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Labor Relations News Update November 7, 2013

Today’s Labor Updates:
OCTOBER 2013 Select events and news from the world of organized labor
NLRB Upholds Workplace Ban on Recording Devices
OSHA Seeks to Make Injury Records Public
Summary of NLRB Decisions for Week of October 21 – 25, 2013

OCTOBER 2013 Select events and news from the world of organized labor
Strikes & Labor Disputes
Major Contract Settlements & Negotiations
Administrative, Court & Other Decisions
Legislation & Politics
Crime, Corruption & Other Misdeeds

The Florida Nurses Association/Labor and Employment Relations Council (FNA/LERC) – representing more than 5,000 registered nurses and health care employees – is affiliating with the Office and Professional Employees International Union (OPEIU). OPEIU has more than 113,000 members, and with this affiliation, it has a nursing professional membership in excess of 11,000. The affiliation agreement provides that FNA/LERC will retain its autonomy and structure, and will be provided with resources for growth. The LERC is the labor relations arm of the FNA, which is governed by the presidents of the various bargaining units represented by FNAWuesthoff Medical Center, University of Florida Health – Shands, Florida State University, and the State of Florida Professional Health Care Unit.

Vermont’s 7,500 independent home care providers servicing Medicaid-funded homebound adults voted 1,412 to 566 for representation by AFSCME Vermont Homecare United. The Service Employees International Union (SEIU) had competed on the ballot, but withdrew earlier this summer to avoid a showdown with AFSCME. AFSCME Vermont Homecare United will elect 20 members – one from each county – to form a bargaining committee tasked with determining the union’s priorities for negotiations, including wages and health care. In May, Gov. Peter Shumlin signed legislation providing the home care providers the right to unionize, collectively bargain with the state, and pursue other grievances.

The Farm Labor Organizing Committee (FLOC) approved a campaign for the summer of 2014 to collect union authorization cards from some 5,000 tobacco farm workers as part of an endeavor to improve migrant farmworkers’ pay and working conditions in North Carolina. FLOC represents approximately 7,000 North Carolina migrant farmworkers under an agreement with the North Carolina Growers Association (NCGA). FLOC hopes that its campaign will ultimately reach an estimated 100,000 North Carolina workers at non-NCGA farms, including at North Carolina’s largest tobacco company, Reynolds American. In support of FLOC’s campaign, the AFL-CIO adopted Resolution No. 38, pledging to help FLOC add pressure to tobacco farms and tobacco-selling industries to support farmworkers. The North Carolina legislature and Gov. Pat McCroy, on the other hand, passed and signed Session Law 2013-413, precluding agricultural product purchase agreements from being conditioned on a producer being a union or non-union employer.

The AFL-CIO seeks to broaden the reach of Working America, its community affiliate for nonunion members, from its current 11 states to all 50 states by 2018. Working America is seeking to expand its role from mostly canvassing regarding policy issues to organizing workers. Working America is also seeking to serve workers, across industries, who do not have access to unions.

A 172-employee unit at automotive supplier Faurecia Interior Systems Inc., in Louisville, Ky., elected the United Auto Workers (UAW) in a recognition election. The facility, which opened in late 2011, produces automotive interiors for vehicles manufactured at Ford Motor’s Louisville Assembly Plant and General Motors’ Fairfax Assembly Plant in Kansas City, Kans. In July 2012, workers at a Faurecia plant in Cottondale, Ala., also voted for UAW representation. The UAW continues its organizing focus on auto assembly and auto part plants in the South, specifically, at the Volkswagen plant in Chattanooga, Tenn., the Nissan Motor Co. auto manufacturing plant in Canton, Miss., and the Vance, Ala. Mercedes-Benz U.S. International, Inc. plant.

The Casino Workers Council – comprised of the UAW, United Steelworkers (USW), International Brotherhood of Teamsters (IBT), and UNITE HERE – won an election to represent Horseshoe Casino Cincinnati employees. The Council will represent some 1,100 employees, including dealers, food and beverage workers, maintenance workers, warehouse workers, count and cage workers, valets, and slot technicians. The unions’ organizing efforts benefitted from a neutrality agreement with Horseshoe’s parent company, Caesars Entertainment Corp. Other Ohio casino employees that have voted for union representation include 800 employees at the Hollywood Casino in Toledo, 1,050 workers at the Hollywood Casino in Columbus, and employees at the Horseshoe Casino in Cleveland.

Strikes & Labor Disputes
Eight Chattanooga, Tenn., Volkswagen employees represented by the National Right to Work Legal Defense Foundation filed charges with the NLRB against the UAW, alleging unfair labor practices aiming to avoid a secret ballot election. Specifically, the employees allege that during an organizing campaign at the facility, the UAW restrained and coerced employees who sought to exercise their rights to abstain from union activity.

Nearly all of USW Local 8751’s 630 school bus driver members employed by Veolia Transportation held a one-day strike in Boston, Mass. Local 8751 members complain of payroll shortages, route changes, and allegedly improper discipline. Neither national nor regional USW officials approved the strike. Veolia and Local 8751 representatives have been unable to reach an agreement.

Approximately 1,200 of 2,000 International Longshoremen’s Association (ILA) Local 333 longshoremen and deep sea cargo workers went on strike after refusing to accept port operator Steamship Trade Association (STA) of Baltimore’s contract offer. Three other ILA local units supported Local 333 by preventing cargo from being shipped to public marine terminals. The strike ended after five days pursuant to an arbitrator’s order, finding that the strike violated obligations under the ILA master contract. Local 333 and STA agreed to a 90-day cooling off period to enter into local contract negotiations. Local 333 has also filed charges with the NLRB claiming that STA failed to bargain in good faith. ILA national headquarters entered into a six-year contract that covers 14,500 East Coast and Gulf Coast port workers on April 9, but Baltimore, Md., Philadelphia, Pa., and Hampton Roads, Va. still lack local contracts.

Following stalled labor contract negotiations, Kellogg Co. implemented a lock out of 220 Bakery, Confectionery, Tobacco Workers and Grain Millers (BCTGM) Local 252 members at its Memphis, Tenn. cereal plant. In the negotiations, Kellogg seeks various provisions designed to lower labor costs. BCTGM claims the lock out is an unfair labor practice.

Major Contract Settlements & Negotiations
A BNA analysis of collective bargaining data for all settlements through September 30 showed an average first-year wage increase of two percent compared with 1.6 percent in the comparable period of 2012. The median first-year wage increase for settlements reported to date in 2013 was the same as in 2012, at two percent. There was an average two percent increase in settlements for first-year wages, and an average 2.4 percent increase when omitting construction as well as state and local government contracts. These percentages are up from 1.6 percent and 2.3 percent increases respectively for an equivalent time period in 2012. When lump-sum payments were factored into wage calculations, the all-settlements average first-year increase to date in 2013 was 2.3 percent. The comparable period in 2012 reported a two percent increase.

Amalgamated Transit Union (ATU) Local 1555 and SEIU Local 1021 voted and approved a four-year contract with San Francisco Bay Area Rapid Transit (BART) that provides a 15 percent raise and improved safety conditions. BART’s board of directors will now vote on the deal. The tentative agreement follows a four-day strike in mid-October, when workers shut down all transit lines for a second time – three months after their initial five-day strike – after negotiations with a federal mediator failed due to issues of workplace safety. SEIU Local 1021 represents more than 1,400 BART employees, while ATU Local 1555 represents approximately 900.

After more than two years of negotiations, California Nurses Association/National Nurses United (CNA/NNU) members ratified labor contracts with five Sutter Health hospitals in the San Francisco Bay Area: Sutter Solano (Vallejo), Alta Bates Medical Centers (Berkeley and Oakland), Eden Medical Center (Castro Valley), and Sutter Delta (Antioch). Covered employees include 3,000 registered nurses and hundreds of respiratory, X-ray, and other technicians represented by National Nurses Organization Committee/NNU affiliate, Caregivers and Healthcare Employees Union. The new contracts increase the 20-hour workweek threshold for health insurance to 30 hours, change paid sick leave to short-term disability with partial pay, eliminate retiree health care plans, eliminate certain charge nurse positions, and cut education leave benefits. The contracts also include provisions limiting nurses’ assignments by areas of expertise and increasing the hourly wage by six percent. There were nine strikes during the negotiation period. The prior contracts expired June 30, 2011 and the new contracts are set to expire December 31, 2015 except for the Sutter Solano contract, which expires in October 2016.

Peabody Energy Corp. and Patriot Coal Corp. reached a settlement with the United Mine Workers of America (UMWA) that provides over $400 million to fund a voluntary employee benefit association (VEBA) that will pay miners’ retiree health care benefits. Under the agreement, UMWA will cease its public relations campaign against Peabody. Peabody will pay $310 million over the next four years to the VEBA in annual increments. Patriot will pay $15 million and $60 million payments over 2015-2017. The UMWA claims the new agreement still does not cover all anticipated costs, but asserts the union will seek legislation to make up the difference. Because Patriot Coal filed for bankruptcy in July 2012 after separating from Peabody Energy in 2007, the agreement is subject to approval by the U.S. Bankruptcy Court for the Eastern District of Missouri.

United Food and Commercial Workers (UFCW) Locals 21 and 367 and IBT reached a tentative contract agreement with Albertsons LLC, Safeway Inc., and Kroger Co. grocery stores in western Washington covering almost 30,000 grocery store employees. A central issue during negotiations was health care coverage for employees working less than 30 hours per week. The terms of the contract have not been made public; however, it will cover workers in Seattle, Tacoma, Olympia, Everett, and Bremerton.

USW Local 2635-06 ratified a four-year contract with AmeriServ Financial Bank effective through October 2017. The contract, which covers 18 branch offices in western Pennsylvania and 188 employees, increases wages three percent per year and maintains existing pension benefits. The benefits remain unchanged and employees will still be covered by United Steelworkers Health & Welfare Fund, but will pay $10 per month more in premiums.

UNITED HERE, following a pattern agreement established earlier in 2013, renewed collective bargaining agreements in Chicago, Boston, San Francisco, Los Angeles, Toronto, and Honolulu for five-year terms covering approximately 4,500 housekeepers, bell staff, dishwashers, bartenders, servers, and cooks. The renewed contracts provide a four percent wage increase per year and emphasize job security, food and beverage cost control, and health care. All renewed contracts were set to expire in 2013. Pattern agreements have also been reached with the following San Francisco hotels: Hilton San Francisco Union Square, Marriott, Starwood, Intercontinental, and Four Seasons. Agreements have also been reached in Chicago with Hyatt, Hilton, and Starwood hotels, and in Los Angeles with Hilton and Starwood hotels. Agreements not yet reached include approximately 30 hotels in Los Angeles and smaller hotels in Chicago. Additionally, UNITED HERE is organizing at the Hyatt Fisherman’s Wharf and Le Meridien in San Francisco.

Communications Workers of America (CWA) ratified five-year agreement with CenturyLink a retroactive to October 2012, which covers approximately 12,000 employees in 13 states. The union voted against CenturyLink’s first proposal, then tentatively agreed to a slightly altered agreement on October 11, which incorporates two changes, including reworking language regarding new a premises technician position and decreasing restriction of 401(k) accounts. The contract provides two wage increases, a $500 ratification bonus, lump-sum payments of two and 2.5 percent in October 2013 and 2014/2015/2016 respectively, overtime premium pay changes, 20 percent health care premium contributions that are offset by company-funded health reimbursement accounts, limits contracted work, and requires the company to return outsourced jobs at lower hourly rates. The prior contract expired on October 28, 2013.

International Association of Machinists (IAM) members voted, by over 70 percent, to ratify three agreements with United Airlines: fleet service, public contract and passenger service, and storekeeper. The three agreements collectively cover 28,000 employees and institute uniformity in wages and other terms at United, Continental Airlines, Continental Micronesia and MileagePlus subsidiaries. Contract terms include immediate wage increases of 7-29 percent, eventual wage increases of 19-56 percent, improved retirement and benefit plans, outsourcing protection for 96 percent of workers, affordable health insurance, and increased vacation time. The National Mediation Board assisted with contract negotiations, which lasted four years. The new contracts replace seven agreements between bargaining groups and pre-merger carriers. The Association of Flight Attendants-CWA and International Brotherhood of Teamsters, which represent mechanics, are still negotiating agreements.

UFCW Local 1000 ratified a contract with Kroger Co. covering 92 stores and 9,450 employees in the Dallas/Fort Worth area. The agreement provides a guarantee of at least 15 work hours for part-time courtesy clerks, wage increases of 25 cents per hour each year, and also includes health care plan adjustments and in some cases, employee contributions will increase. Pension benefits, vacation, holiday, and sick leave benefits remain the same under the new contract.

The IBT and ABF Freight System Inc. master negotiating committee approved the last supplement to a national master freight agreement, called the Central Region Local Cartage Supplement. The union had rejected two prior proposals. The supplement covers approximately 1,900 Cartage workers, who generally transport goods on docks, and includes dock workers, drivers, and other employees in Illinois, Indiana, Iowa, Kansas, Kentucky, Michigan, Minnesota, Missouri, Nebraska, North Dakota, Ohio, South Dakota, West Virginia, and Wisconsin. A master-five year agreement covering approximately 7,500 drivers, mechanics, dockworkers, and clerical staff can now be implemented. The agreement includes a seven percent wage reduction to be recouped during the life of the contract with incremental wage increases, has a year longer wage progression, hourly and mileage rate increases, a profit-sharing bonus depending on operating ratios, a modified cost-of-living allowance, and reduction in paid leave. Overall, ABF anticipates saving between $55-65 million annually as a result of the new agreement.

Administrative, Court & Other Decisions
The Little River Band of Ottawa Indians argued to a three judge panel of the U.S. Court of Appeals for the Sixth Circuit, that sovereignty rights recognized in the Indian Gaming Regulatory Act (IGRA) allow the tribe to ban union strikes. The tribe argued that its casino’s revenues are so closely tied to the tribe’s ability to function as a sovereign entity, that the NLRB cannot step in and reverse tribal labor laws that conflict with the NLRA. The NLRB argued that its holding, barring the tribe’s strike ban, is in line with precedent in other circuit courts, that casino operations are a commercial activity, and that tribe members do not make up the majority of patrons or employees. The tribe distinguished these cases and argued that its ability to ban strikes is akin to state and federal laws that preclude public sector strikes. Little River Band of Ottawa Indians v. NLRB.

The U.S. Court of Appeals for the Second Circuit Court found that a federal district court in Connecticut properly issued an injunction under NLRA Section 10(j) prohibiting a health care employer from further labor practice violations pending resolution of the union’s charges before the NLRB. In July 2012, 600 members of the New England Health Care Employees Union District 1199, SEIU went on strike at HealthBridge nursing homes in response to HealthBridge’s unilateral changes to wage and benefits. The union filed charges with the NLRB, and the Board asked the district court to issue an injunction. Finding reasonable cause, the court granted the injunction and ordered the company to withdraw its unilateral wage and benefit changes and to engage in good faith negotiations. HealthBridge appealed to the Second Circuit, arguing, in part, that the NLRB’s decision to seek an injunction was invalid because two of the four NLRB members who sought the injunction were invalidly appointed and therefore, the decision ran afoul of the NLRA, which requires a quorum of at least three NLRB members to exercise its authority. However, the Second Circuit found the NLRA grants the NLRB authority to delegate authority – including pursuing an injunction – to the NLRB’s general counsel when it is without a quorum, and a valid delegation to the general counsel in this case withstood a later lost quorum. Kreisberg v. HealthBridge Mgmt. LLC.

The U.S. District Court for Oregon issued a preliminary injunction pending the NLRB’s resolution of secondary picketing charges filed against the International Longshore and Warehouse Union (ILWU) by Tidewater Barge Lines Inc. The injunction prevents ILWU members from picketing against Tidewater, which operates docks on the Snake and Columbia Rivers working with grain barges. ILWU picketed against grain-exporter Marubeni-Columbia Grain Inc. (CGI) after their contract expired and CGI implemented a lockout. Tidewater workers refused to cross the picket line, and CGI hired non-union worker replacements to perform the Tidewater workers jobs. The NLRB’s complaint against the union is scheduled for hearing before an administrative law judge in November. Pomerantz v. Longshore & Warehouse Union, Local 4.

An NLRB Administrative Law Judge (ALJ) held that it was a violation of Professional Transportation Inc.’s duty to bargain in good faith when the company conditioned bargaining with an IBT Local on the union’s agreement that any resulting contract would be voided if the U.S. Supreme Court upholds Noel Canning. The ALJ rejected Professional Transportation’s argument that the union’s June 2012 certification would be invalid if Noel Canning is upheld (invalidating the NLRB quorum back to January 2012), determining that certification could be reaffirmed by the current Board. Professional Transportation Inc.

An NLRB ALJ held that FAA Concord H Inc. (Concord Honda) violated the NLRA by implementing mandatory arbitration agreements that employees could interpret as prohibiting them from participating in class or collective actions. The ALJ, therefore, ordered the agreement to be withdrawn or revised. Concord Honda argued that the policy mentioned California statutes that enable joinder and consolidation of arbitration proceedings, but the ALJ found the agreement inadequate and unclear. Relying on D.R. Horton Inc., the ALJ found the language in the agreements was written in singular language without reference to joint efforts and stated that all communications related to the arbitration were privileged, which discouraged employees from talking collectively. FAA Concord H Inc.

The Sixth Circuit reversed an NLRB ALJ’s finding that Allied Mechanical Services Inc. was obligated to pay Apprentices of the Plumbing and Pipe Fitting Industry, the United Association of Journeymen, and the Sheet Metal Workers International Association litigation costs arising from its lawsuit against the unions. The Sixth Circuit found the NLRB did not have sufficient evidence to substantiate its order and holding that Allied’s lawsuit was retaliatory. Allied filed suit in 1998 against the three unions, alleging collusion to suppress funds from the company and breach a collective bargaining agreement. Allied also claimed the unions engaged in an unlawful secondary boycott. A Michigan federal court dismissed Allied’s case, and that decision was affirmed by the Sixth Circuit. National Labor Relations Board v. Allied Mechanical Servs.

An NLRB ALJ held Whole Foods Market Inc. did not violate the NLRA by maintaining a rule prohibiting employees nationwide from electronically recording voices or conversations in the workplace. The UFCW Local 919 and Workers Organizing Committee of Chicago brought the unfair labor practice charges. Whole Foods argued that the recordings at issue hurt its culture encouraging employees to speak up and the ban promoted its legitimate business interests. The ALJ determined the ban was a reasonable means to protect Whole Foods’ legitimate business interests, did not chill employees’ exercise of NLRA rights, and found no evidence that the rule was implemented in response to union activity. Whole Foods Market, Inc.

Legislation & Politics
Voting along party lines, the U.S. Senate confirmed Richard Griffin as NLRB General Counsel replacing retiring Acting General Counsel, Lafe Solomon. Only one Republican voted in favor of Griffin’s confirmation. President Obama appointed Griffin to the NLRB in 2012, but the U.S. Circuit Court of Appeals for the District of Columbia held in Noel Canning v. NLRB that Griffin’s appointment, as well as the appointments of Terence Flynn and Sharon Block, were unconstitutional recess appointments. Noel Canning is currently on appeal to the U.S. Supreme Court.

Crime, Corruption & Other Misdeeds
The former head official of SEIU’s largest California local, Tyrone Freeman, was found guilty of embezzlement and/or labor union assets theft, making a false statement to a federally insured financial institution, mail fraud, and subscribing to a false tax return, and sentenced to 33 months in jail. Freeman was also banned from holding an officer or other management position in any labor union for 13 years after he is released from prison and was ordered to pay $124,000 in restitution for embezzling from the SEIU United Long Term Care Workers (ULTCW) Local 6434. Freeman will also serve five years of supervised release after he is released from jail. An action filed by the SEIU in 2009 seeking $1.1 million in restitution from Freeman was stayed pending resolution of the federal action.

A judge for the Western District of New York upheld an indictment against 12 officers and members of the International Union of Operating Engineers Local 17 that alleged racketeering conspiracy under the Racketeer Influenced and Corrupt Organizations Act, and attempted extortion under the Hobbs Act. Specifically, the indictment alleges that Local 17 criminally forced employers to hire certain workers; attempted to extort construction contractors’ property including wages and benefits; and attempted to extort nonunion laborers’ property, including jobs, wages, and benefits, and pressured business decisions.

Mike Fishman was elected secretary-treasurer of the 2.1 million-member SEIU International Board for a term running through mid-2016. Fishman previously served as head of New York City SEIU Local 32BJ, the largest private-sector union in the state of New York, and as an SEIU international executive vice president. Rocio Saenz was elected to fill Fishman’s international executive vice president position. Originally from Mexico, Saenz started a Justice for Janitors program in Boston and served as the president of SEIU Local 615, currently SEIU 32BJ District 61.

NLRB Upholds Workplace Ban on Recording Devices
November 7, 2013 Jon Hyman
Two months ago I wrote the following, concerning whether employers should be thinking about implementing bans on employees using recording devices in the workplace:
If you do not have a policy against employees recording conversations in the workplace, you might want to consider drafting one. You never know when an employee is going to try to smuggle a recording device into a termination or other meeting. The proliferation of smart phones has only made it easier for employees to make recordings, both audio and video. Why not address this issue head-on with a policy? Unless, of course, the [National Labor Relations Board] gets its way and renders these policies per se illegal.
At least as to the last point (the legality of such bans under the National Labor Relations Act), we now have the beginnings of an answer, via the decision of an NLRB Administrative Law Judge (the finality of which depends on whether the union appeals the decision to the full Board in Washington D.C.).
In Whole Foods Market, Inc. (NLRB Case No. 01-CA-096965 10/30/13) [pdf], the union challenged the following no-recording policy:
It is a violation of Whole Foods Market policy to record conversations with a tape recorder or other recording device (including a cell phone or any electronic device) unless prior approval is received from your store or facility leadership. The purpose of this policy is to eliminate a chilling effect to the expression of views that may exist when one person is concerned that his or her conversation with another is being secretly recorded. This concern can inhibit spontaneous and honest dialogue especially when sensitive or confidential matters are being discussed.
Violation of this policy will result in corrective action up to and including discharge.
The ALJ concluded that this policy did not violate the rights of the employees of Whole Foods to engage in protected concerted activity under the National Labor Relations Act:
I have found no cases, and none have been cited, in which the Board has found that making recordings of conversations in the workplace is a protected right…. Even if recording a conversation is a protected right, the Respondent is entitled to make a valid rule, such as the one in question here, to regulate its workplace, and in doing so, prohibit such activity….
The rule does not prohibit employees from engaging in protected, concerted activities, or speaking about them. It does not expressly mention any Section 7 activity. The only activity the rule forbids is recording conversations or activities with a recording device. Thus, an employee is free to speak to other employees and engage in protected, concerted activities in those conversations….
There is no basis for a finding that a reasonable employee would interpret this rule as prohibiting Section 7 activity.
In light of this decision, what is an employer to do?
Review any existing workplace recording policies to ensure that the stated reasons for the policy is clear. For example, in Whole Foods, the company relied on the protection of “candor and forthrightness in employee opinions.”
Do not institute a new recording ban, or amend an existing policy, in response to union activity.
Do not apply a recording ban to limit or prohibit the recording of protected Section 7 activity (wages, benefits, terms and conditions of employment, union issues, etc.).
Limit the prohibition to working time and work spaces.
This case offers hope to employers that there exists a more reasonable analysis of the application of Section 7 rights to workplace policies other than suggested by the Board’s recent actions.
Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Hyman at (216) 736-7226 or You can also follow Hyman on Twitter at @jonhyman.

OSHA Seeks to Make Injury Records Public
Proposed New Rule Would Vastly Change Workplace Safety Reporting; Chamber and Other Groups Are Likely to Protest
By Alexandra Berzon and Melanie Trottman

Updated Nov. 6, 2013 8:45 p.m. ET

Large companies would be required for the first time to make their worker injury and illness records public under a new rule that a Labor Department agency is set to propose Thursday, according to people familiar with the matter.

The new proposal, which would affect companies with more than 250 employees, would vastly change current workplace-safety reporting practices. It would require companies to file electronic-injury and illness reports that would be available to the general public, as well as to researchers, company employees, other companies and public officials, people familiar with the matter said.

The proposal is part of a continuing effort by the Obama administration to use such public disclosures to try to compel companies to comply with safety laws.

Workplace-safety advocates say such measures are important because fines imposed by the Labor agency, the Occupational Safety and Health Administration, are often relatively minimal, and the agency has limited resources to inspect workplaces to ensure companies are complying with regulations. Public attention on company safety could have greater impact and prove a bigger deterrent, they say.

Such efforts have long been objected to by employers, who say public attention can present a distorted view of safety practices. Marc Freedman, executive director of labor-law policy for the U.S. Chamber of Commerce, said his and other prominent industry groups would likely protest the proposed new rule during a coming commenting period.

Currently, companies have to keep track of workplace injuries and illness, and post summaries in the workplace for employees to access. Selected companies also have to fill out OSHA and Bureau of Labor Statistics surveys on workplace incidents. Yet under the current system, none of that information becomes publicly tied to specific companies.

In a brief description of the proposed rule, the Labor Department characterized the change as part of President Barack Obama’s efforts to increase transparency. It said it would help improve the accuracy of records and statistics, and help prevent workplace injuries and illnesses.

“It’s very hard to get information from inside the workplace,” said Randy Rabinowitz, an attorney who represents unions and is an advocate of stronger safety enforcement. “This is a way to hold companies accountable in the same way they are held accountable for their environmental or discrimination records or other community values people care about.”

Joe Trauger, vice president of Human Resources Policy for the National Association of Manufacturers trade group, strongly disagreed. “Disclosing information of this nature serves little public good, is easily misinterpreted and can lead to unfair conclusions or judgments about a company or particular industry,” he said. “This will not fulfill employer and employee goals of making workplaces safer, nor does it get people back to work.”

Mr. Freedman of the Chamber of Commerce said he worries that unions or others might use the access to company records to push an agenda, when the injury data may not provide a complete picture of workplace safety.

James Stanley, a former OSHA official who consults for companies, said he worried that companies would be less likely to report as many injuries. “I think they’ll try to do everything in the world not to report, because now it’s going to be public,” Mr. Stanley said. “Injury reporting is not an exact science. The rules are gray at best.”

Ms. Rabinowitz, who has written about the importance of more disclosures, said that measures like the proposed new reporting rule could help public-health professionals make connections between chemical hazards suffered in the workplace and those experienced by nearby residents.

OSHA has said the primary purpose of its enforcement program is to deter those who would break the law and, as such, it specifically targets the most dangerous workplaces and the most recalcitrant employers. In a 2010 letter to colleagues on OSHA priorities posted on OSHA’s website, David Michaels, the head of the agency, mentioned expanding public awareness of enforcement as one of the agency’s key missions in increasing safety at workplaces.

“In some cases, ‘regulation by shaming’ may be the most effective means for OSHA to encourage elimination of life-threatening hazards, and we will not hesitate to publicize the names of violators, especially when their actions place the safety and health of workers in danger,” Mr. Michaels said at the time.

Toward that end, one of the earliest actions after Mr. Obama took office was to reduce the amount of a fine required to automatically generate an OSHA press release from $80,000 to $40,000. That effort has been criticized by some employer advocates, who argue that generating headlines before companies have a chance to contest citations doesn’t tell the full story.

“The only impression people are left with is a bad company injuring employees, and the full story that the company took the issues seriously and agreed to do abatement measures, that’s lost to the ether,” Mr. Freedman said.

“It’s making people take notice,” Ms. Rabinowitz said. “In some companies, a $50,000 fine doesn’t make people take notice. A press release does. The whole idea of an enforcement scheme is to create a deterrent.”

Write to Alexandra Berzon at and Melanie Trottman at

Summary of NLRB Decisions for Week of October 21 – 25, 2013
The Summary of NLRB Decisions is provided for informational purposes only and is not intended to substitute for the opinions of the NLRB.

Summarized Board Decisions

Bristol Manor Health Care Center (22-CA-087652; 360 NLRB No. 7) Rochelle Park, NJ, October 25, 2013.

The Board granted the Acting General Counsel’s Motion for Default Judgment pursuant to the noncompliance provisions of an informal settlement agreement. The Board found that the Respondent failed to comply with the terms of the settlement agreement, and accordingly deemed all of the allegations in the reissued complaint to be true and ordered appropriate remedies. The Board noted that although the Respondent asserted in its response to the Notice to Show Cause that it had complied with each information request made by the Union, the Respondent did not directly dispute the assertions made by the Acting General Counsel and the Union that much of the information covered by the settlement agreement still had not been provided. The Board noted that the Respondent’s contentions that the information it had provided was “responsive” to the Union’s request and that this information demonstrated its compliance with the collective-bargaining agreement failed to establish that it had fully complied with the settlement agreement and failed to raise any genuine issue of material fact warranting a hearing. The Board ordered the Respondent to cease and desist from failing to bargain in good faith by refusing to furnish the Union with requested information, and affirmatively ordered the Respondent to furnish the Union with the information it requested.

Charge filed by1199 SEIU, United Healthcare Workers East.

Members Miscimarra, Hirozawa and Schiffer participated.


Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Camoplast Rockland, Ltd (25-RC-106038) Peosta, IA, October 22, 2013. No exceptions having been timely filed to the Regional Director’s Report on Objections, which ordered a hearing on 10 objections and overruled one objection, the Board remanded the proceeding to the Regional Director for further action consistent with his Report. Petitioner – The International Union, United Automobile, Aerospace and Agricultural Implement Workers of America.

Agro Landscape Consultants, Inc. (05-RC-109272) Washington, DC, October 22, 2013. No exceptions having been filed to the Regional Director’s report overruling an objection to an election held August 21, 2013, the Board certified Petitioner Public Services Employees, Local Union 57, affiliated with Laborers’ International Union of North America, AFL-CIO, as the exclusive collective-bargaining representative of the employees in the appropriate unit.

Aircraft Service International, Inc. (31-RC-100047) Los Angeles, CA, October 22, 2013. Order denying the Petitioner’s request for review of the Regional Director’s order dismissing petition and withdrawing notice of representation hearing. Petitioner—United Service Workers West, Service Employees International Union. Members Miscimarra, Hirozawa, and Johnson participated.

Guitar Center Stores, Inc. (13-RC-108373) Chicago, IL, October 24, 2013. No exceptions having been filed to the Regional Director’s report overruling objections to an election held August 9, 2013, the Board certified Petitioner Retail, Wholesale and Department Store Union (RWDSU), United Food and Commercial Workers as the exclusive collective-bargaining representative of the employees in the appropriate unit.

C Cases

Pittsburgh Athletic Association (06-CA-105460, 105461) Pittsburgh, PA, October 23, 2013. Order transferring proceeding to the Board and notice to show cause why the Acting General Counsel’s motion for default judgment should not be granted. Charges filed by Unite Here Local 57.

Cermak Fresh Markets (30-CA-105150) Milwaukee, WI, October 23, 2013. The Board denied Cermak Fresh Markets’ petition to revoke subpoenas duces tecum on the grounds that the subpoenas seek information relevant to the matters under investigation and describe with sufficient particularity the evidence sought, and the Employer has failed to establish any other legal basis for revoking the subpoenas. Charge filed by Milwaukee Workers Organizing Committee. Chairman Pearce and Members Miscimarra and Hirozawa participated.

Michigan State Employees Association d/b/a American Federation of State County 5 MI Loc Michigan State Emps Assoc. AFL-CIO (07-CA-103202, et al.) Lansing, MI, October 25, 2013. The Board denied the Respondent’s motion for partial summary judgment, as the Respondent failed to establish that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Charges filed by an individual and by Central Office Staff Association. Chairman Pearce and Members Miscimarra and Hirozawa participated.

NCP International, Inc. (15-CA-101501) Henderson, TN, October 25, 2013. The Board denied the Employer’s Petition to Revoke two subpoenas duces tecum. With respect to one of the subpoenas, which was directed to the Employer’s custodian of records, the Board denied the petition to revoke as lacking in merit. As to the other subpoena, which was directed to a claims representative at the Employer’s third-party representative for workers’ compensation claims, the Board denied the petition on the ground that the Employer lacked standing to seek revocation of a subpoena directed to a third party, unless the Employer asserts that the requested information is protected by a privilege or a right of privacy. In addition, the Board found that, even assuming that the Employer has such standing, the Employer had not established any valid basis for revoking this subpoena. Chairman Pearce and Members Miscimarra and Hirozawa participated.


Appellate Court Decisions

No Appellate Court Decision.


Administrative Law Judge Decisions

Pallet Companies, Inc. a subsidiary of IFCO Systems, N.A., Inc. (04-RC-093398; JD-69-13) Burlington, NJ. An errata to Administrative Law Judge Arthur J. Amchan’s Report and Recommendations on Objections was issued on October 21, 2013. Charges filed by United Food and Commercial Workers Union, Local 1350.

Professional Transportation, Inc. (12-CA-101034; JD(ATL)-27-13) Jacksonville, FL. Administrative Law Judge William Nelson Cates issued his decision on October 22, 2013. Charge filed by International Brotherhood of Teamsters Local 512.

FAA Concord H, Inc. d/b/a Concord Honda (32-CA-066979, et al.; JD(SF)-48-13) Concord, CA. Administrative Law Judge Eleanor Laws issued her decision on October 23, 2013. Charges filed by Machinists Automotive Trades District Lodge No. 190, Automotive Machinists Lodge No. 1173.

Purple Communications, Inc. (21-CA-095151, et al.; JD-75-13) Corona and Long Beach, CA. Administrative Law Judge Paul Bogas issued his decision on October 24, 2013. Charges filed by Communications Workers of America, AFL-CIO.

Marquez Brothers Enterprises, Inc. (21-CA-078519; JD(SF)-49-13) Industry, CA. Administrative Law Judge Jeffrey D. Wedekind issued his decision on October 25, 2013. Charge filed by Teamsters Local 630, International Brotherhood of Teamsters.

Standard Parking, Imperial Parking, Ampco System Parking d/b/a ABM Parking Services, Laz Parking, Interpark, individually and on behalf of Chicago Parking Association (13-CA-071259; JUD-76-13) Chicago, IL. Administrative Law Judge Geoffrey Carter issued his decision on October 25, 2013. Charge filed Teamsters Local No. 727.

The Fund For the Public Interest (19-CA-094311; JD(ATL)-28-13) Portland, OR. Administrative Law Judge Margaret G. Brakebusch issued her decision on October 25, 2013. Charge filed by Communications Workers of America, Local 7901, AFL-CIO.

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