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Labor Relations News Update June 6, 2014

Today’s Labor Updates:

Summary of NLRB Decisions for Week of May 27 – 30, 2014

Select events and news from the world of organized labor


Summary of NLRB Decisions for Week of May 27 – 30, 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 or 202‑273‑1991.

Summarized Board Decisions

Mi Pueblo Foods  (32-CA-064836; 360 NLRB No. 121)  Northern California, May 28, 2014.

In the absence of exceptions, a unanimous Board panel adopted the Administrative Law Judge’s finding that the Respondent unlawfully threatened an employee that he would likely not be promoted if the Union came in and interrogated two employees on separate occasions about their union sympathies.  The Board also adopted the judge’s recommended cease and desist order and order requiring that the Respondent post the Board’s notice at the Respondent’s California retail stores.  Charge filed by United Food and Commercial Workers Union, Local 5.  Administrative Law Judge Mary Miller Cracraft issued her decision on June 21, 2012.  Chairman Pearce and Members Hirozawa and Johnson participated.


Plaza Auto Center, Inc.  (28-CA-022256; 360 NLRB No. 117)  Yuma, AZ, May 28, 2014.

Following a remand from the United States Court of Appeals for the Ninth Circuit that instructed the Board to reapply the four-factor Atlantic Steel, 245 NLRB 814 (1979), test for determining when an employee’s outburst during protected activity costs the employee the protection of the Act, a Board panel majority consisting of Chairman Pearce and Member Hirozawa found that an employee did not lose the protection of the Act by his outburst and, accordingly, that the Respondent unlawfully discharged him for engaging in protected concerted activity.  Member Johnson, dissenting, would have found that the employee’s outburst caused him to lose the Act’s protection, and that the Respondent therefore did not violate the Act by discharging him.  Charge filed by an individual.  Administrative Law Judge Lana H. Parke issued her decision on July 21, 2009.  Chairman Pearce and Members Hirozawa and Johnson participated.


Greenbrier VMC, LLC, d/b/a Greenbrier Valley Medical Center  (10-CA-094646; 360 NLRB No. 127)  Ronceverte, WV, May 29, 2014.

A Board panel majority consisting of Chairman Pearce and Member Hirozawa adopted the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(3) and (1) by issuing a written warning and performance improvement plan to an employee, and by changing his work schedule because of his activities in support of National Nurses Organizing Committee, AFL-CIO.  Member Johnson joined his colleagues in finding the issuance of the performance improvement plan and schedule change unlawful, but disagreed that the written warning, not specifically alleged in the complaint, was properly before the Board for consideration.  Charge filed by National Nurses Organizing Committee, AFL-CIO (NNOC).  Administrative Law Judge Robert A. Ringler issued his decision on January 23, 2014.  Chairman Pearce and Members Hirozawa and Johnson participated.


Flex Frac Logistics, LLC and Silver Eagle Logistics, LLC, Joint Employers  (16-CA-027978; 360 NLRB No. 120)  Fort Worth, TX, May 30, 2014.

The Board affirmed the judge’s finding on remand from the Board that the Respondent lawfully discharged an employee even though it was pursuant to an overbroad work rule.  Applying Continental Group, 358 NLRB No. 39 (2011), the Board reasoned that although the employee’s conduct arguably implicated the concerns underlying Section 7 of the Act, any chilling effect on employees would be minimal because the Respondent plainly discharged her for her gross misconduct of deliberately betraying the Respondent’s clear confidentiality interests and harming the company.  Member Miscimarra, agreeing with the outcome, would not have applied Continental Group because, in his view, the unprotected nature of the employee’s conduct meant her discharge was lawful whether or not the Respondent applied an overbroad rule.  Charge filed by an individual.  Administrative Law Judge Margaret G. Brakebusch issued her supplemental decision on January 28, 2013.  Members Miscimarra, Hirozawa, and Schiffer participated.


Local 560, International Brotherhood of Teamsters (County Concrete Corporation)  (22-CC-068160, et al.; 360 NLRB No. 125)  Jersey City and Hanover, NJ, May 30, 2014.

A Board panel majority consisting of Chairman Pearce and Member Johnson adopted the Administrative Law Judge’s conclusion that the Respondent Union violated Section 8(b)(4)(ii)(B) by unlawfully enmeshing neutral employer Sharp Concrete Corporation in the Union’s area standards dispute with County Concrete Corporation.  Although the Union notified Sharp by letter that it would comply with the relevant law governing picketing and target only County Concrete, the Board agreed with the judge that, in a telephone conversation to Sharp, the Union made inconsistent and unlawful threats that it would picket Sharp in furtherance of its dispute with County.  Member Hirozawa dissented. In his view, the Union’s telephone statements neither modified nor negated the lawful assurances in its letter that it sought only to apply pressure against primary employer Country Concrete.  A different panel majority consisting of Chairman Pearce and Member Hirozawa reversed the judge and found that the Union did not violate Section 8(b)(4)(ii)(B) by unlawfully enmeshing neutral employer Macedos Construction LLC in its dispute with Country Concrete.  Unlike with Sharp, the Board panel majority found that nothing in the Union’s conversations with Macedos conflicted with or negated the lawful message in the Union’s letter to Macedos that the sole purpose of any picketing would be primary.  Member Johnson dissented.  In his view, the Union’s various statements to Macedos demonstrated an unlawful secondary objective of enmeshing Macedos in the Union’s dispute with County Concrete.  Charge file by County Concrete Corporation.  Administrative Law Judge Lauren Esposito issued her decision on February 15, 2013.  Chairman Pearce and Members Hirozawa and Johnson participated.


Magnum Transportation, Inc.  (13-RC-113924; 360 NLRB No. 129)  Chicago, IL, May 30, 2014.

The Board adopted the hearing officer’s recommendations to sustain a challenge to a determinative ballot and overrule objections to an election held on November 8, 2013.  The Board found no evidence that the Board agent engaged in misconduct.  Accordingly, the Board certified the Petitioner—Excavating, Grading, Asphalt, Private Scavengers and Recyclers, Automobile Salesroom Garage Attendants, Linen and Laundry and Machinery, Scrap Iron, Steel and Metal Trade Chauffeurs, Handlers, Helpers and Allot Fabricators, Teamsters Local Union No. 731—as the exclusive collective-bargaining representative of the petitioned-for unit employees.  Members Miscimarra, Hirozawa, and Schiffer participated, with Member Miscimarra concurring.


Metro-West Ambulance Service, Inc.  (36-CA-010801, et al.; 360 NLRB No. 124)  Hillsboro, OR, May 30, 2014.

The Board adopted the judge’s findings that the Respondent unlawfully took several adverse actions up to and including the discharge of the lead union adherent among its employees.  Specifically, in October 2010, the Respondent violated Sec. 8(a)(3) and (1) of the Act by suspending, demoting, and issuing a corrective action plan to the discriminatee based on perceived, sarcastic comments he made about the need for a union to a supervisor and in the presence of a trainee. It violated Sections 8(a)(3), (4), and (1) of the Act by extending the dischargee’s corrective action plan in March 2011 because he engaged in union activities and filed Board charges; putting him on a performance improvement plan in July 2011; issuing to him and a coworker corrective action memoranda in August 2011; and discharging him  in October 2011. In the absence of exceptions, the Board adopted the judge’s findings that the Respondent violated Sec. 8(a)(1) of the Act by engaging in surveillance of employees’ union activities or to determine their union activities; enforcing rules prohibiting employees from wearing union pins and remaining on the property after shift; interrogating employees about union activities; and threatening an employee about his future prospects with the company because of his union support.  The Board also adopted the judge’s dismissal of allegations that the Respondent unlawfully suspended the discharged discriminatee and issued discipline to another for a delay in picking up a nonemergency patient from the hospital in October 2011. Member Johnson did not join his colleagues in finding that the Respondent unlawfully put the discriminatee on a performance improvement plan in July 2011.  As for the October 2010 adverse actions, Member Schiffer found that the discriminatee was engaged in protected and union activities when he made his comments about a union. Members Miscimarra and Johnson noted that some of the discriminatee’s past performance deficiencies could reasonably have warranted his discharge, but that the Respondent failed to carry its burden under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982) to show that it would have discharged him were it not for his protected and union activities.  Charges filed by Teamsters Joint Council #37, International Brotherhood of Teamsters, and Teamsters Local #223, International Brotherhood of Teamsters. Administrative Law Judge Eleanor Laws issued her decision on November 9, 2012.  Members Miscimarra, Johnson, and Schiffer participated.


Food Services of America, Inc., a subsidiary of Service Group of America, Inc.  (28-CA-063052; 360 NLRB No. 123)  Scottsdale, AZ, May 30, 2014.

A Board panel majority, consisting of Members Hirozawa and Schiffer, reversed the Administrative Law Judge and found that the Respondent unlawfully discharged an employee for engaging in the protected concerted activity of warning a coworker that she was in danger of being discharged for poor work performance.  Dissenting in relevant part, Member Miscimarra would have found that the employee’s conduct was unprotected because she simultaneously made statements to the coworker that Member Miscimarra found subverted their supervisor’s authority.  In addition, the Board panel unanimously adopted the judge’s recommendation to dismiss a complaint allegation that the Respondent unlawfully discharged another employee for forwarding hundreds of business emails to the first discharged employee.  The Board found that the mass email transfer was unprotected by the Act because many of the messages contained confidential business information.  The Board separately found that the Respondent violated Section 8(a)(1) of the Act by maintaining an overly restrictive no-solicitation policy and by threatening employees with unspecified reprisals were they to engage in protected concerted activities.  The charge was filed by an individual. Administrative Law Judge Joel P. Biblowitz issued his decision on March 27, 2012.  Members Miscimarra, Hirozawa, and Schiffer participated.


LAX Hilton Hotel (Fortuna Enterpreises, L.P. a Delaware Partnership d/b/a The Los Angeles Airport Hilton Hotel and Towers)  (31-CA-027837; 360 NLRB No. 128)  Los Angeles, CA, May 30, 2014.

On remand from the D.C. Circuit Court of Appeals, the Board reaffirmed an earlier Board’s finding that the Respondent violated Section 8(a)(1) of the Act by suspending and threatening to suspend employees for engaging in a protected on-site work stoppage.  Member Johnson concurred in the result, but wrote separately to express his view that the majority failed to give adequate weight to the availability of the employer’s “Open Door” policy as an alternative means for employees to present their grievance.  Charges filed by UNITE HERE, Local 11.  Chairman Pearce and Members Johnson and Schiffer participated.


Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Go New York Tours, Inc.  (02-RC-116354)  New York, NY, May 28, 2014.  The Board adopted the Regional Director’s recommendation to sustain objections to an election, which alleged that the Employer submitted an incomplete list of eligible voters names and addresses, omitting approximately 10 percent of employee names and 70 percent of employee addresses, one day after the due date; and the Employer submitted an untimely revised eligibility list, no earlier than 8 days prior to the election.  Accordingly, the Board adopted the Regional Director’s recommendation to set aside the election and direct a second election.  Petitioner—United Construction Trades and Industrial Employees Union, Local 621.  Chairman Pearce and Members Johnson and Schiffer participated.

Exposition Storage Services, LLC  (28-RC-109730)  Las Vegas, NV, May 28, 2014.  A Board panel majority consisting of Chairman Pearce and Member Hirozawa adopted the hearing officer’s findings and recommendations to sustain the challenges to four ballots cast in a representation election.  The Board adopted the hearing officer’s findings that the individuals who cast the challenged ballots were not seasonal employees.  The panel majority stated that, absent special circumstances, it evaluated the question of whether those individuals were eligible as casual employees under the standard formula set out in Davison-Paxon Co., 185 NLRB 21 (1970).  The panel majority found that none of the voters in question were eligible under that formula, and that the Employer had shown no special circumstance that would warrant deviating from the formula.  Accordingly, the panel majority certified the Petitioner Union as the exclusive collective-bargaining representative of the employees in the appropriate unit.  Member Miscimarra stated that he would apply a modified version of the Davison-Paxon test, and would remand to the Region for a determination of whether two of the individuals who cast challenged ballots were eligible under that modified test.  Petitioner—Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union No. 631 affiliated with International Brotherhood of Teamsters.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

United Rentals North America  (14-RC-126113)  Cape Girardeau, MO, May 28, 2014.  The Board found that the Employer’s request for review of the Regional Director’s Decision and Direction of Election raised a substantial issue solely with respect to the inclusion of the outside sales representative in the unit found appropriate.  Consequently, the Board amended the Decision and Direction to exclude the outside sales representative employed at the Employer’s Cape Girardeau facility from the unit.  The Board found that the reluctance to exclude a single employee from an otherwise appropriate unit expressed in United Rentals, 342 NLRB 540, 542 fn. 11 (2004), was not a sufficient basis for disregarding the parties’ stipulation to exclude the outside sales representative from the Cape Girardeau unit, citing Carl’s Jr., 285 NLRB 975, 975 fn. 1 (1987).  The Board denied review in all other respects.  In doing so, the Board agreed with the Regional Director that the Employer has failed to rebut the presumption that the single-facility unit of drivers, service technicians, and inside sales representatives employed at the Cape Girardeau facility is appropriate.  The Board did not reach the question of whether the Board’s test in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011), enfd. sub nom. Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013), applied under the circumstances of this case.  Petitioner—International Union of Operating Engineers, Local 513.  Chairman Pearce and Members Hirozawa and Johnson participated.

American Medical Response of Southern California  (21-RC-106534)  Los Angeles, CA, May 29, 2014.  No exceptions having been filed to the Acting Regional Director’s Second Supplemental Decision overruling objections to a second election conducted by mail ballot between February 10 and February 28, 2014, the Board remanded the proceeding to the Regional Director to conduct a runoff election between the two Unions that received the highest and second-highest number of votes cast in the second election among the three Unions on the ballot.  The runoff election will be between Petitioner National Association of Government Employees Affiliated with Service Employees International Union (SEIU/NAGE Local 5000) and Intervenor United Emergency Medical Services Workers, AFSCME Local 4911, AFL-CIO.

FJC Security Services  (22-RC-115634)  Floral Park, NY, May 30, 2014.  A Board panel majority consisting of Members Miscimarra and Johnson denied Intervenor Service Employees International Union, Local 32BJ’s Request for Review of the Regional Director’s Decision and Direction of Election.  The Board panel majority decided that although the Request for Review raised a significant question of statutory interpretation concerning Sec. 9(b)(3) of the Act, it would decline to address the question at this time.  Member Hirozawa, dissenting, would have granted the Request for Review.  Petitioner—Protective Security Officers Association.  Members Miscimarra, Hirozawa, and Johnson participated.

Freudenberg-Nok, General Partnership  (08-RC-107929)  Milan, OH, May 30, 2014.  The Board adopted the hearing officer’s recommendations to sustain the challenges to the ballots of the Employer’s summer associates, finding that they did not share a community of interest with the Employer’s regular full and part-time employees.  Accordingly, the Board found that a majority of the valid ballots have been cast for Petitioner International Union, United Automobile Aerospace and Agricultural Implement Workers of America, and certified it as the exclusive collective-bargaining representative of the employees in the appropriate unit.  Chairman Pearce and Members Hirozawa and Johnson participated.

Great Lakes Elevator  (07-RC-115360)  Williamston, MI, May 30, 2014.  A Board panel adopted the hearing officer’s recommendation to overrule the challenge to the ballot of an employee because he was not shown to be either a supervisor or a manager. Further, in the absence of exceptions, the panel adopted pro forma the hearing officer’s recommendation to overrule the challenge to another ballot.  Accordingly, the Board directed the Regional Director to open and count the two ballots, serve on the parties a revised tally, and issue the appropriate certification.  Petitioner—International Union of Elevator Constructors, AFL-CIO.  Chairman Pearce and Members Johnson and Schiffer participated.

Altech Services, Inc.  (22-RC-114472)  Jersey City, NJ, May 30, 2014.  No exceptions having been filed to the hearing officer’s recommendations that the Employer’s Objection No. 1 be sustained and that the election held on November 12, 2014 be set aside, the Board remanded this proceeding to the Regional Director for further appropriate action, including the conducting of a rerun election.  Petitioner—Transport Workers Union Local 229.

Lake County Farm Bureau Co-Op  (13-RC-124207)  Crown Point, IN, May 30, 2014.  No exceptions having been filed to the Regional Director’s overruling of the challenge to a ballot cast in an election held April 21, 2014, the Board ordered the Regional Director to open and count the challenged ballot, prepare a revised tally of ballots, and issue the appropriate certification.

C Cases

Latrobe Healthcare LLC d/b/a Latrobe Health and Rehabilitation Center  (06-CA-125238) Lancaster, OH, May 27, 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 matter 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 Teamsters Local Union 30 a/w International Brotherhood of Teamsters.  Chairman Pearce and Members Johnson and Schiffer participated.

Vendrite Vending Corp.  (29-CA-122982)  Flushing, NY, May 27, 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 matter 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 an individual.  Chairman Pearce and Members Johnson and Schiffer participated.

Amphenol Griffith Enterprises, LLC  (28-CA-112759)  Cottonwood, AZ, May 27, 2014.  Decision and Order approving a formal settlement stipulation between the Respondent Employer, the Charging Party Union, and the General Counsel, and specifying actions the Respondent must take to comply with the National Labor Relations Act.  Charge filed by International Brotherhood of Electrical Workers, AFL-CIO.  Chairman Pearce and Members Johnson and Schiffer participated.

Apple American Group LLC Applebees, d/b/a Applebees Neighborhood Grill and Bar  (18-CA-103319)  South Saint Paul, MN, May 29, 2014.  The Board granted the Respondent’s motion for reconsideration, and rescinded the Board’s April 22, 2014 Board Order that rejected the Respondent’s exceptions and supporting brief as untimely filed.

International Longshore and Warehouse Union, Local 200, Unit 16  (19-CC-109002)  Ketchikan, AR, May 29, 2014.  Decision and Order approving a formal settlement stipulation between the Respondent Union and the General Counsel, and specifying the actions the Union must take to comply with the National Labor Relations Act.  Charge filed by Southeast Stevedoring Corporation, which did not execute the settlement stipulation and objected to the settlement.  Chairman Pearce and Members Johnson and Schiffer participated.


Appellate Court Decisions

No Appellate Court Decisions involving Board decisions to report.


Administrative Law Judge Decisions

International Longshore and Warehouse Union, AFL-CIO  (19-CC-100903; JD(SF)-24-14) Portland, OR.  Administrative Law Judge Jeffrey D. Wedekind issued his decision on May 30, 2014.  Charges filed by ICTSI Oregon, Inc.



MAY 2014

Select events and news from the world of organized labor

Organizing | Strikes & Labor Disputes | Major Contract Settlements & Negotiations | Administrative, Court & Other Decisions | Legislation & Politics | Crime, Corruption & Other Misdeeds | Miscellaneous | Events |


The National Labor Relations Board (NLRB) conducted 1,377 representation elections in 2013, down slightly from 1,385 in 2012. The union win-rate also stayed essentially the same, with unions winning 882 of representation elections last year, up marginally from 877 wins the year before. In terms of volume, the International Brotherhood of Teamsters (Teamsters) led all unions, participating in 351 representation elections in 2013. But, the Service Employees International Union (SEIU) organized the most workers of any union, gaining 53,472 members in 2013. Teamsters organized the second most, with 7,179 workers, while the International Association of Machinists (IAM) was third with 3,560.

The SEIU is using a “top-down” strategy in an organizing campaign with the California Hospital Association (CHA), threatening to file a ballot initiative the CHA opposes if the CHA refuses to enter a neutrality agreement. Reportedly, provisions of the neutrality agreement proposed by the SEIU include a three-year deal with access to 60,000 non-union employees and the creation of a $100 million “joint advocacy fund.” The CHA has countered by offering a five-year deal with access to 50,000 workers and a $60 million contribution into the joint fund with the other $40 million coming from the union.

A majority of service contractors working at New York City airports signed “commitment cards” indicating support for SEIU representation. The cards are intended to send a message to employers, but have no legal impact. Of the 6,100 contractors targeted by the SEIU, 4,051 signed cards or are already members. Roughly 3,300 of the non-targeted employees are already members of another local or union. The Port Authority of New York and New Jersey, which operates the airports, supports higher wages and benefits for airport service contractors.

Employees at six New York City Verizon Wireless stores voted 39-19 for representation by the Communications Workers of America (CWA). These employees are the first of Verizon Wireless’s 40,000 hourly employees to unionize. The CWA and Verizon previously had a card check agreement between 2000 and 2004, but all organizing efforts during that period failed.

Adjunct faculty at Northeastern University voted 323-286 in favor of representation by the SEIU. The 932-member bargaining unit victory is the third SEIU win among adjunct faculty at Boston-area colleges in the last seven months. The union now represents roughly 21,000 adjunct faculty members nationwide.

Adjunct instructors at the San Francisco Art Institute also voted (124-35) to be represented by the SEIU, following the example of 138 instructors at Mills College in Oakland, Calif. The SEIU and instructors at Mills College are preparing to begin negotiating their first bargaining agreement, and the instructors at the San Francisco Art Institute will next elect a bargaining team and conduct a bargaining survey to determine contract priorities. At the Art Institute, an adjunct’s starting salary is capped at $22,000 annually, and salary increases are discretionary.

Drivers for Uber, an app-based transportation service, have formed the App-Based Drivers Association and affiliated with the Teamsters. The Seattle group also elected a leadership council of seven members, which will meet to establish a mission statement and organizational goals. A Teamsters spokesperson said that the independent contractor drivers were unhappy with Uber’s compensation system, failure to pay for sufficient liability insurance, and alleged failure to follow laws and regulations. Drivers were also concerned with Uber’s practice of ending driver partnerships with no warning or appeal process.

An NLRB regional director determined that resident physicians at New York’s Beth Israel Medical Center were employees, clearing the way for a Committee of Interns and Residents (an affiliate of SEIU) representation election among 410 interns, residents, chief residents, and fellows in the proposed bargaining unit. In reaching this decision, the regional director distinguished the residents from graduate students whose work is a required part of their degree, and rejected the hospital’s contention that modern residents are “learners who perform less actual patient care.”

Strikes & Labor Disputes

SEIU organizers estimate that “thousands” of fast food workers in 150 cities across six continents participated in the 10th and largest walkout protest in their ongoing campaign to raise wages to $15 per hour. Despite the series of walkouts, no major fast food company has opened negotiations with the organizers. The companies, including McDonald’s, Burger King, and Yum Brands, owner of KFC, Taco Bell, and Pizza Hut, responded that they provide hundreds of thousands of entry level jobs each year, complete with training and development, and that the campaign hurts independent small businesses that own and operate individual franchises.

Three hundred Teamsters working at a Pepsi Co. distribution facility in Indianapolis, Ind. Announced that they would be going on strike after the union rejected the company’s latest five-year contract offer. The union says health care and retirement costs remain at issue in negotiations between the two sides.

Local 8 Carpenters at the Pennsylvania Convention center are on strike after contract negotiations fell apart with the center’s management. No further negotiations are currently scheduled between the two sides, and a spokesperson for the center stated that it was unlikely an agreement would be reached in the near future.

Mothers who work at Wal-Mart Stores Inc. are encouraged to strike nationwide during the week of June 2, to coincide with the annual shareholders’ meeting on June 6. Making Change at Walmart organizers are calling for mothers to participate in strikes led by the Organization United for Respect at Walmart (OUR Walmart), a volunteer coalition of workers. The strike is scheduled to take place in more than 20 cities nationwide. Both Making Change at Walmart and OUR Walmart receive support from the United Food and Commercial Workers (UFCW). The groups are seeking to improve working conditions for the company’s hourly workers, including guaranteed annual pay of $25,000, and schedules that allow mothers to work 40 hours a week.

Major Contract Settlements & Negotiations

An analysis of data compiled by Bloomberg BNA through the end of May showed that the average first-year wage increase for all settlements was 1.2 percent, while the median increase was 2.0 percent. For the same period in 2013, both the median and average first-year wage increase was 2.0 percent. Excluding construction, state, and local government, the settlements averages showed an average increase of 2.2 percent and a median increase of 2.5 percent, compared with 2.5 and 2.0 percent in 2013, respectively.

When lump-sum payments were factored into the wage calculations, the all-settlements average for first-year increases was 2.2 percent and the median was 2.0 percent compared with 2.5 and 2.0 percent in 2013, respectively. Excluding construction, state and local government, the average increase was 2.8 percent and the median was 2.7 percent, compared with a 3.5 and 2.5 percent increase in 2013, respectively. Manufacturing settlements increased by an average of 4.2 percent with a median increase of 3.0 percent compared with 2.8 and 2.5 percent in 2013, respectively.

According to Labour Canada statistics, collective bargaining agreements reached in the first quarter of 2014 resulted in average wage increases of 0.7 percent, significantly less than the 1.5 average in the fourth quarter of 2013 and the 2.4 percent increase in the third quarter of 2013. On a sectoral basis, the largest average wage growth was in wholesale and retail trade, education, health and social services, and construction.

SEIU Local 32BJ ratified a four-year contract covering 30,000 apartment-building workers in New York City. Among other provisions, the agreement includes an annual wage increase of 2.71 percent, or 11.3 percent over its term, and maintains existing health care coverage and retirement benefits.

Alcoa and the United Steel Workers (Steelworkers) agreed to a new five-year contract for 6,100 employees at 10 plants in Warrick and Lafayette, Ind.; Point Comfort and Rock Springs, Texas; Davenport, Iowa; Badin, N.C.; Alcoa, Tenn.; Wenatchee, Wash.; Massena, N.Y., and Gum Springs, Ark. The contract guarantees raises of 2.5 percent for each of the first three years and 3 percent for the final two years, retains pensions and health care premium rates (except for a new out-of-pocket maximum for prescription drugs of $3,000 for individuals or $6,000 for a family), and offers new employees pensions rather than 401(k) plans. Alcoa gained flexibility in instituting layoffs, up to 35 employees at a time. If the contract is ratified by June 15, all employees accruing pension service will receive a $1,000 signing bonus. The contract carries the unanimous endorsement of all Steelworkers local presidents and is expected to receive ratification within two weeks.

United Auto Workers (UAW) Locals 5285, 5286, and 3520 ratified a four-year contract with Daimler Trucks covering roughly 4,500 auto workers in three North Carolina parts manufacturing plants. The contract introduces a voluntary employee benefit association (VEBA), a $7,000 ratification bonus, and increases wages for the first time in five years. In years one and three of the contract, workers will receive 3 percent hourly wage increases, while in years two and four, workers will receive a 3 percent lump-sum bonus. The contract also raises the night shift premium to 70 cents and introduces an attendance bonus program where employees may receive up to $450 per quarter. The VEBA, beginning January 1, 2015, will implement a modified retiree medical plan covering future retirees, current retirees (with court approval), and eligible spouses and dependents. Under the VEBA funding plan, Daimler will contribute $480 million plus $2.05 per hour worked by an eligible employee until 2049. As of the ratification date, Daimler has exhausted the recall lists for all three locals and is hiring new employees.

Voting 2,766 to 496, Teamsters members at 12 breweries operated by Anheuser-Busch Cos. LLC ratified a five-year collective bargaining agreement covering 4,500 employees. Under the agreement, the average worker’s base wage begins at $30 per hour and rises to $32.40 per hour over five years. All workers will also receive a $2,500 ratification bonus.

Members of the Writers Guild of America voted to ratify a three-year collective bargaining agreement with the Alliance of Motion Picture and Television Producers, with more than 98 percent of votes cast in favor of the pact. The agreement covers 8,200 writers and includes annual minimum compensation rate increases, increased pension contributions, and a doubling of the theatrical script publication fee.

UNITE HERE affiliate members ratified a five-year agreement with the Golden Nugget Las Vegas, covering 1,200 hotel casino employees. The terms provide that employees will continue to receive family health care coverage without paycheck deductions, as well as introducing new safety provisions for housekeepers and work-rule flexibility in distressed venues.

Members of IAM ratified a revised five-year agreement with L-3 Communications Army Fleet Support LLC in Fort Rucker, Ala., covering 2,924 helicopter maintenance, training, and service personnel. Terms of the pact include a 2 percent annual wage increase, annual increases in employer pension contributions, and slight increases in employee health care premiums over the life of the contract.

Metal Trades Council (MTC) members voted 1,306 to 277 to ratify a 65-month contract covering 2,200 workers. Under the agreement, wages will increase by 3 percent in 2014 and 2015, followed by a 3.5 percent annual increase for each of the next three years. Workers who are at least age 62 can opt to take a voluntary $25,000 severance package. Concessions by the union under the deal include the loss of pensions for first-year employees, as well as a rise in weekly health insurance premiums for all workers.

Transport Workers Union Local 100 members ratified a retroactive five-year contract settlement covering 3,400 New York City Transit Authority Workers. The contract was unanimously approved by the board of the Metropolitan Transportation Authority after 82 percent of the voting members approved the deal. The contract provides for an immediate 4 percent wage increase, full retroactive pay and new health care benefits. Contract talks with unions representing Long Island Rail Road Co. workers remain unresolved.

Members of the UFCW ratified a bargaining agreement covering 60,000 workers at Ralphs, Albertsons and Vons supermarket chains in Southern California. Workers had been under a series of extensions since a previous contract expired in early May. A federal mediator assisted in the negotiation discussions. Details of the new agreements are not yet disclosed.

UFCW Local 655 reached a tentative agreement with St. Louis grocery chains, covering 9,000 workers at Schnuck Markets Inc., Dierbergs stores, and Shop ‘n Save stores. The union sought to ensure continuation of workers’ employment, maintain health care benefits, maintain retirement benefits, and increase earnings. The exact terms of the contract are undisclosed.

UNITE HERE affiliates Culinary Workers Local 226 and Bartenders Union Local 165 reached a tentative agreement with Boyd Gaming Corp., covering 725 casino hotel employees at the Fremont Hotel and Casino and Main Street Station Casino Brewery and Hotel in Las Vegas. The five-year contract was reached five days before an announced strike. Under the terms of the contract, employees will continue to receive family health care coverage without paycheck deductions. The agreement also includes new safety provisions for housekeepers and increased employer contributions to the union health and welfare benefit fund.

UNITE HERE affiliates and the El Cortez Hotel and Casino came to a tentative agreement on a five-year contract days before the Las Vegas workers were scheduled to strike. The agreement covers 212 food and beverage workers, guest room attendants, bell department workers, porters and other non-gaming employees. The contract terms, which track the provisions of contracts reached with the Golden Nugget Las Vegas, the Fremont Hotel and Casino and the Main Street Station Casino Brewery and Hotel, provide for continued health care coverage without paycheck deductions, new safety provisions and a program allowing for rule flexibility in closed and distressed venues.

United Continental Holdings Inc. reached a tentative agreement with the two unions representing dispatchers at both United Airlines and Continental Airlines. The agreement, which is to cover 330 dispatchers, remains subject to ratification. No details of the tentative agreement have been disclosed.

Members of Health Professionals and Allied Employees, an affiliate of the American Federation of Teachers, ratified a three-year agreement with Cooper University Hospital in Camden, N.J., covering about 1,000 nurses. Union members voted to ratify the agreement on May 22. The agreement provides for reduced nurse-patient ratios for medical-surgical, telemetry, and oncology nurses. Nurses will receive wage increases of 2.5 percent in the first year, followed by 2 percent increases in both of the last two years, and will receive a 1 percent step increase each year. This amounts to an average wage increase of 9.87 percent over the three years, as the average hourly wage for a registered nurse is $37.50 per hour and case managers make an average of $38.50 per hour. Health care premium contribution increases will be capped at 1 percent, down from 2.5 percent in the previous agreement. Workers who self-identify as smokers will be charged $25 each pay period.

Sergio Marchionne, chairman and chief executive officer of Chrysler Group and Chairman of Fiat SpA, has stated that he wants to begin negotiations with the UAW before the expiration of their collective bargaining agreement in September 2015. Marchionne says he wants to end the two-tier wage structure that was negotiated in 2007. One approach for returning to a single wage level would be to grandfather the tier one employees who earn higher wages, then build from the two-tier structure.

A three-member presidential emergency board (PEB) selected the final contract offer from an eight union labor coalition representing 5,800 workers for the Long Island Rail Road (LIRR) in an ongoing dispute with the Metropolitan Transportation Authority (MTA). This non-binding ruling left the parties with 60 days to settle their four-year contract dispute before a planned strike on July 20. The plan is identical to one approved by a separate PEB in 2013, but rejected by the MTA. The two parties remain in conflict on several points. The PEB-approved plan calls for a 17 percent wage increase from June 2010 to June 2016, while the MTA seeks an 11 percent increase. The MTA seeks to increase contributions to its pension plan to 5.2 percent of worker pay, almost double what employees currently pay. The coalition plan calls for a certification bonus of $10 per full shift to certified conductors. Finally, the MTA calls for a 2.0 percent wage contribution to health coverage costs while the union seeks to initially increase those costs by 1 percent and then add an additional .25 percent each year until reaching 2.25 percent in 2016. Although the MTA’s offer contains identical terms to its contract with unionized subway and bus employees, the PEB found that the offer contained significantly different value for the LIRR employees.


Administrative, Court & Other Decisions

A divided NLRB upheld election results certifying a Teamsters local as the bargaining representative for a unit of Florida bus drivers. The Board found that the Teamsters’ use of employee photographs with captions misrepresenting their voting intention was permissible as voters could recognize campaign propaganda for what it was. The Board affirmed that it would not set aside an election unless the use of forged documents left voters unable to recognize rhetoric as campaign propaganda. The Board’s lone dissenter called for changing the standard to make it objectionable for a union to disclose how employees intend to vote. Durham Sch. Servs.

The NLRB upheld an administrative law judge’s (ALJ) decision that an employee’s referral to an employer as a “Ponzi scheme” in a local newspaper was not considered an “extraordinary event.” Therefore, the comments did not relieve the employer of its duty to offer reinstatement after the illegal discharge of the employee for engaging in concerted activity. The NLRB admonished that reinstatement will be deemed inappropriate only in extreme circumstances, citing cases involving an employee issuing illegal threats or striking a supervisor with a car. The Fund for the Public Interest.

An NLRB ALJ held that Boeing engaged in an unfair labor practice by taking pictures and videos of roughly 300 workers marching in support of union demands for a new contract. Although Boeing did not discipline any participants, the ALJ found that recording the march violated Section 8(a)(1) because it had a chilling effect on the employee’s exercise of National Labor Relations Act (NLRA or Act) rights and that Boeing lacked a reasonable objective basis to justify recording the non-disruptive march. In addition, the ALJ found that a Boeing policy prohibiting employees from taking pictures or videos at work violated the NLRA because it prevented employees from documenting NLRA protected activity. Boeing Co.

An NLRB ALJ ruled that a Hooters franchise unlawfully fired a waitress after she complained about an allegedly rigged bikini contest. After losing the mandatory bikini contest, the employee engaged in a profane argument with another employee and was subsequently fired. The ALJ found Hooters’ reason for terminating the employee – initially, Hooters claimed she was terminated for the profanity and then changed its reasoning to “negative social media posts” – to be pretext while the employer looked for an opportunity to fire her for complaining about the contest. In addition, the ALJ struck down nine handbook provisions, including a policy forbidding workers from discussing their tips, a policy broadly prohibiting insubordination, and non-disclosure language that the ALJ found to be so broad that employees could reasonably believe they were unable to discuss wage and salary information. Finally, the ALJ also applied the NLRB’s controversial D.R. Horton analysis in striking down a mandatory arbitration agreement that waived the right to bring class claims. Hoot Winc, LLC and Ontario Wings, LLC d/b/a/ Hooters of Ontario Mills. View our client briefing, NLRB Continues to Expand Authority Over Labor Disputes, for more details.

The NLRB upheld a contested vote by nursing assistants at ManorCare of Kingston PA LLC, in favor of the Laborers’ International Union of North America as their bargaining representative. The vote was challenged by Manor Care, which argued that comments made by two employees threatening bodily harm to those who voted against the union warranted a new election. The Board found that the remarks of the employees were intended as a joke and did not rise to the level of objectionable third party threats sufficient to set aside the election results. ManorCare of Kingston PA, LLC.

Salem Hospital Corp. of New Jersey lost an appeal before the NLRB, affirming an earlier determination that the hospital had violated the collective bargaining agreement with its employees by unilaterally altering the hospital dress code. The Board found that the hospital’s policy change had a major financial impact on its employees, and that implementing such changes without seeking employee input violated the collective bargaining agreement. Salem Hosp. Corp.

The NLRB held that a California nursing home violated federal labor law by restricting the off duty access of employees to the employer’s premises without supervisor permission. The SEIU, representing nursing home employees, challenged the policy of American Baptist Homes of the West, which operates the Piedmont Gardens Home. The Board held that the policy, which gave supervisors unlimited and standardless discretion to determine permissible access to the workplace for off duty employees, violated the NLRA. Piedmont Gardens.

The New York Court of Appeals held that a school’s concern for the safety of students outweighed the free speech rights of picketing teachers who blocked the school’s drop off zone while displaying protest signs from their parked cars. A 5-2 majority of the court found that the protest forced students to walk in the rain and between parked cars, creating a potential risk to student safety that outweighed the First Amendment value of the teacher’s protest. Santer v. Bd. of Ed. of E. Meadow.

The Michigan Supreme Court ruled that neither the NLRA nor the Labor Management Reporting and Disclosure Act (LMRDA) preempts Michigan Whistleblower Protection Act claims when criminal activity is alleged. Four former union employees claimed they were fired after filing a report with the United States Department of Labor, raising concerns about the misappropriation of union funds. The court majority held the LMRDA recognizes a strong state interest in protecting against criminal conduct, and a union employer’s discretion in employment matters is limited where allegations of criminal wrongdoing are involved. Further the court found that the NLRA will not preempt state law where the regulated activity is merely a peripheral concern of the NLRA, or where regulated conduct touches interests that are deeply rooted in local feeling and responsibility. Henry v. Laborers Local 1191.

The NLRB overturned an ALJ ruling in favor of a group of workers at a Brooklyn condo complex who argued that union representation termination letters should not be held invalid because they were submitted early. UAW Local 621 claimed it never received proper termination letters from the workers because the NLRB did not officially recognize the decertification vote until 10 days after the letters were sent to the union. As a result, the workers were required to pay a year’s worth of membership dues after termination. The NLRB ruling upheld payment of the dues, holding that premature revocations of dues check-off authorizations do not become valid upon certification of de-authorization election results. United Workers of Am.

The U.S. Court of Appeals for the Seventh Circuit declined to reconsider challenges to a Wisconsin law that restricted the ability of government workers to collectively bargain. In April, a three-judge panel for the Seventh Circuit found that Wisconsin’s Act 10, passed in 2011, did not proscribe union conduct but instead restricted government employers from creating collective bargaining agreements based on anything but workers’ base wages. The panel noted that the unions were not prohibited from forming, meeting, or advocating and did not violate the First and Fourteenth Amendments. Two unions, Laborers Local 236 and American Federation of State, County and Municipal Employees Local 60, petitioned for rehearing and a rehearing en banc, which the Seventh Circuit denied. Laborers Local 236 v. Scott Walker.

The NLRB, along with the U.S. Department of Labor and U.S. Department of Justice, argued in a statement to the U.S. District Court for the Eastern District of Tennessee that the UAW and Volkswagen AG did not violate the LMRA by agreeing to routine ground rules during the union’s organizing campaign at VW’s plant in Chattanooga, Tenn. After workers voted against the union in February 2014, anti-union workers filed suit against UAW and VW, arguing that VW violated the LMRA’s anti-bribery provisions by providing things of value to the union, including allowing the union to use VW property for organizing activities, remaining neutral during the campaign, and conducting employee meetings with the union during employees’ work hours. The federal agencies argued that the LMRA does not apply to an organizing ground rules agreement and argued that only government entities may seek injunctions for violation of the anti-bribery provisions. On May 23, the employees who brought the case withdrew the lawsuit. Burton v. Int’l Union United Automobile Aerospace & Agricultural Implement Workers of Am. UAW.

The UFCW Local 23 sued a Giant Eagle grocery store in Edinboro, Penn. after the store raised the wages of 25 high performing employees above their union rates. The union argued that the pay increases violated the parties’ collective bargaining agreement by upending their seniority-based pay scale. The union filed a grievance and an arbitrator ruled in the union’s favor and ordered the company to revoke the raises. The store appealed in federal district court, but the court refused to vacate the arbitrator’s decision. Giant Eagle Inc. v. United Food & Commercial Workers Union, Local 23.

The NLRB upheld an ALJ’s findings that a nursing home management company violated the NLRA when it banned workers from wearing union stickers and removed union fliers from six facilities. The presumption that bans on wearing union insignia in patient care areas is valid was not applicable because the prohibition was selectively enforced against the union sticker, which stated the company had been “busted” for violating the NLRA. HealthBridge Management LLC.

A used car dealership in Arizona was ordered to reinstate a salesman who was fired after he used profanity when bringing his concerns to the business owner. The NLRB found that the salesman did not engage in menacing, physically aggressive behavior or belligerent conduct, and therefore did not lose the protection of the NLRA. The salesman raised concerns about the company’s refusal to grant lunch and restroom breaks, its failure to pay hourly minimum wages, and its low commissions. The owner told him he did not need to work there, and the salesman pushed his chair aside, berated the owner, and said the owner would regret it if he fired the salesman. The ALJ found that the salesman’s termination did not violate the NLRA, because his aggressive actions and statements were not protected. The NLRB reversed, finding the employee’s conduct was not so severe as to lose protection under the Board’s traditional Atlantic Steel factors, including the place of the discussion, its subject matter, the nature of the outburst, and whether the outburst was provoked by perceived unfair labor practices. Plaza Auto Ctr.

The NLRB’s Division of Advice released a memorandum finding that a New York school teaching English as a second language was not required to negotiate with the union before issuing warning letters to several teachers. Because the warnings did not have an immediate effect on the teachers’ tenure, status or earnings, the warnings did not trigger a duty of preimposition bargaining required under NLRB precedent set in Alan Richey, Inc. The memorandum concluded that the unfair labor charge against the employer should be dismissed or withdrawn. Kaplan Int’l Ctrs.

The NLRB invited briefing regarding its joint-employer standard in a decision involving the Teamsters’ attempt to organize a recycling facility’s workers employed through a staffing subcontractor. Under the current standard, established in TLI, Inc., joint employer status is determined by looking at whether each entity meaningfully affects the terms and conditions of employment. NLRB Acting Regional Director George Velastegui determined that the facility did not retain sufficient authority to be considered a joint-employer and therefore was not obligated to bargain with the Teamsters. The Teamsters argued that the recycling facility controls the employees’ hours, wages, working conditions, and productivity standards, and therefore should be considered a joint-employer with the subcontractor. Parties and interested amici can file briefs before June 26, 2014 . Browning-Ferris Indus. of California, Inc.

The NLRB invited briefing on a recommendation made by the NLRB’s General Counsel that the Board’s Register Guard decision be overturned. Register Guard holds that employees do not have a statutory right to use employer email systems for personal use. Under this precedent, an ALJ ruled that employer Purple Communications did not violate the NLRA by maintaining a policy prohibiting employees from using its electronic equipment and systems for personal use. The General Counsel and CWA have urged the Board to overturn Register Guard and adopt a rule that employees have the right to use their employer’s email network for Section 7 activity if they can use it for work purposes, subject to the employer’s need to maintain production and discipline. Briefs may be filed by parties or interested amici on or before June 16, 2014 . Purple Communications, Inc.

Legislation & Politics

NLRB General Counsel Richard Griffin released a memorandum stating that the NLRB plans to pursue injunctions under Section 10(j) of the NLRA to combat unfair labor practices relating to successor employers’ refusal to bargain with unions. Although Section 10(j) injunctions are typically used to preserve the status quo during administrative proceedings, the NLRB has recently worked to expand their scope. Although the expansion of Section 10(j) injunctions could lead to abuse by regional NLRB offices – using the threat of injunctions to induce a quick settlement – the memorandum clarifies that injunctions are only justified in egregious cases where a successor employer uses unfair labor practices to undermine an existing union.

The Occupational Safety and Health Administration (OSHA) has entered into a cooperation agreement with the NLRB under which OSHA will notify all complainants who file time-barred whistleblower complaints of their rights to file a charge with the NLRB. The Occupational Safety and Health Act (OSH Act) bars retaliation against workers who complain about safety hazards, but has a statute of limitations of only 30 days. Workers may file an unfair labor charge with the NLRB within six months. To fall under the NLRB’s jurisdiction, an OSH Act claim would have to be concerted. View our client briefing, NLRB Continues to Expand Authority Over Labor Disputes, for more details.

The NLRB’s semiannual regulatory agenda identified just one issue—proposed changes in representation case procedures. This issue has been under Board consideration for nearly three years. The changes were initially suggested in June 2011, with a two-member Board majority. In December 2011, two members gave final approval to some of the Board proposals, but in 2012, a federal district court, in Chamber of Commerce v. NLRB, found the action invalid because the Board lacked the necessary quorum of three members. In 2014, the Board agreed to drop an appeal of the court ruling, but issued a new notice of proposed rulemaking with the same changes in the 2011 proposal. View our client briefing, NLRB Proposes Amendments to Union Election Rules, for more details.

House Democrats demanded that U.S. trade negotiators include more worker protections as part of the ongoing trade talks with Vietnam, Mexico, Malaysia, and Brunei. The talks about being held on the Trans-Pacific Partnership, which would expand the Trans-Pacific Strategic Economic Partnership Agreement, ratified in 2005, to expand the trade zone to 12 nations. Democrats want the U.S. negotiators to insist on strong, enforceable pans to protect the free association and collective bargaining rights of workers, as well as to ensure safe working conditions and fair wages. 153 House members and all Democrats signed the letter to the U.S. Trade Representative.

Crime, Corruption & Other Misdeeds

Eight former members of the International Longshoremen’s Association pleaded guilty to extortion charges. Vincent “The Vet” Aulisi, Thomas “Tommy” Leondaris, Robert “Bobby” Ruiz, Salvatore LaGrasso, Michael Nicolosi, Julio Porrao, Rocco Ferrandino, and Michael Trueba were among 15 defendants charged in a broad labor racketeering indictment relating to a scheme in which the defendants used “actual and threatened force, violence, and fear” to extort money from longshoremen’s year-end compensation from shippers using New York and New Jersey ports. Charges are still pending against three other defendants, including lead defendant Stephen Depiro. Depiro is an alleged soldier in the Genovese organized crime family who have allegedly extorted port workers for nearly 30 years.

Ronald Karr, former secretary-treasurer of IBEW Local 2359 in Sugar Grove, Ohio, was ordered to pay a fine of $4,000 and serve two years of probation by the U.S. District Court for the Southern District of Ohio. Karr had previously pled guilty to embezzling $158,150 in union funds from January 2006 to February 2011. Karr used the money to pay for repairs to his personal vehicle, to buy a rifle, an enclosed trailer, and more than 200 purchases at Walmart. He already paid full restitution.

A former financial secretary of UAW Local 3061 in Crestline, Ohio, was ordered to serve 18 months in prison and make full restitution of the more than $150,000 she admitted embezzling from the union. The Department of Labor’s Office of Labor-Management Standards and Office of Inspector General conducted a joint investigation and found that Kristie McClarren used the union’s debit card to make unauthorized cash withdrawals and personal purchases. McClarren plead guilty to embezzlement on January 17 in the U.S. District Court for the Northern District of Ohio.


Members of the IAM at 800 local lodges in the United States and Canada voted in a mandatory special election to reelect incumbent leadership candidates. R. Thomas Buffenbarger, the incumbent candidate for international president, earned 23,345 votes, to reform candidate Jay Kronk’s 11,163 votes. Incumbent general secretary-treasurer Robert Roach Jr. defeated Dale Cancienne by a similar margin of 23,828 to 10,690. The reform candidates have submitted a protest to the Department of Labor, alleging that the incumbents used union funds to support their campaign.



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