• The Seventh Circuit held that employees cannot recover compensation under the FLSA for time spent donning and doffing safety gear when the employees’ collective bargaining agreement states that such time is not compensable. However, the terms of the contract did not affect the employees’ right to sue under state law. Workers at a Kraft Oscar Meyer plant in Wisconsin brought a lawsuit alleging that Kraft had violated the federal FLSA and Wisconsin wage and hour laws by failing to pay the employees for time spent putting on and taking off safety equipment. The collective bargaining agreement between Kraft and the employees’ representative, United Food and Commercial Workers Local 538, states that such time is not compensable. The Court of Appeals held that FLSA Section 203(o) permits an employer to exclude time an employee spends changing clothes at the beginning or end of the workday from the number of hours the employee works if the parties to a collective bargaining agreement agree to do so. The Wisconsin wage and hour law, on the other hand, contains no such exception that would bar the employees from pursuing a state-law action. The Court also concluded that federal wage law did not preempt the employees’ state-law claim since the FLSA permits states to set additional restrictions and resolution of the Wisconsin wage and hour claim did not require interpretation of the collective bargaining agreement. Spoerle v. Kraft Foods Global Inc., No. 09-2691.
  • The Sixth Circuit ruled that questions as to whether grievances made in the wake of a labor dispute are arbitrable are for a court, not an arbitrator. The case involved International Association of Machinists and Aerospace Workers members employed at Middletown Works in Middletown, Ohio. In 2007, Middletown and the union negotiated a new contract that included a transition agreement governing the first six months the members were back on the job following a lockout. The transition agreement specified, in narrow terms, the grievances that could be arbitrated during the transition time. The union filed 93 separate grievances, which Middletown denied on the ground that they were not arbitrable under the transition agreement. While the district court determined the issue of arbitrability was itself arbitrable, the Court of Appeals, in a 2-1 decision, held that the question of arbitrability is one for the courts and because the transition agreement excludes nearly all claims from the grievance and arbitration procedure outlined in the 2007 contract, the grievances were not arbitrable. Int. Ass’n. of Machinists and Aerospace Workers, AFL-CIO, Local Lodge 1943 v. AK Steel Corp., No. 09-3425.
  • The Ninth Circuit held that four supermarket chains that agreed to share profits in the event of a strike or lockout by their represented employees violated federal anti-trust laws. In 2003, three Southern California grocery store chains agreed to bargain with several United Food and Commercial Workers locals as a single multiemployer unit. The three chains privately agreed, along with a fourth chain bargaining independently, that in the event of a strike against any of the companies, all four would lock out their workers within 48 hours. The Court commented that this was a traditional labor tactic. The chains also agreed that in the event of a lockout or strike, any company that earned revenues above its historical market share among the four firms would redistribute 15% of its surplus revenues to the other companies according to an agreed formula. The Court of Appeals called this agreement anticompetitive on its face and held that it violated the federal Sherman Act. The Court also rejected the companies’ argument that they were exempt from the antitrust laws under the nonstatutory labor exemption because the exemption only apples to labor practices that are “essential to collective bargaining.” California v. Safeway Inc., No. 08-55671.
  • A federal judge issued a preliminary injunction prohibiting members of United Food and Commercial Workers at a Mott's processing plant in Texas from placing strike-related labels on food and beverage products manufactured by Mott's. The workers were supporting a strike by members of an affiliated union in upstate New York by placing strike-related labels on Mott's products in grocery stores. In issuing the injunction, the judge determined that the UFCW members had violated federal anti-tampering laws and that Mott's stood to incur irreparable injury if the members’ acts continued. Mott’s LLP v. United Food and Commercial Workers, No. 3:10-cv-01315 (N.D. Tex. August 5, 2010).
  • The NLRB held that SEIU Local 715 committed an unfair labor practice by refusing to respond to requests for information by two Palo Alto area hospitals about the reorganization and merger of the local because such information was relevant to the hospitals’ interest in determining whether Local 715 continued to exist. One month after the hospitals had settled a contract with Local 715, UHW representatives informed the hospitals that it was representing the barging unit. In response to the hospitals’ inquiry, Local 715 claimed it continued to represent the unit but had entered into an agreement with UHW. The hospitals then refused to bargain with UHW until Local 715 provided documentation of its relationship with UHW. Local 715 presented its service agreement with UHW but the hospitals refused to recognize it as the bargaining unit until proper steps were taken to change the representation. After Local 715 refused to provide requested information as to its status on numerous occasions, the hospitals filed an unfair labor practice. The ALJ and NLRB determined that unions have a parallel duty under the NLRA to furnish relevant information necessary for an employer to fulfill its contractual obligations. The Board likened the situation to that of an alter-ego company and determined that when an employer requests information pertaining to an outside, third-party union, it must have an object, factual basis for believing that such information would be relevant in determining the union to which it has a collective bargaining obligation and that the hospitals met their burden in this case. Service Employees Int’l Union Local 715, 355 NLRB No. 65.
  • The NLRB ordered a third decertification election be held at Good Samaritan Hospital in Los Angeles to determine whether 400 employees will continue to be represented by United Healthcare Workers-West. The Board affirmed the ALJ’s determination that the union had interfered with the employees’ free choice by sending bargaining unit members checks purportedly containing over-deducted union dues that were considerably more than that which the members were entitled to. Two previous votes favoring continued representation by UHW have been overturned after the Board upheld the hospital’s objections. Good Samaritan Hosp., No. 31-RD-1555.
  • In a 2-1 decision, the NLRB ruled that Mandalay Bay Resort & Casino management in Las Vegas interfered with a June 2008 election by its security officer employees to determine representation by the International Union, Security, Policy and Fire Professionals of America. The majority found that Mandalay Bay reduced overtime work opportunities for its full-time officers in January 2008 and that the officers’ complaints to the company were not addressed at that time. In April 2008, SPFPA filed a petition for an NLRB election and, in response, the company began conducting focus meetings during which high-level management met with the security officers to discuss organization and their job concerns. During at least two meetings, management told the officers that the reduction in overtime opportunities was a “failed strategy” and that the policy was being “looked at.” The officers’ overtime opportunities were subsequently restored near the time of the June election. The Board majority stated its long-standing rule that in the absence of a previous practice of doing so, an employer’s solicitation of grievances during an organizational campaign is objectionable when the employer expressly or impliedly promises to remedy those grievances. The majority held that Mandalay Bay management’s focus meetings constituted solicitation of employee grievances and that their statements created an implied promise to remedy the grievances. Member Schaumber, in dissent, found that Mandalay Bay had an established practice of listening to employee complaints at pre-shift meetings and that the “failed strategy” statement represents a permissible and protected expression of opinion. Mandalay Corp. d/b/a Mandalay Bay Resort & Casino, 355 N.L.R.B. No. 92.
  • The NLRB ruled 3-2 that a state-funded operator of group homes for developmentally disabled individuals failed to show that a New York law that limits the use of state funds to encourage or discourage employees from seeking union representation interfered with a June 2003 election in which the group home workers chose representation by UNITE HERE. The majority found that the Company failed to show that the state-law sufficiently impacted eligible voters to set aside the election results because the law does not prohibit campaign activity, or obtaining funds from alternative sources, but merely limits the use of state funds to support specified activities. The dissenters contended that the New York law is preempted by the NLRA (the majority assumed it was not) and that the majority does not adequately account for the power of the state to control or limit employer behavior during elections. Indep. Residences Inc., 355 N.L.R.B. No. 153.
  • The full NLRB, in several 3-2 decisions, has granted review in two sets of cases that will require the Board to revisit prior precedent regarding when a union’s support among employees can be challenged. One set of cases involves issues of voluntary recognition governed by the Board’s 2007 Dana Corp. decision, which overruled 40-year-old precedent in holding that when an employer agrees to voluntarily recognize a union based on a majority of signed union authorization cards, it must post notice that employees have a right to petition to decertify or support a rival union within 45 days. The second set involves the question of whether the Board should overrule its 2002 MV Transportation decision which held that a successor employer’s obligation to recognize and bargain with an incumbent union may be challenged by the employer, employees or rival union. The Board has invited interested parties to file amici briefs by November 1 on specified issues. Rite Aid Store #6473, 355 N.L.R.B. No. 157; UGL-UNICCO Serv. Co., 355 N.L.R.B. No. 155.
  • The National Mediation Board determined that Delta Airlines interfered in the February 2010 election for 91 technicians by offering significant raises to nonunion technicians during the election, announced eight months before the raises were to take affect, and conducting meetings to influence workers. As a result, the technicians will have a new representation election. In re Application of Int’l Ass’n of Machinists, 37 N.M.B. No. 53.
  • Communications Workers of America members, and employees of AT&T subsidiary Southwestern Bell, have filed a Fair Labor Standards Act collective action in the Eastern District of Missouri claiming that because Southwestern Bell failed to pay them for time spent representing other employees in labor-management meetings, they are entitled to unpaid overtime wages. Under the terms of their contract, CWA must provide a union representative to be present for investigatory meetings if requested by a member who is being investigated for misconduct. Southwestern Bell typically schedules its investigatory meetings during employees’ work time. Kayser et. al. v. Southwestern Bell Telephone Co., No. 4:10-cv-01495 (E.D. Mo.).
  • The Labor Department’s Office of Labor-Management Standards is proposing to revise Form LM-30 to address questions left by the 2007 amendments to the form. The LM-30 is an annual financial form submitted by union officials and union employees and is intended to implement the Labor-Management Reporting and Disclosure Act’s requirement that such individuals publicly disclose potential conflicts between their personal financial interests and their duty to the union and its members. The Department of Labor said its proposal would clarify requirements regarding union stewards and high level union officials and the procedure for reporting various payments.
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