Union Thugs Face Combined 170 Years in Prison for Strong-Arming Non-Union Contractors Into Hiring Union Labor

Philadelphia Ironworker business agent Francis O’Donnell and union member William Gillin pled guilty to multiple counts of setting fires, assault, sabotage, and extortion in an effort to force non-union construction contractors to hire union labor. The men were ringleaders for a group of union members called the “Shadow Gang” that would illegally enter and cause havoc to non-union construction sites at night when a contractor refused to hire union labor. O’Donnell faces 60 years in prison and a $750,000 fine while Gillin faces a whopping 110 years in prison and a $1.5 million fine. Sentencing is scheduled for January 2015. I don’t imagine they will have a very merry Christmas.

NLRB Forces CNN to Rehire and Pay Back Wages to 100 Union Workers Who were Terminated 10 Years Ago

In 2003, CNN terminated its relationship with its unionized subcontractor Team Video Services, LLC (TVS). TVS  provided CNN with camera crews and other technicians. CNN then created new, non-union positions to replace the TVS workers and hired about 2/3 of TVS’s employees for those positions. The NLRB did not believe CNN’s argument that it terminated TVS’s contract to create a nimble staff suited to new digital technology, mostly because TVS had worked through technological changes before and CNN praised TVS’s workers when it announced the reorganization.

Of great importance is that the NLRB also ruled CNN and TVS were joint employers because CNN had the right to require changes in TVS staffing levels and imposed limits on whom TVS could hire. It also found that CNN producers had often directed cameramen without checking with TVS. According to the Board, “logic would dictate finding of joint-employer status in circumstances where a contactor deems its operations so essential that they cannot be entrusted to the supervisory oversight of its subcontractor’s officials.”

Do as I Say, Not as I Do: Big Labor Backers to “Schedules That Work Act” Seeking to End Irregular Work Shifts Ironically Require Their Workers to Work Irregular Hours

A new bill titled the “Schedules that Work Act” is sponsored by Rep. George Miller, D-Calif. and backed by a variety of Big Labor organizations such as the AFL-CIO and the United Food and Commercial Workers, as well as liberal activist groups Demos, Restaurant Opportunities Center United, and the Retail Action Project. This bill is designed to give employees more rights to demand flexible work schedules and put an end to irregular work shifts. This bill, if it becomes law, will have a dramatic and horrific effect on many industries.

Laughingly, though, if you are applying for a job as lead organizer at the Retail Action Project, you must have a “willingness to work long, irregular evening or weekends as needed.” Similarly, if you’re trying to become an AFL-CIO senior field representative, you must be willing “to work long hours and weekends as required” and have the “ability to travel on a regular basis as needed, and for extended periods of time.” The national campaign co-director for the Center for Popular Democracy, an activist group affiliated with the AFL-CIO requires “an ability to work flexible hours.” Even the worker center ROC says, “Organizers are required to work long and irregular hours including work on weekends and on holidays as necessary. The work of an organizer necessitates flexibility as demands and priorities for a particular campaign or the overall organization shifts.” Hat tip to Labor Relations Institute.

Union, Company, and ALJ Agree Steward’s Document Requests were Frivolous, NLRB Disagrees Setting New Legal Standard for Section 7 Activity

Steward Kaanta, a member of UAW Local 828 but not a member of the union’s bargaining committee, requested the Company provide him information about financial relationships between it and members of the union “for the purpose of future bargaining.” He then requested various employee payroll records. After these requests, the Company consulted with the Union and both sides agreed that Kaanta’s requests were irrelevant and frivolous. The Company sent Kaanta a letter indicating that his requests were outside the scope of his authority and that any similar requests in the future would “result in further discipline up to and including discharge.”

Kaanta filed an unfair labor practice charge and the General Counsel issued a Complaint accusing the Company of improperly threatening employees with discipline for engaging in union and protected concerted activities. Administrative Law Judge Locke determined the Company’s letter did not violate the NLRA because the union had not authorized Kaanta’s information requests, the requests did not constitute union activity, and the requests were not made on behalf of other employees.

On appeal, the NLRB reversed Judge Locke. The Board said it was irrelevant whether Kaanta’s requests were protected activity since its ruling was based on Kaanta’s understanding of how the warning might relate to future activity. Specifically, the Board held “future requests for such information could well be protected [and] contrary to our dissenting colleague, we therefore find that Kaanta would reasonably conclude from the language of the warning that such a request, though protected, could trigger the warning’s threat of discipline or discharge.”

The dissenting colleague, former management-side lawyer Miscimarra noticed Kaanta was disciplined for his continued frivolous requests for information and that the record was devoid of evidence that the [Company] ever warned Kaanta that requesting information to investigate a potential grievance could result in discipline or discharge. Nonetheless, it appears the NLRB created a new standard that prohibits disciplining (or threatening to discipline) employees for current unprotected activity if it is possible that different activity in the future could be protected.

NLRB General Counsel and Company Seek Detailed Financial Accounting in Beck Disclosure, NLRB Members Say No

Kroger employee Laura Sands, pursuant to CWA v. Beck, notified her union, UFCW Local 700 in Indiana, that she objected to paying the full equivalent of member dues and fees. The union said her financial obligation would be reduced by about 14%. Sands did not challenge the reduction; rather, she filed an unfair labor practice charge alleging that she was entitled to additional, specific information regarding how union dues are spent at an earlier stage in the Beck objector process.

Beck objectors are employees who are members of a union but opt to only pay union dues covering collective bargaining and contract administration, not political activity or for lobbying efforts. Unions must inform employees before they collect money from them under a union security clause that they have the right to pay this reduced dues rate. Workers also have the right to receive information sufficient to make an intelligent decision on whether and how to object. Further, employees must be apprised of the percentage of their dues reduction, the basis for that determination, and their right to challenge those figures.

In a surprise move, the NLRB General Counsel sided with Kroger, a Kroger employee Beck objector, and the two management-side Board Members in urging the pro-union Board majority to require unions to inform workers of the specific details of the potentially reduced fees and dues if they were to become objectors in the initial Beck notice. The pro-union Board majority was not persuaded. Specifically, the Board majority held that the D.C. Circuit Court erred when it concluded that unions must provide specific reduced payment information when initially notifying employees of their obligations under a union security clause. Further, the Board rebuffed having unions provide additional payment information earlier because of the “risks of saddling unions with administrative and financial burdens that many unions might find impossible or impractical to meet” – now isn’t that the pot calling the kettle black?

Do Collective Bargaining Agreements that are Silent on the Issue Guarantee Lifetime Healthcare Benefits to Retirees?

M&G Polymers USA has operated a chemical plant in West Virginia since 2000. In 2006, the Company informed its retirees that they would have to contribute to their health care costs. Displeased with this, the retirees and their union, the Steelworkers, filed a class action against M&G. On appeal, the Sixth Circuit relied heavily on the 1983 Yard-Man decision when ruling that retirement benefits obtained through a collective bargaining pact are presumed to vest, and the retirees are entitled to free health care for life.

The case is now before the U.S. Supreme Court. M&G has urged the Court to find that one of the following three options governs retiree healthcare:

  1. Courts should presume that silence in a CBA about duration of retiree health benefits meant the parties intended them to continue indefinitely;
  2. CBAs should require an explicit statement on the issue; or
  3. Labor contracts need at least some language supporting indefinite heath care benefits for that to be the case as various appellate courts have previously held.

The retirees argue there is a fourth option: whether a company’s obligation to provide health care benefits to retirees extends beyond the termination of a collective bargaining agreement should be guided by traditional contract interpretation principles, i.e. what was the intent of the parties when they drafted the contract.

The ruling by the Supreme Court is eagerly anticipated by labor contract negotiators like me who welcome the Court’s guidance. The ruling will provide direction in what language must be included in collective bargaining agreements to provide companies with the flexibility to modify retiree health care in the future. Inserting the specific language is achievable when negotiating first contracts. However, for companies that do not have the magic language in their collective bargaining agreements regarding retiree health care, the Court’s decision could have significant financial and logistical implications.

Federal Mediation Conciliation Service Has Heavy Pro-Union Slant

The Federal Mediation Conciliation Service (FMCS) is a federal government agency that, in theory, helps companies and unions find peaceful and economical resolutions to labor disputes. The relationship between a company and the union that represents its employees can be acrimonious, which can result in work stoppages, violence, sabotage, and severe disruption to the company, employees, their families, and the community. So, in theory, having a neutral place to turn to fairly mediate or resolve labor disputes before they become irreparable is good. Unfortunately, I’m afraid FMCS has lost its neutrality.

President Obama announced his intent to nominate Allison Beck to be the new director of FMCS. I first met Ms. Beck when she was general counsel for the International Association of Machinists, a position she held for over 20 years. She was Associate GC for IAM for 10 years before that. She replaces George Cohen, a Steelworker, who resigned amid a government investigation into whether FMCS spent hundreds of thousands of dollars on luxuries and retaliated against employees who questioned the spending. I find it difficult to believe an agency headed by life-long union executives can be neutral.

IAM Causes More Drama for Boeing in North Charleston, South Carolina

About 5 years ago, Boeing, tired of having to deal with the Machinists union either threatening to, or repeatedly going on strike in Washington State, relocated its headquarters to Chicago and started producing part of its airplanes in anti-union South Carolina. As expected, IAM objected to Boeing’s decision and sought to enjoin it from relocating part of its operations to the other side of the country. During this time, the union repeatedly bad-mouthed the South Carolinian workers.

Fast forward to today, and the Machinists union is intensifying its campaign to organize the 3,000 permanent employees at Boeing’s airplane manufacturing campus in North Charleston, South Carolina. In a recent interview, a Boeing spokeswoman quipped how she would like to “remind people that this union – the IAM – is the same union that wanted to shut down 787 final assembly and delivery in South Carolina by filing an NLRB lawsuit against Boeing in March 2010.”

Let me get this straight – the union that was decertified in 2009, that spoke ill of the workforce, that sought to put the employees out of a job by prohibiting them from working on Boeing’s planes, is now trying to convince the same workers they should pay the union monthly dues and that the union suddenly now has the employees’ best interest in mind. If they believe that, they’ll also buy swampland in Florida.

Employee Wrongly Terminated for Discussing Discipline with Co-Worker

An employee of a Memphis, Tennessee distribution center for Philips Electronics received a written warning at the conclusion of an investigation into a sexual harassment complaint made against him by a co-worker. A note was then placed in his personnel file indicating he was “aware that disciplinary action forms are confidential and should not be shared on the warehouse floor at any time.” The employee was summarily discharged after showing co-workers on the floor the written warning.

This type of note is a smoking gun against a company, since under NLRB precedent, “an employer violates Section 8(a)(1) when it prohibits employees from speaking with coworkers about discipline and other terms and conditions of employment absent a legitimate and substantial business justification for the prohibition.” Yet, Philips Electronics convinced the Administrative Law Judge that the dismissal was lawful by arguing that it did not have a written rule against such discussions nor was it the Company’s policy to prohibit them. 

However, the documentation convinced the NLRB that the company maintained an illegal rule against employees discussing disciplinary actions. Specifically, the Board held, “We find that [Philips] maintained an unwritten rule that discipline was confidential and prohibiting employees from discussing discipline on the warehouse floor at any time.” Employers take note – whether your policy is written or unwritten, whether it is company-wide or limited to a single manager, whether it pertains to sexual harassment or any other form of discipline, employees are, with narrow, rare exception, permitted to discuss their discipline and show co-workers their disciplinary write-ups.