Today’s Labor Updates:

Select events and news from the world of organized labor

March 2016

Select events and news from the world of organized labor

   

Organizing

After passage of legislation in Minnesota allowing state-sponsored childcare providers to seek union representation, American Federation of State, County and Municipal Employees Council 5 lost its bid, by a 1,014 to 392 vote, to unionize Minnesota childcare workers.

  

The Service Employees International Union (SEIU) Local 509 filed a petition seeking to represent about 275 adjunct and salaried faculty members at Boston University. The local already represents about 3,500 educators in the Boston metro area. The filing is part of SEIU’s national “Faculty Forward” representation campaign. 

  

Graduate teaching and research assistants at Yale University who have been pressuring the school to recognize and bargain with a graduate employee union have affiliated as a UNITE HERE local.

  

Nearly a year after withdrawing a request for the National Labor Relations Board (NLRB or Board) to conduct a representation election, the International Association of Machinists (IAM) is renewing its bid to organize at least 3,000 workers at the Boeing Co. jet assembly plant in South Carolina. The union is encouraging Boeing workers to sign authorization cards using electronic signatures.

  

The Communications Workers of America (CWA) withdrew its petition for an NLRB representation election days before ski instructors at Beaver Creek Resort in Avon, Colo. were scheduled to vote on representation. The CWA District 7 office in Greenwood Village, Colo. submitted a petition for a secret ballot election to represent 288 full-time ski instructors at the resort. However, the union cancelled the election after the NLRB Region 27 Acting Director sided with the employer on its challenge to the proposed size of the bargaining unit, determining that it was appropriate to include an additional 472 part-time instructors in the unit.

  

The NLRB certified the results of a September 2015 representation election among technical and service workers at Children’s Hospital and Research Center in Oakland, Calif., as a win for the National Union of Healthcare Workers (NUHW), dismissing objections filed by the SEIU, which had petitioned for the vote. NUHW just edged out SEIU, with 153 votes to 145 for SEIU. The NUHW has represented the workers since 2012, and the election represents the latest chapter in a long-running rivalry between the two unions.

  

According to NLRB data, the Board conducted about 10 percent more representation elections in 2015 than in 2014. However, despite conducting approximately 150 more elections in 2015, the union win rate held steady at 69 percent. The International Brotherhood of Teamsters (IBT or Teamsters) and the SEIU were the two unions participating in and winning the most elections in 2015.

  

According to Bloomberg BNA reported data, overall union membership in the AFL-CIO lost 65,000 members over the past year.

   

Strikes & Labor Disputes

Unrepresented subcontracted service workers, including baggage handlers, cabin and terminal cleaners, customer service agents, ramp workers, security officers, skycaps, and wheelchair attendants, at 10 airports in nine cities conducted their largest-ever “unfair labor practice” strike in an ongoing campaign to persuade contractors to improve workplace safety and pay a minimum hourly wage of $15. The one-day strikes took place in Boston, Chicago, Broward County, Fla., Los Angeles, Newark, Philadelphia, Seattle, Washington, D.C., and in New York City at LaGuardia and John F. Kennedy airports. The strikes are part of the SEIU’s drive to organize airport service workers nationwide. 

 

Major Contract Settlements & Negotiations

Data compiled by Bloomberg BNA showed that the average first-year wage increase so far in 2016 was 2.7 percent, the same as reported in the comparable period of 2015. The median first-year wage increase for settlements reported to date in 2016 was 2.3 percent, the same as reported in 2015.

  

CWA District 6 and AT&T Mobility LLC reached a tentative agreement on a four-year contract covering 9,400 workers in the Southwest. If ratified, the proposed agreement would replace a contract that expired in February and cover AT&T’s wireless services division employees in Arkansas, Kansas, Missouri, Oklahoma, and Texas.

  

United Steelworkers and Allegheny Technologies Inc. settled an agreement on a four-year contract covering 2,200 workers at 12 facilities across the country. The agreement is conditioned upon the union’s withdrawal of charges it filed with the NLRB stemming from ATI’s months long lockout of the unionized workforce. Key contract terms include new authority for ATI to outsource certain job functions, employee contributions to health care coverage for the first, defined benefit pension restrictions and modest wage improvements.

  

The Writers Guild of America East (WGAE) and Gawker Media LLC settled a three-year contract covering 99 editorial employees. The agreement is the first since the WGAE launched its campaign to organize digital newsroom employees in 2010. For full-time employees, the ratified deal at Gawker includes a minimum $50,000 yearly salary, a grievance process, an at-will employment clause, and annual raises of 3 percent. The contract also includes certain rights for freelancers. 

  

Following more than a year of negotiations, members of UNITE HERE ratified a new labor contract covering 9,000 employees of airline food provider LSG Sky Chefs. Terms include $1.10 per hour raises through 2018, an extra day of paid sick leave and a pilot program that will transfer LSG Sky Chefs workers in California from a company health plan to a UNITE HERE health plan.

  

Members of the California Nurses Association/National Nurses United overwhelmingly ratified two four-year contracts with nonprofit hospital chain Sutter Health covering 3,500 registered nurses at two medical facilities. The agreements cover 1,800 nurses at Alta Bates Summit Medical Center sites in Berkeley and Oakland and, for the first time, about 1,700 nurses at California Pacific Medical Center (CPMC) in San Francisco. Contract terms include wage increases ranging from 20 percent to 28 percent over term, depending on each nurse’s years of service with Sutter. The CPMC contract also includes language establishing an Ebola standard, which allows for the union and Sutter Health to create a committee that addresses health and safety issues tied to Ebola.

  

  

 Licensed practical nurses and other technical employees at Danbury Hospital and New Milford Hospital in Connecticut represented by the state’s affiliate of the American Federation of Teachers have ratified a first collective bargaining agreement. The group of 260 workers–including nurses, surgery and radiology technicians, and respiratory therapists–voted for AFT representation in November 2014. 

  

New Jersey Transit and its railroad-worker unions reached a tentative agreement on wages and benefits, two days before a scheduled strike that threatened to strand tens of thousands of Manhattan-bound commuters. The new contract, which is still pending ratification, will run through the end of 2019. 

  

The Association of Flight Attendants-CWA reached a tentative agreement with Spirit Airlines on a five-year contract for 2,200 employees after two previous deals failed. If ratified, the proposed contract would end nearly four years of bargaining. Details were withheld until leaders of Spirit approve the agreement, although the accord reportedly includes wage increases and work rule improvements. 

  

The Bakery, Confectionery and Tobacco Workers and Grain Millers union (BCTGM) announced that 277 workers at Mondelez International Inc. are working their last shifts at a plant in Chicago. The layoffs were the first part of a downsizing at the Nabisco Chicago Bakery that was announced earlier in 2015. The union represents about 4,000 workers at several Mondelez plants. Modelez and BCTGM’s prior bargaining agreement expired in February, and the company presented a “last, best and final” offer earlier this month. Contract negotiations between the parties are set to resume in April.

  

Mills College adjunct instructors represented by SEIU Local 1021 and the Oakland, Calif., liberal arts college reached their first collective bargaining agreement. More than 200 instructors are covered by the pact, which guarantees semester, one-year, two-year, and three-year contracts based on seniority with a defined pathway to full-time, salaried positions. Wage increases, which take effect immediately, average 15-30 percent. Starting instructors’ salaries rose from $5,000 per course to $6,000-$8,000. 

  

According to a long-time National Mediation Board member, Harry Hoglander, the failure rate for tentative agreements in the airline industry has risen more than fourfold in recent years, in part because of an uncontrolled explosion of misinformation that union members receive through social media. 

 

Administrative, Court & Other Decisions

By an equally divided vote, the Supreme Court issued a one-line ruling affirming a Ninth Circuit decision that rejected a First Amendment challenge to public-sector union fees. Although the decision is non-precedential, it is significant for what it does not do–namely, overturn Abood v. Detroit Board of Education, an important and often-criticized decision favoring public sector unions. Before Justice Antonin Scalia’s death, observers expected a 5-4 vote in favor of a group of California public-school teachers looking to overturn Abood precedent allowing union fee mandates for public employees. For more details, see our client briefing, Equally Divided Supreme Court Affirms Ninth Circuit in Public Unions Case. Friedrichs v. California Teachers Association.

  

The U.S. Court of Appeals for the Seventh Circuit ruled that the NLRB had substantial evidence supporting its determination that a staffing company unlawfully fired an employee who participated in a brief protest of a supervisor’s treatment of another employee. Though accounts of what happened on the job differed between the company and the employees, the Seventh Circuit supported the NLRB’s affirmation of an Administrative Law Judge’s (ALJ) finding that the company unlawfully discharged the employee after complaining about the treatment of a coworker. Staffing Network Holdings v. NLRB.

  

The NLRB held that Dish Network illegally prohibited workers from engaging in concerted activity in work areas during nonwork time. A former Dish Network employee brought charges after he was fired for trying to get coworkers to join his wage and hour lawsuit while on work premises. Dish Network contended the employee was fired for failing to abide by its rest break procedures, but the NLRB found that was pretext for its decision to terminate the employee for organizing activities while on site. The NLRB ordered Dish Network to amend its solicitation policy to reflect the decision, and ordered the employee be reinstated with back wages. Dish Network, LLC.

  

Enforcing an NLRB order, the U.S. Court of Appeals for the Eighth Circuit held that the NLRB’s Specialty Healthcare standard for determining appropriate units in union representation cases is a reasonable interpretation of federal labor law. In Specialty Healthcare, the NLRB found that in evaluating the appropriateness of the unit sought in the petition, it had to first determine whether employees in the petitioned-for unit are “readily identifiable as a group” and whether “they share a community of interest using the traditional criteria.” Under Specialty Healthcare, if the NLRB determines a bargaining unit is appropriate, a party proposing enlarging the unit must demonstrate that the additional employees share an “overwhelming community of interest.” The Eighth Circuit ruled that NLRB’s two-step Specialty Healthcare analysis should be allowed and rejected FedEx’s contention that dockworkers at other locations should also be grouped with the drivers. FedEx Freight, Inc. v. NLRB.

  

The U.S. Court of Appeals for the Fourth Circuit ruled that judicial involvement in a labor dispute between the United Mine Workers of America and Peabody Energy Corp. subsidiaries was premature under the complete arbitration rule. The court reversed a district court decision to adjudicate a dispute that had already begun as a bifurcated arbitration, stating “[u]nder the complete arbitration rule, the arbitrator should have been given the opportunity to resolve both the liability and remedial phases of the dispute between the Companies and the Union before it moved to federal court.” Peabody Holding Co. v. Mine Workers.

  

An NLRB ALJ dismissed a complaint on behalf of 1199 SEIU-United Healthcare Workers East workers against Baptist Health Nursing and Rehabilitation Center Inc. of Scotia, ruling that the New York nursing home did not need to bargain a decision to terminate two employees pending negotiation of a first labor agreement. The ALJ ruled that the U.S. Supreme Court’s Noel Canning decision, which invalidated President Barack Obama’s 2012 recess appointments to the NLRB, invalidated the Board’s 2012 decision in Alan Ritchey, obligating bargaining in an interim period. Therefore, the ALJ determined that under the controlling Board precedent, the 2002 Fresno Bee decision, the employer was not obligated to bargain until a bargaining contract is reached. Baptist Health Nursing and Rehabilitation Center, Inc.

  

An NLRB ALJ ruled that LA-based Cedars-Sinai Medical Center unlawfully maintained mandatory arbitration agreement that employees could reasonably construe as restricting their right to file charges with NLRB, and by enforcing the agreement in court to preclude class or collective action by its employees. The ALJ ordered Cedars-Sinai to “rescind the mandatory and binding arbitration agreements in all of its forms, or revise them ….” The hospital is currently a defendant in a class action in a California state court, in which it moved to compel arbitration of the charging party in this case. Cedars-Sinai Medical Center.

  

In an unpublished opinion, the U.S. Court of Appeals for the Fourth Circuit enforced a Board bargaining order against a recycler of polyester fibers after production and maintenance employees at its South Carolina plant voted to be represented by Local 7898 of the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied-Industrial and SEIU. In refusing to bargain with the union, the company had argued that the union’s election victory should be set aside, because supervisors interfered with the employees’ “freedom of choice.” Looking at whether the individuals were supervisors, the appeals court conceded they had exercised some authority over other employees. However, the court said it was reasonable for the NLRB to find that they did not exercise the necessary independent judgment when doing things like assigning tasks or disciplining employees. Upholding the Board’s application of Oakwood Healthcare, Inc., the court found that there was “substantial evidence” to support the NLRB’s conclusion that four men who worked at the plant were not supervisors under the NLRA. The court also agreed with the Board that the employer did not carry its burden of proving its alternate claim that those employees, if not supervisors, nonetheless engaged in objectionable third-party conduct materially affecting the election. Pac Tell Group, Inc., d/b/a U.S. Fibers.

  

A Board majority held that an ALJ acted within her discretion in denying McDonald’s USA LLC’s efforts to subpoena documents from unions and other groups that were involved in a protest campaign against the national restaurant chain. The Board majority found that McDonald’s perception of the campaigns may be relevant to its defense, but the actual motives of the protest groups were not relevant to establishing a defense against unfair labor practice allegations. McDonald’s USA LLC.

  

An NLRB ALJ ruled that Quicken Loans violated federal labor law when it fired a banker accused of griping about the job in the restroom, saying the profanity-laced conversation was protected activity and that the man who overheard the exchange from a restroom stall accused the wrong employee. The ALJ ordered Quicken to rehire the employee and pay him for lost earnings, as well as remove workplace rules found to be unlawful restraints on employees’ rights to discuss working conditions. Quicken Loans. 

  

An NLRB panel found that a union representative did not act as the union’s agent when he reported an altercation with an Fiat Chrysler test driver to the company. The Board determined that the complaint about the altercation to the company’s human resources representatives ultimately was the cause of the driver’s termination, despite his record as an exemplary employee. However the NLRB found that the complaint in itself was not related to protected union activity. Autoworkers Local 509 ( Fiat Chrysler Automobiles Group).

  

The U.S. Court of Appeals for the D.C. Circuit reversed a Board panel’s 2-1 ruling that Dover Energy Inc. unlawfully threatened to discipline an employee, who was also a union steward, for frivolous information requests, finding that the requests were indeed frivolous and that no reasonable person would think the company’s warning barred legitimate, protected activity. The court determined that the NLRB’s decision in favor of the employee/shop steward, was not supported by the evidence. The employee had twice requested company information, saying it was for union business, but when the company contacted the union to verify the requests, the union responded that the employee was acting on his own. After the employee’s second request, the company warned him if he made similar requests in the future he might be fired. The circuit court found that reading the employer’s statement “in proper context,” showed that the remark was aimed at the steward repeatedly giving the company information demands that were not authorized by his United Auto Workers local and were not protected by the NLRA. Dover Energy, Inc. v. NLRB.

  

The Second Circuit upheld a Board decision that a union dealing with the New York Times and New York Post engaged in unfair labor practices by failing to tell non-union members that they did not need to pay full dues and by encouraging hiring based on union membership. Among other things, the court found that substantial evidence supported the Board’s findings that the union caused or attempted to cause employers to discriminate against certain employees by giving hiring preference to non-unit individuals based on their union membership or prior employment with another signatory employer. NLRB v. Newspaper & Mail Deliverers’ Union of N.Y. & Vicinity.

  

The Eighth Circuit held that an appeal filed by nine home health care workers challenging the denial of a preliminary injunction to stop Minnesota from holding an election and certifying a union as the workers’ exclusive representative must be dismissed as moot because those events already have occurred. The district court had denied as premature the workers’ first motion for a preliminary injunction to halt the election. The district court then denied a renewed motion for an expedited injunction. On appeal, the Eighth Circuit upheld the second denial as moot explaining that reversing the lower court’s denial of the injunction at this point would not adequately address the alleged harm the home care providers sought to prevent–that is, the election and certification of SEIU Healthcare Minnesota–because these have already occurred. Bierman v. Dayton.

  

The Eighth Circuit ordered a security services provider to bargain with a union representing mid-level officers at a Minnesota nuclear power plant, finding the company failed to meet its burden of showing the workers “were” supervisors. The circuit court found that there was “substantial evidence” to support the Board’s ruling against Securitas Critical Infrastructure Services Inc. The appeals court said Securitas had not shown that the officers who are referred to as lieutenants, exercised independent judgment when acting as “team leaders” in the event of an attack on the facility. Thus, the court found that the officers were not supervisors, and were appropriately part of the bargaining unit. Securitas Critical Infrastructure Servs., Inc. v. NLRB.

  

Following the D.C. Circuit, the Ninth Circuit became the second federal appellate court to rule that Lafe E. Solomon lacked the authority to continue serving as the NLRB’s acting general counsel once President Barack Obama nominated him in 2011 to serve a full term in the position. The appellate court rulings may now call into question the validity of at least some of Solomon’s actions from January 2011 until November 2013, when he was succeeded by Richard F. Griffin. A unanimous Ninth Circuit panel, found that the Federal Vacancies Reform Act sets conditions for an appointee serving as an agency’s acting officer and the president’s nominee, and Solomon’s continuing service was not covered by the statute. As such, the court found that the NLRB’s bid for an injunction, at Solomon’s direction, while it processed an unfair labor practices charge filed against Kitsap Tenant Support Services Inc. should be dismissed. Hooks v. Kitsap Tenant Support Services, Inc.

  

Legislation & Politics

The Department of Labor’s Office of Labor-Management Standards (OLMS) has published the long-awaited “persuader rule,” Interpretation of the ‘Advice’ Exemption in Section 203(c) of the Labor-Management Reporting and Disclosure Act. First proposed in June 2011, the persuader rule requires that employers disclose the hiring of a third-party labor relations attorney or other consultant to try to prevent its employees’ unionization attempts. This disclosure obligation arises if the consultant engages in persuader activities that go beyond the plain meaning of advice. Significantly, the newly published rule requires disclosure even if the consultant has no direct contact with workers. For more details, view our client briefing DOL Issues Final Persuader Rule. Meanwhile, according to data released by the Board the filing of election petitions slowed slightly in the past 11 months, with no significant change in the outcomes of cases in which the NLRB certified election wins or losses. 

  

An NLRB associate general counsel, Anne Purcell, who oversees the agency’s division of operations management, issued a memo to Regional Directors and other personnel acknowledging that the agency is facing a budget shortfall the rest of the fiscal year and suggesting various cost cutting measures, including working toward early settlements in unfair labor practice and election disputes. 

  

The NLRB confirmed that its Regional Director in Philadelphia, Dennis Walsh, who has faced criticism for his ties to the pro-union Peggy Browning Fund, was suspended without pay for 30 days at the end of December. The NLRB spokesperson declined to comment on the circumstances that led to the agency’s action.

  

Wisconsin Governor Scott Walker (R.) signed legislation, 2015 Wisconsin Act 203, that would bar a franchiser from being considered as an “employer” of a franchisee’s employees for the purposes of state law. The law undercuts the NLRB decision in Browning-Ferris Industries of California, Inc., in which the NLRB expanded the standard for joint liability under the NLRA. 

  

The Missouri House of Representatives passed a bill that would prevent public unions from withholding union dues, shop fees, or other fees from members without annual written authorization. The bill, HB 1891, passed the state Senate and is headed to the desk of Governor Jay Nixon (D.), who has declined to comment on whether he will veto, although he has vetoed similar legislation in the past. 

  

The International Longshore and Warehouse Union (ILWU) endorsed Sen. Bernie Sanders (I-Vt.) for president. The ILWU is the fifth national union to endorse Sanders, following National Nurses United, the Communications Workers of America, the American Postal Workers Union, and the Amalgamated Transit Union.

  

Former Secretary of State Hillary Clinton has garnered endorsements from a slew of other unions, including the IAM, the UFCW, the SEIU, the United Farm Workers, and the OPEIU.