Today’s Labor Updates:
Summary of NLRB Decisions for Week of April 14 – 18, 2014
The Ludlow Massacre Still Matters
Oil industry scrambles to retrofit rail cars
Summary of NLRB Decisions for Week of April 14 – 18, 2014
The Summary of NLRB Decisions is provided for informational purposes only and is not intended to substitute for the opinions of the NLRB. Inquiries should be directed to the Office of Public Affairs at Publicinfo@nlrb.gov or 202‑273‑1991.
Summarized Board Decisions
Fallbrook Hospital Corporation d/b/a Fallbrook Hospital (21-CA-090211 and 096065; 360 NLRB No. 73) Fallbrook, CA, April 14, 2014.
The Board unanimously adopted the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(5) and (1) by: (a) refusing to bargain with the Union over the terms of an initial collective-bargaining agreement; (b) refusing to bargain with the Union over employee discharges and their effects; and (c) refusing to furnish the Union with relevant, requested information concerning employee discharges. In addition, the Board majority consisting of Chairman Pearce and Member Hirozawa adopted the Judge’s finding that the Respondent violated Section 8(a)(5) and (1) by refusing to submit proposals or counterproposals during the first eight bargaining sessions until it received a full set of the Union’s proposals, and further found that the Respondent unlawfully conditioned bargaining on unit employees abandoning the use of certain Union forms. Member Johnson dissented from these latter two findings. The same Board majority also reversed the Judge and ordered a full 1-year extension of the certification year and reimbursement of the Union’s negotiating expenses. Member Johnson, dissenting, agreed with the Judge’s recommendation to extend the certification year by 6 months and to deny the Union’s request for negotiating expenses. Charges filed by California Nurses Association/National Nurses Organizing Committee (CNA/NNOC), AFL–CIO. Administrative Law Judge Eleanor Laws issued her decision on May 16, 2013. Chairman Pearce and Members Hirozawa and Johnson participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Micropower USA Corp. (02-RC-108839) New York, NY, April 14, 2014. The Employer having withdrawn its exceptions to the Regional Director’s overruling of its objections to an election held September 10 and 14, 2014, and with no other exceptions pending and the time allowed for such filing having expired, the Board adopted the Regional Director’s findings and recommendations and certified Petitioner New York State United Teachers, American Federation of Teachers, AFL-CIO as the exclusive collective-bargaining representative of the employees in the appropriate unit.
Entergy Operations Inc. (15-RC-121665) Port Gibson, MS, April 15, 2014. The Board denied the Employer’s request for review of the Regional Director’s decision and direction of election on the ground that it raised no substantial issues warranting review. Petitioner—International Brotherhood of Electrical Workers, Local 605. Members Hirozawa, Johnson, and Schiffer participated.
H2O Landscape Design Inc. d/b/a H2O Utility Contractors (02-RC-116739) Bronx, New York, April 16, 2014. The Board adopted the Regional Director’s findings and recommendations to overrule seven of the Employer’s objections to the election. The objections concerned alleged misrepresentations and threats made by the Petitioner and a meeting held by the Petitioner within 24 hours of the election. No appeal was filed to the Regional Director’s finding that one the Employer’s objections raises substantial and material issues of fact warranting a hearing. Petitioner—International Brotherhood of Electrical Workers, Local 1430, AFL-CIO. Members Hirozawa, Johnson, and Schiffer participated.
Renaissance Hotel Operating Company (28-RD-112742 and 113966) Phoenix, Arizona, April 16, 2014. The Board denied the Petitioners’ request for review of the Regional Director’s Order Consolidating Cases and Dismissing Decertification Petitions on the ground that the request for review raised no substantial issues warranting reversal of the Regional Director’s action. The Board found that, as the Regional Director found merit to related unfair labor practice charges challenging the circumstances surrounding the decertification petitions, and the alleged conduct, if proven, directly would affect the petitions, the Regional Director properly dismissed the petitions. The Board held that the petitions are subject to reinstatement, if appropriate, after final disposition of the unfair labor practice proceedings. Petitioners were made parties in interest in related unfair labor practice cases solely for the purpose of receiving notification of the final outcome of those cases. Petitioners—Individuals. Members Hirozawa, Johnson, and Schiffer participated.
Volkswagen Group of America, Inc. (10-RM-121704) Chattanooga, TN, April 16, 2014. The Board found that, in the unique circumstances of this case, the Acting Regional Director did not abuse her discretion in permitting seven of the Employer-Petitioner’s employees and a corporation of which one of the employees was a director, to participate in the hearing on the Union’s objections to conduct affecting the results of the election, for the limited purposes of (1) offering evidence in opposition to the objections, (2) cross-examining witnesses, and (3) filing briefs. Some of the objections named the corporation and at least one of the employees, and it appeared that only the Union would present evidence or argument in connection with the objections unless such participation was granted. Union—International Union, United Automobile, Aerospace and Agricultural Implement Workers America—UAW. Members Miscimarra, Hirozawa, and Johnson participated.
C Cases
Midwest Division – MMC, LLC d/b/a Menorah Medical Center (17-CA-088213 and 091912) Overland Park, KS, April 16, 2014. The Board granted the motion of the American Hospital Association, the Kansas Hospital Association, the Texas Hospital Association and the Texas Nurses Association to file an amici curiae brief in this case.
Nexeo Solutions, LLC (13-CA-046694, et al.) Willow Springs, IL, April 16, 2014. The Board granted the parties’ joint motion to sever Cases 13-CA-046694 and 13-CA-062072 from Case 20-CA-035519, and to remand the two severed cases to the Regional Director for further appropriate action, in light of the withdrawal of pending exceptions for those two cases. The exceptions in Case 20-CA-035519 remain pending before the Board for consideration.
General Steel Drum, LLC and Myers Container, LLC, Joint Employers (10-CA-115129) Charlotte, NC, April 16, 2014. The Board denied the Employer’s petition to partially revoke a subpoena duces tecum. The Board found that the subpoena sought information relevant to the matters under investigation and described with sufficient particularity the evidence sought. Further, the Board found that the Employer failed to establish any other legal basis for revoking the subpoena. Charge filed by International Brotherhood of Teamsters, Local 71. Members Miscimarra, Hirozawa and Johnson participated.
Hospital of Barstow, Inc. d/b/a Barstow Community Hospital (31-CA-111867) Barstow, CA, April 16, 2014. The Board denied the Employer’s petition to revoke a subpoena duces tecum. The Board found that the subpoena sought information relevant to the matters under investigation and described with sufficient particularity the evidence sought. Further, the Board held that the Employer failed to establish any other legal basis for revoking the subpoena. Charge filed by California Nurses Association/National Nurses Organizing Committee (CNA/NNOC). Members Miscimarra, Hirozawa and Johnson participated.
Ampersand Publishing, LLC d/b/a Santa Barbara News-Press (31-CA-029759, et al.) Santa Barbara, CA, April 17, 2014. The Board denied the Respondent’s motion to dismiss the Complaint. Charges filed by Graphic Communications Conference, International Brotherhood of Teamsters. Members Miscimarra, Hirozawa, and Johnson participated.
Cushman and Wakefield, Inc. (04-CA-094600 and 102858) Newark, DE, April 18, 2014. No exceptions having been filed to the Administrative Law Judge’s findings that the Respondent engaged in certain unfair labor practices, the Board adopted the Judge’s findings and conclusions, and ordered the Respondent to take the action set forth in the Judge’s recommended Order. Charges filed by an individual. Administrative Law Judge Susan A. Flynn issued her decision on March 5, 2014.
Part of our U.S. labor history……
April 19, 2014
The Ludlow Massacre Still Matters
Posted by Ben Mauk
On April 20, 1914, members of the Colorado National Guard opened fire on a group of armed coal miners and set fire to a makeshift settlement in Ludlow, Colorado, where more than a thousand striking workers and their families were camped out. Today, the Ludlow massacre, which Caleb Crain wrote about in The New Yorker in 2009, remains one of the bloodiest episodes in the history of American industrial enterprise; at least sixty-six men, women, and children were killed in the attack and the days of rioting that followed, according to most historical accounts. Although it is less well-remembered today than other dark episodes in American labor history, such as the Triangle Shirtwaist Factory fire that claimed a hundred and forty-six lives, the Ludlow massacre—which Wallace Stegner once called “one of the bleakest and blackest episodes of American labor history”—changed the nation’s attitude toward labor and capital for the next several decades. Its memory continues to reverberate in contemporary political discourse.
In the summer of 1913, United Mine Workers began to organize the eleven thousand coal miners employed by the Rockefeller-owned Colorado Fuel & Iron Company. Most of the workers were first-generation immigrants from Italy, Greece, and Serbia; many had been hired, a decade prior, to replace workers who had gone on strike. In August, the union extended invitations to company representatives to meet about their grievances—including low pay, long and unregulated hours, and management practices they felt were corrupt—but they were rebuffed. A month later, eight thousand Colorado mine workers went on strike. Among their demands were a ten-per-cent pay raise, the enforcement of an eight-hour working day, and the right to live and trade outside the company-owned town. Many of the rights they sought were required by Colorado law but remained unenforced.
After getting evicted from their company-owned homes, the workers based their operations in makeshift tent cities surrounding the mines, the largest of which was the Ludlow camp. The Rockefellers responded by hiring a detective agency—comprised of “Texas desperadoes and thugs,” according to “Legacy of the Ludlow Massacre,” a sharply researched 1988 book by Howard M. Gitelman—who would periodically raid the camps, firing rifles and shotguns. In November, the state governor called in the Colorado National Guard at the company’s behest; the Guard’s wages were supplied by the Rockefeller family, and they helped to form militias whose members carried out sporadic raids and shootings in the tent cities.
The strike stretched on for months, and in April, 1914, John D. Rockefeller, Jr., appeared before Congress, where he framed the standoff as “a national issue, whether workers shall be allowed to work under such conditions as they may choose.” He balked at the possibility of allowing “outside people”—meaning union organizers—“to come in and interfere with employees who are thoroughly satisfied with their labor conditions.” The committee chairman asked Rockefeller whether he would stand by his anti-union principles even “if it costs all your property and kills all your employees.” Rockefeller replied, “It is a great principle.”
On April 20th, a day after Orthodox Easter, four militiamen brandished a machine gun at some of the striking miners. At some point, shots were fired—the accounts are predictably inconsistent as to who fired first—and a day-long gunfight ensued.
That evening, the National Guardsmen set fire to the Ludlow colony. Thirteen residents who tried to flee were shot and killed as the camp burned to the ground, and many more burned to death. Discovered among the ruins the following morning was a women’s infirmary, where four women and eleven children had sought to escape the fighting by hiding in a cellar-like pit. All the children and two of the women died. One survivor, Mary Petrucci, lost three of her own children in the infirmary. Years later, she recalled, “I came out of the hole. There was light and lots of smoke. I wandered among the ashes until a priest found me. I couldn’t feel anything. I was cold.”
News of the attack—and especially of the deaths under the infirmary tent—pulled the nation’s attention from the United States’ potential involvement in the Mexican Revolution. To many Americans, the massacre exposed the consequences of unchecked corporate might, and it roused the conscience of a country that had previously demonstrated impassive ambivalence toward organized labor. (Decades later, a song by Woody Guthrie captured the common sentiment of the event’s immediate aftermath: “We took some cement and walled the cave up where you killed these thirteen children inside / I said ‘God bless the Mine Workers Union,’ then I hung my head and cried.”)
Two days later, Congress convened to discuss the events at Ludlow, and to consider how the government might check martial power wielded by private industrialists. One senator, Iowa’s “radical Republican,” William Kenyon, decried the government’s ties to the violence, noting that “the Colorado Fuel & Iron Company, or the company controlling it, has certain of its bonds on deposit with the General Education Board of the Rockefeller Foundation, with which the Department of Agriculture of our Government seems to have been in partnership for some little time.” Another senator expressed a broader concern: “I fear that unless society can in some manner reconcile these troubled conditions as between capital and labor, Mexico is not the only country that will be torn by internecine strife.”
Rockefeller, for his part, released a memorandum in June, months after federal troops had been ordered to Colorado to quell the days of violent rioting that had followed the events of April 20th. “There was no Ludlow massacre,” he wrote. “The engagement started as a desperate fight for life by two small squads of militia … against the entire tent colony, which attacked them with over three hundred armed men.” He also offered a lengthy technical explanation of why the deaths in the infirmary were the result of inadequate ventilation and overcrowding, not of actions taken by “the defenders of law and property, who were in no slightest way responsible for it.”
Despite Rockefeller’s arguments, after Ludlow the Wild West era of company towns began to wane, and stricter labor laws began to appear on the books—and were even enforced. Support for unions reached an all-time high in the nineteen-thirties, as described by James Surowiecki in a 2011 article for the magazine. Yet, as Surowiecki also noted, the influence of trade unions, which supplanted company unions following the 1935 Wagner Act, has been declining for decades, as part of a general rightward shift in American politics which began in the sixties. Since the 2008 recession, there has been growing resentment for union members among non-unionized workers; in 2010, support for unions reached a historic low, according to a Pew poll.
April 24, 2014
Oil industry scrambles to retrofit rail cars
By SHAWN MCCARTHY and ERIC ATKINS
Energy executives say shop space is too limited in U.S. and Canada to upgrade, build new equipment
Oil producers in Canada and the United States could see their plans for aggressive expansion of crude-by-rail short-circuited if American regulators follow Ottawa’s lead and force the industry to retire or retrofit tank cars built before 2011.
Industry officials warn that the railway supply industry will have a hard time meeting the rising demand for new cars while retrofitting existing ones that are seen as vulnerable to leakage and explosions during accidents involving crude-laden freight trains.
At a National Transportation Safety Board hearing in Washington this week, an American oil executive suggested that the older rail cars could be needed for the next decade if the industry is going to meet the challenge of moving booming crude production to markets.
Lee Johnson – an adviser to Hess Corp. who was representing the American Petroleum Institute – said the industry will have to rely more on new tank cars that will have to meet as-yet-unknown U.S. standards rather than retrofitted ones.
“We’re going to move as an industry to enhance the legacy cars as quickly as we can and to replace them as quickly as we can,” Mr. Johnson said. “But the reality of the marketplace is that there is very limited shop capacity for doing retrofits.”
Two of Canada’s biggest oil sands producers said Thursday that they are well positioned to manage any crunch because they are acquiring heated cars to move bitumen, and those cars typically are either being built or are newer models that meet current safety standards.
“We’re okay,” said Rhona DelFrari, spokeswoman for Cenovus Energy Inc., which is acquiring 825 cars to move 30,000 barrels per day – mostly oil sands bitumen – by rail by the end of the year. Imperial Oil Ltd. said the new regulations would have little effect on its joint venture with Kinder Morgan Inc. to build a 100,000-barrel-a-day rail terminal near Edmonton, because it is acquiring new rail cars.
But light-oil producers in the U.S. and Canada rely more heavily on the older DOT-111 cars that Transport Minister Lisa Raitt has targeted for replacement or retrofitting.
Shippers looking to buy rail cars are already facing a two-year backlog in some markets, said Steve Smith, chief operating office for TORQ Transloading Inc., which is building a 168,000-barrels-a-day crude-by-rail terminal in Kerrobert, Sask. He said TORQ’s business shouldn’t be affected because it handles oil sands crude that is shipped in mostly newer cars.
But he said Canadian light-oil producers could be hurt as the industry is forced to scramble for rail cars.
The Canadian Association of Petroleum Producers is worried that governments in Canada and the United States are not moving in unison on the rail safety measures.
“These shipments do cross the borders, so we have said and continue to advocate that there be a harmonized approach to things,” David Pryce, CAPP’s vice-president for operations, said in an interview. He said it is “too early to tell” what impact Transport Canada’s new regulations would have on shippers.
The stricter Canadian regulations and smaller supply of rail cars could boost the leasing rates paid by companies that ship oil by rail and encourage them to look for other ways to move oil, said Benoît Poirier, a stock analyst with Desjardins Securities.
The vast majority of the tank cars hauled by the two major Canadian railways are leased or owned by energy producers.
Both Canadian National Railway Co. and Canadian Pacific Railway Ltd. charge oil shippers more to use older cars, an “economic incentive” to upgrade to the cars that have reinforced shells and protective shields.
“CN has supported the retrofitting or phase-out of the old DOT-111 cars used to transport flammable liquids and a reinforced standard for new tank cars built in the future, with the rail car owners assuming the cost as a normal course of business,” spokesman Mark Hallman said.
Hunter Harrison, chief executive officer of CP, said capping speeds for trains carrying dangerous cargo at 80 kilometres an hour does not address the causes of railway accidents. CP, which has video cameras on the nose of most locomotives, is calling for cameras that record the train crew, as well as a reduction in the number of crossing at which road and train traffic meet.
With a file from reporter Carrie Tait in Calgary