• The NLRB certified the SEIU-UHW as the bargaining agent for approximately 400 medical social workers at 37 Kaiser Permanente facilities in Northern California, after overruling objections to a 2010 election filed by the National Union of Healthcare Workers. In so holding, the Board overturned a recommendation by an administrative law judge (“ALJ”) that a new election be held. The Board disagreed with the ALJ’s finding that SEIU-UHW unlawfully interfered with the election by warning that Kaiser probably would repeat conduct it unlawfully committed in an earlier Southern California election where employees voted to switch union representation from SEIU-UHW to NUHW. The ALJ had found that SEIU-UHW’s consistent warnings created voter fear and recommended a new election because of the small margin of victory – 148 ballots for incumbent SEIU-UHW, 129 for NUHW, and two ballots for no union. The Board held that warnings did not constitute objectionable threats because, even assuming the statements were more than predictions based on past conduct, the union did not have the ability to carry out such threats. Permanente Med. Grp.
  • A NLRB ALJ found that Castlewood Country Club in Pleasanton, California unlawfully maintained a lockout of about 60 employees for more than two years in support of a bad-faith bargaining position. The ALJ recommended that the Board order the country club reinstate the workers, pay two years of back wages and benefits, and reinstate a tentative agreement that had been reached regarding most issues. The ALJ found that a legal economic lockout became an unlawful lockout in August 2012, when the country club stopped trying to bargain in good faith with a UNITE HERE local. The ALJ determined that the country club changed its bargaining posture, backtracked on tentatively agreed upon issues, and slowed bargaining after receiving feedback from members disapproving of the union and locked-out employees. Prior to the lockout, the parties had reached tentative agreement on many issues, but could not agree on health coverage. After UNITE HERE was certified as the continuing bargaining agent following a decertification election, the country club conducted an internal review of the situation, including getting feedback from its members, and switched its labor law firm. When the new law firm took over bargaining in August 2010, the country club submitted “revised final employer proposals,” including changes to language that had been tentatively agreed upon. The country club also declined to meet more frequently after the union complained about only meeting for five hours in a six month period. Castlewood Country Club.
  • A divided three-member NLRB ruled that Dresser-Rand Co. engaged in an illegal lockout against International Union of Electrical Workers-CWA represented workers at its facility in Painted Post, New York after those workers engaged in a more than three-month-long economic strike. Adopting an ALJ’s determination, the Board majority held that when the company ended the week-long lockout, it engaged in a discriminatory preferential recall of workers that crossed the picket lines and those it had hired as permanent replacements, as well as failing to bargain over the recall procedure. The Board ordered the company to make employees whole for any loss of pay or benefits caused by the company’s unfair labor practices, including back pay. The Board ordered that the relief be paid from the date the union’s local made an offer to end the strike, which was several days before the company announced the lockout. Dresser-Rand Co.
  • The U.S. District Court for the Southern District of Ohio held that a reasonable person would conclude an arbitrator in a labor dispute was partial because he had six first cousins employed in the bargaining unit covered by the collective bargaining agreement. The decision vacated the arbitrator’s ruling that P.H. Glatfelter’s unilateral subcontracting of wood chip production violated its labor agreement with workers represented by the United Steelworkers. The arbitrator did not disclose the familiar relationships, including two cousins with a direct stake in the grievance. The relationship was reported to the company by another unit worker after the arbitrator issued the award for the union. The court held that the company demonstrated “evident partiality,” vacated the award and ordered new arbitration. P.H. Glatfelter Co. v. United Steelworkers.
  • The California Public Employment Relations Board issued a complaint against a Service Employees International Union (“SEIU”) local, alleging interference with employees’ right to free choice during a 2009 representation election for some 10,000 Fresno County home health care providers. In that decertification election conducted by mail ballot, incumbent SEIU-United Healthcare Workers (“UHW”) West staved off a challenge from the National Union of Healthcare Workers by less than 250 votes. The complaint alleges that the SEIU-UHW used intimidation, illegal threats, and other interference tactics during the election campaign. The charge, originally filed by UHW in June 2009, was dismissed by a PERB Regional Attorney in February 2011 because it did not identify who from SEIU-UHW engaged in the alleged improper conduct. However, in an April 2012 decision, the PERB members overturned that determination. An informal conference is scheduled for October 8, 2012 before an administrative judge to try to reach a settlement.
  • The U.S. Court of Appeals for the First Circuit overturned an NLRB decision that an agreement between an IBT local and a highway construction contractor violated the National Labor Relations Act (“NLRA”) by improperly barring the contractor from doing business with specific third-party subcontractors. The court held that the agreement was intended to preserve union jobs at J.H. Lynch & Sons Inc., which is a lawful primary purpose under the NLRA, rather than achieve an unlawful secondary purpose with respect to the specific subcontractors. The court found that particular subcontractors were addressed in the agreement because they were the only subcontractors not paying prevailing rates, which the local contended violated its collective bargaining agreement. Following the same reasoning, the court also held that a strike targeting the subcontractor did not violated the NLRA. NLRB v. Int’l Bhd. of Teamsters Local 251.
  • The U.S. Court of Appeals for the Third Circuit ruled that a UFCW grievance against Giant Eagle Markets Co. regarding access to employees at non-union grocery stores was not eligible for arbitration because it did not involve the terms of the collective bargaining agreement. The Third Circuit, citing a similar decision involving the union and Rite Aid in 2010, said the recognition clause of the agreement did not give the union the right to solicit workers at newly acquired stores. Rejecting the union’s argument that the agreement provided for arbitration of grievances over the “application;” the contract, the court stated, in the recognition clause “does not describe or purport to include anything resembling the union’s claimed right to access newly-acquired stores.”United Food and Commercial Workers Local 23 v. Giant Eagle Mkts. Co.
  • The U.S. Court of Appeals for the Seventh Circuit affirmed an arbitrator’s award limiting an employer’s withdrawal liability based on the plan’s failure to satisfy ERISA Section 4213(b)(1), which directs that withdrawal liability be calculated on an “actuary’s ‘best estimate.’” The arbitrator found that pension plan trustees over-assessed CPC Logistics Inc.’s withdrawal liability by over $1 million when the company withdrew from the Chicago Truck Drivers, Helpers, and Warehouse Workers Union (Independent) Pension Fund in 2005. The actuarial firm used by the plan permitted plan trustees to pick the rate it would apply to withdrawal liability calculations but maintained that one specific rate was its “best estimate.” Prior to 2004, the plan used higher interest rates in order to minimize withdrawal liability estimates in an effort to induce employers to join the plan. The court found that, beginning in 2004, the plan trustees directed the actuarial firm to use a lower interest rate formula in order to get higher exit prices from withdrawing employers. The appeals court held, “the plan’s resolution directing [its actuarial firm] to switch from one method of estimating the interest rate to another and back again, compounded the damage to CPC, and also violated the ‘best estimate’ requirement, which exists to maintain the actuary’s independence.”Pension Fund v. CPC Logistics Inc.
  • The U.S. Court of Appeals for the Eight Circuit upheld a NLRB decision that a Laborers’ International Union of North America (“LIUNA”) district council refusal to enter into a prehire labor agreement with a fencing company that planned to work for a nonunion construction manager was an unlawful secondary boycott. Laborers District Council of Minnesota and North Dakota, acts on behalf of seven LIUNA locals with 11,000 Minnesota members, and is party to a collective bargaining agreement with Associated General Contractors of Minnesota, a multiemployer group. That collective bargaining agreement permits subcontracting to companies that have signed or are otherwise bound by a labor agreement with the union. The court ruled that, although the fencing company, Lake Area Fence, did not have a right to obtain a union contract, the Laborers District Council violated the NLRA because it declined to enter into an agreement in order to apply “compelling economic pressure” on the company to stop doing business with the construction manager that was the primary target. The court stated that “it is the effect on the secondary employer, not the lawfulness of the underlying action, that is the critical inquiry,” and rejected the Laborers distinction between refusing to renew a labor agreement and refusing to enter into an initial contract. Laborers Dist. Council of Minn. & N.D. v. NLRB.
  • The U.S. Court of Appeals for the Tenth Circuit denied a petition to review a NLRB order requiring Public Service Co. of New Mexico, a utility company, to give an IBEW local information about disciplinary actions against non-unionized, non-unit employees. The court ruled that it did not have authority to hear several of the objections argued by the company because it had failed to raise them in its “Spartan administrative submission” to the NLRB. The court rejected other objections from the company because it failed to carry its “heavy burden” of showing the NLRB’s unfair labor practice findings were unreasonable. The unfair labor practice charges stemmed from a grievance filed by the union related to the discharge of a union worker for disconnecting a customer’s gas meter. During that grievance, the company refused to produce information regarding discipline of non-union employees in similar situations, claiming it was irrelevant. Public Serv. Co. of N.M. v. NLRB.
  • The regional director for NLRB Region 21 approved a unilateral settlement agreement in which SEIU and UHW agreed to cease representing the employees at Chapman Medical Center in Orange, Calif. The agreement settled charges filed by an employee of the hospital that alleged the union bargained with the hospital when it did not represent a majority of the employees. The employee alleged that under a neutrality and card check agreement the union and hospital rigged a card count, even though a majority of employees in the bargaining unit signed cards, letters, and petitions against representation by the union. According to the NLRB regional director, a separate settlement agreement was reached between the hospital and one of its employees. However, the employee that filed the charges has not signed off on the settlement agreement with the union and could file an appeal with the NLRB’s acting general counsel. In re SEIU United Healthcare Workers-West (Chapman Med. Ctr.).