Organizing
A unit of about 200 FedEx freight city and over-the-road drivers at a Charlotte, N.C. freight service center voted to decertify the International Brotherhood of Teamsters (IBT) Local 71 as their bargaining representative. IBT Local 71 has represented the drivers since November 2014. The United Auto Workers (UAW) submitted a representation petition for a unit of approximately 6,400 production and manufacturing workers at a Nissan Motor Co. plant in Canton, Miss. The union has been working to organize the plant since the early 2000s. A Nissan spokeswoman stated that the company does “not believe that UAW representation is in the best interest of Nissan Canton and its workers.” A National Labor Relations Board (NLRB or Board) Regional Director approved the representation election results at three Head Start facilities in Ohio. Employees voted 37 to 36 for representation by the American Federation of State, County, and Municipal Employees (AFSCME). The company objected to the election results, including based on claims that a union observer had been seen exchanging money with a voter. The Regional Director affirmed the hearing officer’s findings rejecting the company’s objections, finding no evidence of a compromised election. Nearly 300 service workers voted to join the Service Employees International Union (SEIU) at Cooley Dickinson Hospital in Massachusetts, owned by Partners HealthCare. The election process at the hospital began on May 15, with service and technical workers voting in separate elections. The hospital’s 100 technical workers’ vote is still under review. In March, the SEIU also organized 500 workers at another Partners’ hospital. In 2016, Partners and the SEIU announced a “strategic partnership” to work together, after the union dropped a statewide ballot initiative on hospital pricing. Santander USA Holdings Inc.’s call center workers are exploring representation with the Communications Workers of America (CWA). Worker representatives met with Democrats in Congress to raise concerns about what they consider to be aggressive collections tactics by the company. The CWA has been waging an effort for years to organize tellers, personal bankers, and call-center staff at major U.S. banks. Contracted food service workers in Facebook’s Menlo Park headquarters voted to unionize. The 562 workers, employed by Flagship Facility Services, are pushing for higher wages and cheaper health care to combat Silicon Valley’s rising rents. The workers, represented by UNITE HERE, hope to start negotiations soon. A unit of 16 workers at Pleasure Chest, a “sex toy superstore” in New York City made famous by HBO’s former Sex and the City program, have elected the Retail, Wholesale, and Department Store Union to serve as their exclusive bargaining representative. Pleasure Chest and the union have commenced negotiations for a collective bargaining agreement. Strikes & Labor Disputes Approximately 150 IBT Local 24 members, out of a total of some 250 employees, went on strike starting June 26 at the Coca-Cola distribution facility in Akron, Ohio following failed contract negotiations. The plant was taken over earlier this year from Coca-Cola by Charlotte-based Coca-Cola Bottling Co. Consolidated, an independent Coca-Cola bottler. International Union of Operating Engineers Local 542 and the General Building Contactor’s Association in Philadelphia announced that they have reached a tentative bargaining agreement. The tentative agreement resolves a one-week strike that had effectively halted construction throughout the city. The IBT held a rally outside of New York’s Presbyterian Hospital as part of a protest campaign against the hospital’s office furniture supplier, Waldner’s Business Environments Inc. In May, the union, which has represented employees at Waldner’s for more than 50 years, filed unfair labor practice charges, claiming Waldner’s refused to bargain, but instead had locked out union-represented workers and replaced them with subcontractors. The hospital states that it is neutral in the labor dispute. Following 15 months of failed negotiations, the Massachusetts Nurses Association, representing about 1,200 nurses at Tufts Medical Center, held a one-day strike. The parties were unable to agree on the union’s push for higher wages and the hospital’s proposed new pension program. The hospital bought in 320 replacement nurses for five days, stating that any nurses who participated in the one-day strike would not be able to return to work for five days. About 150 workers, represented by SEIU Local 105, at the Denver International Airport went on a one-day strike in protest over their wages and benefits. The strikers work for three private contractors: PrimeFlight, which provides cabin cleaning services to United Airlines; G2, which provides wheelchair services for passengers; and AirServe, which provides wheelchair and baggage services. Michigan’s largest public employee union filed a grievance against Western Michigan University, after the university used a herd of 20 goats to clear 16-acres of vegetation. The union is arguing that the goats are essentially “scab” labor performing bargaining unit work. The university claims the goats provide a more environmentally friendly, cost-effective means of clearing the vegetation and their use does not violate the parties’ collective bargaining agreement. Major Contract Settlements & Negotiations Data compiled by Bloomberg BNA through July 10, 2017, for all settlements, shows that the first-year wage increase was 2.6 percent, compared with 2.8 percent from 2016. The median first-year wage increase was 2.3 percent, compared with 2.5 percent last year, and the weighted average was 3.4 percent, compared with 3.9 percent. Through July 21, however, collectively bargained wage increased in unionized U.S. factories matched last year’s level after a six-month lag. The average manufacturing-sector contract in 2017 promised workers a 2.3 percent increase in wages, the same average as 2016. Some 595 trash haulers represented by Teamsters Local 70 voted to ratify three contracts with different Alameda County, Calif. waste management companies. The five-year contracts, ratified on July 2, June 25, and June 29, respectively, provide wage increases tied to inflation in the Bay Area, and add a new death benefit program for the family members of workers. SAG-AFTRA reached a three-year preliminary agreement with the Alliance of Motion Picture and Television Producers, representing major studios and production companies, including Netflix. The tentative agreement, covering actors in movies, television, and new media, is valued at $256 million, and includes wage increases of 8.5 percent over the term of the contract. The union also reported that the deal includes “significant improvements” in the residuals paid to actors on streaming platforms such as Netflix and Amazon, and revised the rules governing travel for TV performers. The Brotherhood of Locomotive Engineers and Trainmen (BLET) ratified a first-ever contract with the Western New York & Pennsylvania Railroad (WNY&P). The contract covers 12 engineers and conductors and runs through December 31, 2021. Previously, the WNY&P had three rates of pay for locomotive engineers and conductors. According to the BLET the new labor agreement transitions wage scales to a single locomotive engineer hourly rate and a single conductor hourly rate by 2021. Over the term of the agreement, wage increases will range from 15.91 percent to 28.44 percent for locomotive engineers and from 15.91 percent to 33.75 percent for conductors, dependent on prior individual pay. Newport Steelworkers and Newport News Shipbuilding reached a tentative agreement on a 52-month contract covering almost 10,000 workers. The agreement reportedly includes wage increases of up to $15,000 for some workers, an improved pension plan, and reduced health care costs. Employees at four Guitar Center stores located in New York; Chicago; Las Vegas; and Danvers, Mass., ratified their first-ever union contract. According to the union, the contract provides 120 employees base pay, sales commissions, and reduced health care premiums. After seven years of negotiations, the Air Line Pilots Association ratified a four-year contract with Mesa Airlines Inc., covering 1,200 workers. The contract reportedly provides increased pay, and improvements for scheduling, vacation, and retirement benefits. IBT members ratified a new three-year collective bargaining agreement with Clare Rose, the exclusive Long Island distributor of Anheuser-Busch In Bev products, resolving a 12-week strike. The agreement, covering 130 delivery drivers, restores pension contributions but removes a sales function that had been responsible for part of the drivers’ pay. Union officials stated that while the sales function was eliminated and some workers will experience pay reductions, the overall compensation package exceeds industry standards. National Public Radio (NPR) and SAG-AFTRA, representing 435 NPR employees, reached a tentative three-year agreement. The agreement provides for salary increases and does not include a two-tiered wage system that NPR had proposed during bargaining. The parties’ negotiations were assisted by a federal mediator, the first time in the union’s 40-year relationship with NPR that mediation had been required to conclude negotiations. Teamsters Local 251 and Twin River Casino reached a tentative agreement after a two-day worker strike. The three-year agreement, covering over 300 food and beverage employees, improves workers’ health benefits and provides 3 percent wage increases for non-tipped employees. Additionally, the company dropped demands for the right to subcontract parking valet work to non-union operators. Unionized textile workers represented by UNITE HERE Local 51 overwhelmingly approved a new contract with Trelleborg AB. The parties have been negotiating a new agreement since Trelleborg bought the Fair Haven Heights factory from Urektek in November 2014. In order to reach agreement, the workers conceded guarantees against outsourcing that were present in their last contract. Administrative, Court & Other Decisions The U.S. Court of Appeals for the Second Circuit reversed a federal district court’s May 2016 ruling that the National Labor Relations Act’s (NLRA) duty of fair representation bars New York enforcement officials from investigating and reaching decisions in cases accusing a union of discriminating against the individuals it represents under the New York State Human Rights Law (NYSHRL). The court found the NLRA does not preempt the NYSHRL from being applied when unions are accused of discriminatory activity. Hector Figueroa v. Helen Foster. The U.S. Court of Appeals for the Fifth Circuit struck down the majority of an April 2016 NLRB ruling that had invalidated various T-Mobile and MetroPCS employee handbook rules. The circuit court did uphold the NLRB’s finding that a rule banning workplace recordings was illegal, but struck down its holding that other rules were illegal, including rules regarding workplace behavior. The NLRB’s decision had found that various rules violated federal labor law by discouraging unionizing or other concerted activity. The Fifth Circuit, in contrast, found that the workplace integrity rule which prohibits employees from arguing, fighting, or treating each other with respect, a rule that encourages employees to “maintain a positive work environment,” and an acceptable-use policy barring access to electronic information without approval, were legal under the NLRA. T-Mobile USA Inv. v. NLRB and Communications Workers of America. The U.S. Court of Appeals for the Seventh Circuit upheld Wisconsin’s right-to-work law, which prohibits agreements that require union membership as a condition of employment and mandate “fair share fees” from nonmembers. The court held that the union plaintiffs had failed to provide a compelling reason for them to revisit a 2014 ruling, which upheld a similar right-to-work law in Indiana. Wisconsin and Indiana are two of 28 states with right-to-work laws on the books. International Union of Operating Engineers Local 139 and 420 v. Brad Schimel and James Scott. The U.S. Court of Appeals for the Eighth Circuit, overruling the NLRB, found that a Jimmy John’s franchisee had the right to fire workers who used “false and misleading claims” about food safety in a labor dispute. The Board had determined that a leaflet suggesting a link between customer safety and the company’s sick leave policy was protected activity under federal labor law. The Eighth Circuit disagreed, finding that the NLRB did not adequately consider the effects of such false accusations and was too protective of tactics that can threaten a company’s reputation. The court further held that the attack was “maliciously motivated” and not accurate in its assertion that workers are not allowed call in sick. MikLin Enters., Inc. v. NLRB. An NLRB Administrative Law Judge (ALJ) ruled that a supermarket and its owner who sued a union must reimburse the union for its legal defense costs. While the ALJ held that the supermarket and its owner’s claim that the union engaged in an illegal secondary boycott was legitimate, the ALJ found that the state law claims for defamation and interference with contract were unreasonable and were pursued unlawfully, in retaliation for union activity. ART, LLC. An NLRB ALJ ruled that Pacific Coast Supply LLC, a California Lumber company, did not violate the NLRA by warning employees about that risk that they could be permanently replaced if they struck over wages and benefits. The Board’s General Counsel (GC) argued that the company had illegally threatened workers by distributing a letter that warned employees if they participated in an economic strike, the company has the right to hire replacement workers. The GC further argued that the letter violated the workers’ Laidlaw rights, which provide that economic strikers who unconditionally apply for reinstatement at a time when their positions are filled by permanent replacements are entitled to be placed on a preferential recall list and reinstated when replacements depart. The ALJ rejected the GC’s position, holding that the company was not required to inform employees that they would eventually be entitled to reinstatement. Pacific Coast Supply, LLC. An NLRB ALJ held that Walden Security Inc., a court security government contractor, must recognize and bargain with the labor union that represented its predecessor’s staff. The ALJ found that the contractor’s assurances to employees, including that it expected a “seamless” transition, together with the fact that it hired 381 of the predecessor’s 406 employees, created an obligation to recognize and bargain with the union. The ALJ further found that when Walden changed pay and benefits for the employees without notifying or bargaining with the union, it acted illegally, because it had made “perfectly clear” that it planned to retain all of the unit employees, pursuant to the Supreme Court’s holding in NLRB v. Burns Security Services. Walden Sec., Inc. A divided NLRB held that lacrosse referees in Pennsylvania are employees of the state athletic association, not independent contractors, and can therefore be represented by the Professional Employees International Union. The Board found the state athletic association had broad authority for selecting and referring officials to local schools and that the lack of supervision reflects the nature of officiating, rather than independent contractor status. Pa. Interscholastic Athletic Ass’n. A Maryland federal district court ruled that a Washington, D.C. area transit system’s labor union must redo an internal union election because it did not give members a chance to run or vote, in violation of the LaborManagement Reporting and Disclosure Act’s union election requirements. The union conceded it had failed to comply with the requirement that members receive at least 15 days prior notification of an upcoming election. The ALJ found that the number of members who did not vote in the election was large enough that it could have resulted in a different candidate winning and voided the election, ordering a new election to occur under Department of Labor supervision. Hugler v. Local 689, Amalgamated Transit Union. An NLRB ALJ found that Cinelease Inc., a lighting rental company in the entertainment industry, violated the NLRA when it ordered immigration status rechecks. The company had ordered employees to provide additional work authorization documentation and interrogated workers concerning Teamsters activity. The ALJ found that the company’s haste in ordering re-checks indicated an unlawful motive. The company’s removal of an employee, after giving him just one day to provide work-authorization documents, was found to have been motivated by his union activity. Cinelease Inc. and Studio Transportation Drivers Local 399 of the International Brotherhood of Teamsters. Legislation & Politics California’s new state budget package allows labor unions representing California state and local government workers to be given early access to newly hired employees. The measure, AB 119, which took effect on July 1 and was signed into law as part of the 15 bills that make up California’s fiscal budget, allows unions the right to be present and to provide information to new hires at employee orientation sessions across all of the state’s 21 bargaining units, as well as sessions for local government employees. The law requires that the employer and the union meet and confer to determine details of the union presentations to new hires. North Carolina Senate Bill 615, which places restrictions on labor agreements and union dues deductions, was signed into law by Gov. Roy Cooper. The bill passed both state legislative chambers by an over-60-percent margin, which would have been enough to override a veto. The bill specifically bars the use of payroll deductions for farmworkers’ union dues and prohibits farm owners from settling lawsuits by agreeing to union contracts or representation. Labor groups, including the Farm labor Organizing Committee (FLOC), opposed the measure. FLOC plans to challenge the law’s constitutionality as infringing on farmworkers’ rights to freedom of association. G. Roger King, a private practice management attorney, withdrew his name for consideration for the position for NLRB General Counsel. President Trump is expected to fill the General Counsel position with a Republican when the current General Counsel’s term ends in November 2017. Republicans on the Senate Health, Education, Labor and Pensions Committee signed off on President Trump’s two nominees to fill vacant seats on the five-member NLRB, over objections from Senate Democrats. The committee members voted 12 to 11 along party lines to advance the nominations of William Emanuel, a management-side labor attorney, and Marvin Kaplan, a government attorney, to the Senate floor. A confirmation vote date has not yet been set. Charlotte +1 (704) 350-7700 Wood W. Lay Chicago +1 (312) 558-5600 Derek Barella Shane W. Blackstone Daniel J. Fazio Aviva Grumet-Morris William G. Miossi Michael P. Roche Rex L. Sessions Cardelle B. Spangler Joseph J. Torres Hong Kong +852-2292-2000 Simon C.M. Luk Los Angeles +1 (213) 615-1700 Michael S. Chamberlin Monique Ngo-Bonnici Laura R. Petroff Marcus A. Torrano Emilie Woodhead New York +1 (212) 294-6700 Deborah S.K. Jagoda Scott E. Landau Stephen L. Sheinfeld William M. Sunkel San Francisco +1 (415) 591-1000 Joan B. Tucker Fife Shanghai +86 (21) 2208-2600 Brinton M. Scott Washington D.C. +1 (202) 282-5000 William G. Miossi Texas Bill S.B. 7, ending the state’s practice of collecting union dues from public employees’ paychecks, was approved by the state senate. The bill now goes to the house, where a similar measure failed to pass during the state’s regular legislative session. The measure would apply to state employees. Texas is a “right-to-work” state where workers are not required to pay dues or join labor unions and must opt-in before membership dues are deducted from their paychecks. Crime, Corruption & Other Misdeeds The former president of a CWA local in Alabama, James Lackey, was sentenced to a year and a day in prison, after Lackey pled guilty to embezzlement and bank fraud. Lackey was charged with embezzling nearly $70,000 from the organization, which represents AT&T workers in Oxford, Ala. He was also ordered to make restitution of $69,193. A Michigan federal grand jury indicted a former Fiat Chrysler Automobiles US LLC executive, Alphons Iacobelli, for conspiring to violate the Labor Management Relations Act (LMRA) by participating in a scheme to provide a UAW vice president and his wife with $1.2 million in cash and gifts. During the time of the payoffs, the conspirators were primarily responsible for negotiating and administering the collective bargaining agreements between the company and the union. Miscellaneous The IBT petitioned the Treasury Department to deny New York State Teamsters Conference Pension and Retirement Fund’s rescue application, which seeks to cut the benefits of its members to avoid insolvency. The IBT claims the plan cannot seek to maintain solvency by cutting benefits or increasing contributions. McKesson Corp. announced that investors rejected the company’s executive compensation plan after a public vote-no campaign by the Teamsters. The Teamsters accused the company of aggravating the drug epidemic. In November, the teamsters sent a letter to the board, demanding an overhaul of McKesson’s inventive awards for senior executives and end its practice of tying incentive pay to the sale of controlled substances. Recent Publications August 3, 2017 San Francisco Enacts Ordinance Banning Pay History Inquiries View July 28, 2017 2017 Proxy Season: Say-on-Pay Frequency Post-Mortem View July 5, 2017 San Francisco Approves New Protections for Nursing Mothers in the Workplace View Winston & Strawn Contacts If you have questions about items that appeared in this bulletin, or would like to learn more about any of these topics, please contact William Miossi at (202) 282-5708 or (312) 558-6109, or one of the other Labor & Employment Department attorneys listed here: © 2017 Winston & Strawn LLP
