 into law which requires union representation elections in Tennessee to be conducted by secret ballot, effective July 1. Similar measures have been approved by votes in South Carolina, South Dakota, and Utah. In light of the NLRB’s legal challenge to such measures, the Tennessee legislator removed language from the original bill that purported to declare activities by labor organizations aimed at inducing employers to enter into agreements—including strikes, picketing, and boycotts—to be an “unfair labor practice” subject to misdemeanor penalties. The final bill also removes language that would have made employer negotiations or recognition of labor organizations not selected by a majority of employees through secret ballot elections subject to those misdemeanor charges.

• Six Republican House members introduced new legislation known as the Truth in Employment Act (H.R. 2153) which seeks to amend the NLRA to eliminate protection for employees and job applicants who seek or obtain employment as part of a campaign to “salt” an employer’s workforce with professional union organizers or other individuals who are really applying for jobs “in furtherance of other employment or agency status.” The bill is identical to bills that Republicans offered in June 2009, which died in House and Senate Committees. This new bill has been referred to the House Committee on Education and the Workforce.

• Representative Kristi Noem, R-N.D,. proposed the Tribal Labor Sovereignty Act, H.R. 2335, that would exclude from NLRA coverage and eliminate NLRB jurisdiction over “any enterprise or institution owned and operated by an Indian tribe and located on its Indian lands.” This bill seeks to reverse a 2004 NLRB ruling, in San Manuel Indian Bingo & Casino, which held that NLRB jurisdiction under the NLRA generally extends to all Indian tribal enterprises. The Board has subsequently relied on its decision in San Manuel to assert jurisdiction over a number of casinos and gaming operations.

• California Governor Jerry Brown (D) vetoed S.B. 104 that would have allowed agricultural workers the option of using a card check election instead of secret ballots to choose union representation. The bill was supported by the United Farm Workers which indicated that it plans to gather workers at the state Capitol to protest Governor Brown’s veto. The bill was strongly opposed by agricultural employers and business groups. Governor Brown said that before restructuring the Agricultural Labor Relations Act (which he signed into law 1975 during his first term as governor), “it is only right that the legislature consider legal provisions that more faithfully track its original framework.”

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8. CRIME & CORRUPTION

• John McGovern, the former secretary-treasurer of Local 190 of the North Jersey Division of the American Postal Workers International Union from 1992 to 2011, was sentenced to 20 months in prison for conspiring to embezzle $190,000 from the union’s operating account. McGovern admitted that he and Gary Weightman, former president of Local 190, conspired to embezzle funds from the union’s operating and a separate operating account. McGovern was also sentenced to three years of supervised release and ordered to pay almost $800,000 in restitution. Weightman pleaded guilty to one count of tax evasion.

• Joseph Olivieri, former executive director of the Association of Wall, Ceiling, and Carpentry Industries of New York, was sentenced to 18 months in prison on perjury charges for lying under oath when he denied he has Genovese organized crime family ties, as well as ties to a drywall subcontractor that was defrauding district council benefit funds. Olivieri was also ordered to pay a $10,000 fine and serve three years of supervised release after his prison term. Olivieri was the last remaining defendant in a sweeping corruption case charging Carpenter district council officials with taking bribes from contractors to allow them to bypass collective bargaining agreement requirements.

• Teamsters’ General President James Hoffa placed Los Angeles-based Local 630 under a trusteeship at the recommendation of the union’s Independent Review Board (IRB), a court-appointed panel charged with enforcing anti-corruption rules within the Teamsters. IBT International Vice Presidents Randy Cammack and Rick Middleton have been appointed as the trustees of the local. The move to install trustees came after the IRB issued a report on May 12 that detailed alleged offenses of Local 630 Secretary-Treasurer Paul A. Kenny and other union officials, including that they improperly charged some $168,000 in restaurant bills to union accounts and failed to establish proper financial controls.

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9. MISCELLANEOUS

• Delegates to the 28th IBT convention nominated James Hoffa, Sandy Pope, and Fred Gegare as candidates for the office of international general president. At the same time, Ken Hall, Jim Sheard, and Gary Marquart were nominated as candidates for the position of IBT general secretary-treasurer.

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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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© 2011 Winston & Strawn LLP