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Labor Relations News Update January 30, 2015

Today’s Labor Updates:

Summary of NLRB Decisions for Week of January 20 – 23, 2015

The Chinese Labor Problem

Will A Union Strike At U.S. Oil Refineries Cause Gas Prices To Shoot Up?

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Summary of NLRB Decisions for Week of January 20 – 23, 2015

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 (link sends e-mail) or 202‑273‑1991.

Summarized Board Decisions

Tekweld Solutions, Inc.  (29-CA-138172; 361 NLRB No. 164)  Farmingdale, NY, January 22, 2015.

The Board granted the General Counsel’s motion for summary judgment in this Sec. 8(a)(5) refusal-to-bargain, test-of-certification case on the ground that the Respondent did not raise any issues that were not, or could not have been, litigated in the underlying representation case in which the Union was certified as the bargaining representative.  Charge filed by Warehouse Production Sales and Allied Service Employees Union, Local 811.  Members Miscimarra, Hirozawa, and Johnson participated.

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Manor at St. Luke Village Facility Operations, LLC d/b/a The Manor at St. Luke Village and The Pavilion at St. Luke Village Facility Operations, LLC d/b/a The Pavilion at St Luke Village  (04-CA-114317 and 04-RC-101711; 361 NLRB No. 99)  Hazelton, PA, January 22, 2015.  Correction to Decision issued December 16, 2014.  Errata   Amended Decision

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

FedEx Freight, Inc.  (06-RC-141025)  Bridgeport, West Virginia, January 20, 2015.  Order denying the Employer’s Request for Review as not raising substantial issues regarding whether the Regional Director erred in directing an election in a unit consisting of the City and Road Drivers employed at the Employer’s Bridgeport Terminal.  Member Johnson agrees that the unit is appropriate, but would rely on the Board’s traditional community of interest analysis and not express a view on the correctness of Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011)(subsequent history omitted), and whether the Regional Director correctly applied it here.  Petitioner—International Brotherhood of Teamsters Local 175.  Chairman Pearce and Members Hirozawa and Johnson participated.

Atlas Roll-Off Corp.  (29-RC-114120)  Jamaica, New York, January 20, 2015.  The Board found merit in the Petitioner’s objection and set aside the rerun election held on September 3, 2014 (a prior election was held on November 20, 2013, but was set aside based on the Petitioner’s objection).  The Board agreed with the Regional Director’s Supplemental Report that the list of eligible voters provided by the Employer was missing 32% of the voters and thus was not in compliance with the Board’s rule set out in Excelsior Underwear, Inc., 156 NLRB 1236 (1966).   Because the revised tally of ballots showed 8 votes for and 12 against the Petitioner, with 1 challenged ballot, the Board found that the election should be set aside and a third election held.  The Board remanded the case to the Regional Director for further appropriate action.  Petitioner—Local 175, United Plant & Production Workers, International Union of Journeymen and Allied Trades.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Covanta Honolulu Resource Recovery Venture  (20-RC-140392)  Honolulu, HI, January 20, 2015.  A Board panel majority consisting of Chairman Pearce and Member Hirozawa granted the Employer’s request for special permission to appeal the Regional Director’s direction of a mail ballot election, but denied the appeal on the merits because they found that the Regional Director did not abuse his discretion.  Member Miscimarra, dissenting, would find that the ordering of the mail ballot election constituted an abuse of discretion.  In the same Order, the Board panel unanimously denied the Employer’s Request for Review of the Acting Regional Director’s Decision and Direction of Election on the ground that it raised no substantial issues warranting review.  Member Miscimarra agreed with the denial of review but would apply traditional community of interest standards, and not Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011)(subsequent history omitted).  Petitioner—International Brotherhood of Electrical Workers, Local Union 1260.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

FedEx Freight, Inc.  (10-RC-136185)  Charlotte, NC, January 21, 2015.  The Board denied the Employer’s Request for Review as not raising substantial issues regarding whether the Regional Director erred in overruling of the Employer’s objections, which alleged that a Board agent improperly allowed a late-arriving employee to cast an unchallenged ballot.  Petitioner—International Brotherhood of Teamsters, Local 71.  Chairman Pearce and Members Hirozawa and Johnson participated.

Sheraton Sonoma County – Petaluma  (20-UD-121645)  Petaluma, CA, January 21, 2015.  A Board panel majority consisting of Chairman Pearce and Member Hirozawa denied the individual Petitioner’s Request for Review as not raising substantial issues regarding whether the Acting Regional Director erred in overruling the Petitioner’s objections.  The objections alleged that the Union called the Petitioner a racist to sway the vote in its favor and the Union distributed a flyer using the photographs of employees and indicating their support for the Union without their consent.  Member Miscimarra, in dissent, stated that he would grant review of the objection concerning the Union’s flyer that included individual pictures of 48 employees with a caption stating, “WE ARE VOTING NO!”, allegedly distributed without the consent of at least some of the pictured employees.  Member Miscimarra would find objectionable a union’s disclosure of employees’ intended votes without their express consent.  Petitioner—An  individual.  Union involved—UNITE HERE! Local 2850.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Horseshoe Hammond, LLC  (13-RC-140853)  Hammond, IN, January 21, 2015, Order denying the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election.  The Regional Director found that the senior entertainment technician is not a statutory supervisor, and therefore the position of senior entertainment technician is appropriately included in the unit of all full-time entertainment technicians.  Petitioner—International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its Territories, and Canada, Local 125.  Members Miscimarra, Hirozawa, and Johnson participated.

Merrimack College  (01-RC-139931)  Andover, MA, January 21, 2015.  Order denying the Petitioner’s Request for Review as not raising substantial issues regarding whether the Regional Director erred in excluding sergeants as supervisory employees from an election unit consisting of the employees of the Employer’s police department.  Petitioner—American Coalition of Public Safety (ACOPS) Local 18.  Members Miscimarra, Hirozawa, and Johnson participated.

C Cases

International Union of Operating Engineers, Local 4 (JDC Demolition Company, Inc.)  (01-CD-137069 and 01-CD-138333)  Salem, MA, January 20, 2015.  The Board granted the Motion of the Plan for the Settlement of Jurisdictional Disputes in the Construction Industry Leave to File a Brief Amicus Curiae.

Western Michigan Area Local 281, American Postal Workers Union, AFL-CIO (APWU)(United States Postal Service)  (07-CB-134861)  Grand Rapids, MI, January 21, 2015.  The Board denied the Respondent’s motion for summary judgment, finding that the Respondent had failed to establish that there are no genuine issues of material fact and that it was entitled to judgment as a matter of law.  Charge filed by an individual.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Appellate Court Decisions

No Appellate Court Decisions involving Board Decisions to report.

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Administrative Law Judge Decisions

Parkash 751 LLC  (29-CA-114742; JD(NY)-07-15)  Jamaica, NY and Bronx, NY.  Administrative Law Judge Steven Fish issued his decision on January 22, 2015.  Charge filed by Local 670, Retail Wholesale Department Store Union, United Food and Commercial Workers.

American Medical Response Ambulance Service, Inc.  (28-CA-128440; JD(NY)-06-15)  Las Cruces, NM.  Administrative Law Judge Joel P. Biblowitz issued his decision on January 22, 2015.  Charge filed by National Emergency Medical Services Association.

FirstEnergy Generation, LLC  (06-CA-121513; JD-04-15)  Shippingport, PA.  Administrative Law Judge David I. Goldman issued his decision on January 23, 2015.  Charge filed by International Brotherhood of Electrical Workers, Local Union No. 272, AFL-CIO.

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The Chinese Labor Problem

For a leading labor and employment law scholar such as Cynthia Estlund, the ongoing decline of American unions might have seemed like a reason to consider a different field of study. But Estlund, Catherine A. Rein Professor of Law, instead decided to shift her focus to a different continent, and to one of the world’s fastest-growing and most politically delicate economies: China.

Five years ago, Estlund began devoting the bulk of her research efforts to the evolving labor relations scene in China. “The rise of strikes and the government’s many-faceted efforts to figure out how to deal with rising labor unrest were very evocative and dramatic to me,” says Estlund. “They raised really interesting questions about what’s going on in China, and how it’s similar to and different from what happened in our country in the New Deal period, when labor activism was surging and our current labor law regime began to take shape.”

As China has modernized its economy, workers have begun to agitate more strongly for increased wages, improved labor standards, and a voice in decisions about those matters. The country’s sole labor union, the All-China Federation of Trade Unions, is recognized by many as an appendage of the Communist Party and, at the plant level, submissive to management. Its mission is more to placate the workforce than to respond to workers’ needs. (In China, the companies themselves largely fund the union, and their managers often lead the union chapter; both practices would be unlawful in the US.)

This past December, Estlund made her 13th trip to China since embarking on her research. In her travels around the People’s Republic she has spoken with scholars, government and union officials, and Communist Party intellectuals. Estlund is using the comparative lens of American experiences with industrial conflict and industrial relations reform to illuminate the problem of labor unrest and the Chinese government’s responses to it. With Seth Gurgel ’09, a former research fellow of the US-Asia Law Institute, she has already published a book chapter, “Will Labor Unrest Lead to More Democratic Trade Unions in China?,” in a recent book on Chinese labor law. Another article, “Will China’s Workers Have a Voice in the Socialist Market Economy? The Curious Revival of the Worker Congress System,” is forthcoming. And a book, tentatively titled A New Deal for China’s Workers?, is in the works. As the titles suggest, Estlund has found the questions gripping, even if the answers are elusive.

One major difference between the US and China is that China is committed to maintaining its monopolistic, party-controlled union structure, while unions in the US, for all their troubles, are independent of the government. China has been trying to address workers’ grievances. “Clearly in part they’re trying to mollify workers so that they won’t be up in arms, demonstrating and striking,” Estlund explains. “They’re trying to nudge their economy higher up the supply chain, and to build up consumers’ purchasing power. They’re trying to do a lot of things that will make workers better off, but one of the things they’re clearly trying to do is to prevent workers from getting so fed up that they feel like they need to form their own unions.”

Workers’ growing bargaining power has led to significant public labor unrest prompting international headlines in recent years—including a string of employee suicides at Foxconn and widespread strikes at Honda factories. Thus far China has defied outside expectations by generating stunning economic growth and modernization without moving toward democracy, and without opening up significant space for independent labor activism, which historically has been linked with democratization. Estlund is interested in the dilemmas that China faces in seeking to solve the problem of labor unrest without allowing workers to form independent unions.

“How does top-down control by the Chinese Communist Party affect the union’s ability to actually represent the workers?” she asks. “And if the union can’t represent the workers, how is it supposed to help the government get a handle on collective unrest? One thing unions do is channel and cabin industrial unrest and collective action. A union that the workers don’t trust is not in a good position to do that—it can’t regulate the scope and timing of strikes. So that’s one of the problems they face.”

Estlund recognizes that some union officials in certain regions are genuinely trying to implement reforms and deliver gains to workers. But she notes that the space for independence and reform in the union was much greater before the Party clamped down and reasserted hierarchical control of the union in the wake of the Tiananmen Square protests a quarter century ago.

Comparisons between US labor conditions in the first decades of the 20th century and the Chinese workforce’s current issues are interesting and useful in some ways but potentially misleading in other ways, Estlund asserts. American workers’ unrest disrupted the economy and posed a real challenge to social order, far beyond what Chinese workers’ protest have thus far done, but in the United States, employees had a voice that those in China do not: the vote. The commitment to one-party rule, along with the continuing denial of  a political outlet for worker frustrations, means that the Chinese government finds protest much more threatening than in democratic societies. On the other hand, repression has its own risks; the government does not always crack down as hard as it could for fear of inflaming tensions.

Despite the dysfunctions of the current system, Estlund is impressed by what China has accomplished, and she remembers feeling awe on her first visit. “I couldn’t believe the airport, the subway, because all this just came out of nowhere,” she recalls. “It was a closed, poor, totalitarian society until 1976. The economy and institutions of governance were in shambles after the chaos of the Cultural Revolution. It’s just remarkable that, since then, they’ve brought hundreds of millions of people out of poverty. Something like 75 percent of the worldwide reduction in poverty over the last 20 years was in China. They have been much more successful in that regard than democratic India. So however critical we might be of some things they do, we do have to balance that picture a little bit. They have significantly reduced the level of human misery in the world. We have a lot to learn from China about political and economic development in the modern world.”

Posted January 28, 2015

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Posted by Editor on January 28, 2015 at 9:24 pm

Will A Union Strike At U.S. Oil Refineries Cause Gas Prices To Shoot Up?

Americans, who are beginning to see relief in their budgets due to low gas prices, may soon be in for a shock at the gas pumps.

The United Steelworkers are in the midst of negotiating a new industry-wide contract affecting 30,000 refinery workers.

Without a new agreement in place by Sunday at 12:01 a.m., the Steelworkers may call its members out on strike.

If a strike does occur, and depending on its length, consumers may end up seeing gas prices rise once again–since a strike would affect 63 percent of domestic fuel production.

According to the Houston Chronicle:

Labor negotiators for 30,000 energy workers, including 5,000 in the Houston area, instructed members of its bargaining units to reject the latest contract proposal from Shell Oil Co., according to a text message alert Tuesday from the United Steelworkers union.

“Oil Industry’s 2nd proposal falls FAR short-Inadequate & fails to address any key concerns of membership,” according to the text sent by labor negotiators from the union. Details of the offer weren’t available.

On Friday, the union rejected Shell’s first contract proposal, according to a text message calling it “offensive.” Shell is the lead negotiator, acting on behalf of the energy industry nationwide, for talks covering 233 sites including refineries, pipelines, oil terminals and petrochemical plants. Current contracts end Sunday at 12:01 a.m. for the majority of union-represented sites, including 19 locally.

A strike by refinery workers would be the first for the industry since a three-month stoppage in 1980, according to Manufacturing.net.

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