Labor Relations Today : Labor & Employment Lawyers & Attorneys : Contract Administration, Collective Bargaining

On Friday, August 20, 2010, a District Court Judge for the Eastern District of California issued a preliminary injunction pursuant to Section 10(j) of the National Labor Relations Act. The order, in Garcia v. Sacramento Coca-Cola Bottling Co., 2:10-cv-2176 (Damrell, U.S.D.J.), requires the employer to recognize and bargain with Teamsters Local 150 pending the outcome of refusal to bargain charges filed at Region 20 of the NLRB.

The employer is a soft drink distribution franchisee. For over forty years, the production and maintenance employees were represented by an “in-house” union, the SCCBE. The employer and SCCBE were parties to a collective-bargaining agreement in effect from November 1, 2009 through October 31, 2013.   During early 2010, new officers of the union helped facilitate an affiliation with Local 150, which was apparently approved at a union meeting.

Subsequently, a significant number of employees protested the affiliation – including by signing a “disaffiliation petition” presented to the employer. The employer refused to recognize Local 150 and refused to hear grievances filed by Local 150. Accordingly, the union filed unfair labor practice charges alleging violations of Section 8(a)(1) & (5) of the Act. The Region issued a Complaint against the employer on or about June 20, 2010, and proceeded to file a petition in the District Court seeking injunctive relief under Section 10(j) of the Act.

To obtain interim injunctive relief under Section 10(j), the Board must demonstrate that it is likely to succeed on the merits, that irreparable harm is likely in the absence of preliminary relief, that the balance of equities tips in favor of such relief, and that an injunction is in the public interest. The Court’s decision to issue an injunction here applies this standard to the specific facts of the case before it – a mid-contract refusal to recognize a new union following an affiliation vote. But it restates a broad view of “irreparable harm” that future Courts might find equally applicable in “first contract” or organizing cases. Section 4 of the proposed but stalled Employee Free Choice Act (S. 560, H.R. 1409) would require Regional Offices to pursue injunctive relief in all organizing and “first contract” cases.   Likewise, without being prompted by legislative action, in 2006 and 2007, former General Counsel Ronald Meisburg issued memoranda to all Regional Offices urging them to consider pursuing 10(j) relief in more “first contract” cases. One might certainly expect that the current Board may be even more aggressive about doing so.

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On August 19, 2010, the National Mediation Board (NMB) posted on its website the updated sections of its Representation Manual reflecting the rules changes implemented in July of this year.  In May 2010, the NMB announced that it was changing a decades-old rule regarding the way votes are counted in RLA union representation elections.  The new standard, the "majority of votes cast" standard, is essentially the standard applied by the National Labor Relations Board in elections under the NLRA -- a union is declared the representative of a unit of employees if a majority of the employees who cast valid ballots vote for union representation.  In June, a federal judge granted judgment for NMB in a suit challenging the new rules, allowing the Board to proceed with implementation. 

Interestingly, the memorandum sent by the Board to all carriers and labor organizations announcing these developments also notes:

This Notice will be the last mailed (via snail mail) to participants from the Office of Legal Affairs.  All subsequent mailings will be sent to our participants via email.  If you have not already done so, please provide your email address to Legal@nmb.gov so you will receive future correspondence from the Office of Legal Affairs.

 

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Today's Washington Post reports:

Republicans and anti-union groups are demanding that a new member of the National Labor Relations Board recuse himself from cases involving chapters of the union he used to work for, a continuation of the fight that surrounded his nomination.

The National Right to Work Foundation sent a letter to Attorney General Eric H. Holder Jr. last week, requesting an investigation into Craig Becker's decision to hear cases involving local chapters of the Service Employees International Union. Becker worked as an associate general counsel for the 1.8 million-member union and the AFL-CIO before his appointment by President Obama in March.

Soon after Member Becker began hearing cases following his recess appointment, Respondents began moving for his recusal from cases involving the SEIU, AFL-CIO or their affilliates.  In connection with the Board's decision in Service Employees Local 121RN (Pomona Valley Hospital Medical Center), Case No. 21-CB-14428 (June 8, 2010), Member Becker issued a decision on all such motions.  He stated therein that he would recuse himself from any cases in which the SEIU or the AFL-CIO was a party, but not from cases involving a subordinate chapter or local.  He indicated that the SEIU international union is a "separate and distinct legal entity" by whom he was employed.

According to the WaPo report, Rep. Darrell Issa (R-CA) is not satisfied with that position:

"There's clear reason to question Becker's impartiality," said Issa spokesman Frederick Hill. "His former employer, SEIU International, tightly controls its local chapters. With such gaping loopholes, the Obama administration's ethics pledge Becker signed isn't worth the paper it was printed on."

Issa requested an investigation by the labor board's inspector general, who responded by affirming Becker's interpretation. A Justice Department spokesman said there is no response yet to last week's letter.

Member Becker remains the only one of the current Board Members whose appointment has not been confirmed by the Senate.

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The Wall Street Journal (subscription) ran a piece this weekend highlighting again the dire state of multi-employer pension plans in the U.S.  THe WSJ criticizes the Create Jobs & Save Benefits Act of 2010 (S. 3157), introduced by Senator Bob Casey (D-PA) back in March:

Congress is gone for August—heaven be praised—but that hasn’t stopped unions from quietly mobilizing to push through a big new priority this fall: a pension bailout. Big Labor is going Code Red on the issue, in the face of a looming accounting change that would force companies to confront the Ponzi-style nature of multi-employer pension plans.

We wrote in June about this class of some 1,500 union-run retirement vehicles, in which companies across an entire industry pay into a single pension pool. Hundreds of these multi-employer pools are badly underfunded, thanks to years of labor funneling money into new pay and benefits, rather than into the funds for retirees.

The big problem with these plans is that when one company in the pool goes out of business, the other companies remain on the hook for the cost of the plan. These spiraling liabilities inspired Pennsylvania Senator and Big Labor favorite Bob Casey to introduce legislation to cordon off “orphaned” pensions—those for which an employer has stopped contributing or withdrawn from the plan—and drop them on the federal Pension Benefit Guaranty Corporation.

The PBGC is already significantly underfunded and taxpayers are its ultimate backstop. Yet the Casey bailout could dump as much as $165 billion in new liabilities on the PBGC, while multi-employer plans would get a clean bill of health. What a deal…

In a press release, Senator Casey blamed the pension crisis on the current recession, and on employers who ceased making contibutions and closed as a result.  While the current environment certainly has not made matters any better, the serious underfunding of multi-employer pension plans pre-dates the present state of the economy.  In the summer of 2008, Hudson Institute fellow DIana Furchtgott-Roth highlighted this serious problem in a research paper entitled "Union vs. Private Pension Plans: How Secure Are Union Members' Retirements?"  She studied and reported alarming rates of underfunding as of 2005.

There were critics of the Employee Free Choice Act who believed that bill was motivated primarily by the potential benefits to underfunded pension fund brought about increased union density.  In any event, whether by such indirect or more direct legislative or regulatory action, it appears that addressing the state of multi-employer pension plans will become a hotter topic in the very near future.

More commentary:

• "Building a Secure Future for Multi-Employer Pension Plans" -- Senate HELP Committee Hearing (video and printed testimony available)
• "Why Democrats are Pushing the $165 Billion Union Pension Bailout Bill" -- Competitive Enterprise Institute
• Miller & Long VP Brett McMahon on Fox Business News -- via Halt The Assault's YouTube channel
• "Pension Bill Stalled in Senate" -- Teamsters for a Democratic Union

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The Laborers' International Union of North America (LIUNA) has announced that it will re-affiliate with the AFL-CIO, the nation's largest labor coalition, four years after it left to form the Change To Win coalition with the SEIU, Teamsters, UFCW and other unions.

The Hill's Blog Briefing Room reports:

LIUNA's press release noted that when it left the AFL-CIO in 2006, "the union expressed hope for an eventual reunification, continued to organize much of its political efforts through the AFL-CIO and has been engaged in ongoing discussions with the federation for some time."
 

[General President Terry] O'Sullivan praised LIUNA's partnership with Change to Win over the past several years.

“The LIUNA of today is different from the one that left the AFL-CIO, and that’s in large part due to the strength of Change to Win’s Strategic Organizing Center,” he said. “Neither our ongoing organizing efforts in weatherization and residential construction — the biggest campaigns we have ever launched — would have been launched without Change to Win.”

More commentary:

• "Another Union Rejoins AFL-CIO" -- The Atlantic
• "The Laborers' Return" -- Politico
• "Laborers Returning ti AFL-CIO" -- AFL-CIO Now Blog

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President Obama spoke on Wednesday to the AFL-CIO’s executive council in Washington D.C. While organized labor has expressed frustration at times by the White House’s seeming inability to advance its major labor agenda initiatives, the President highlighted the things his administration has achieved.

According to The Hill:

The president said his administration is enforcing labor provisions in trade agreements and looking to grow the economy by promoting the renewable energy industry.

“At the heart of it is going to be three powerful words: Made in America,” Obama said. “There are no better workers than U.S. workers. There are no better workers than your members.”

Obama vowed to keep fighting for the Employee Free Choice Act (EFCA), so-called “card-check” legislation that would make union organizing much easier.

“Getting EFCA through the Senate will be tough. It’s always been tough; it’ll continue to be tough. But we’ll keep on pushing,” Obama said.

But Obama also said EFCA is not the only means available for promoting unions. He noted his administration’s work in appointing labor-friendly officials to the National Mediation Board and the National Labor Relations Board, agencies that have oversight of union elections and labor law violations.

AFL-CIO President Richard Trumka said Obama “did a great job” with the speech.

Regarding EFCA in particular, Trumka said he and the White House are working on a way to move forward on EFCA, though he would not disclose any details:

“We are working on a way to pass it, and they are active participants in that,” Trumka said.

Trumka said labor realizes Democrats need their help in the upcoming elections and predicted the threat of Republican gains will spur union members into action.

Progressive online organizer Michael Whitney has a slightly different view over at FireDogLake.

More commentary:

• Full Transcript of President's Remarks via Federal News Service
• "Obama pledges labor support" -- Politico
• "If EFCA Won't Pass the Senate, We'll Turn to Federal Labor Boards" -- ShopFloor.org

 

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On Thursday, May 5, the National Labor Relations Board issued its first four decisions in cases returned to it by Courts of Appeal following the Supreme Court's New Process Steel decision.  That decision held that the Board was not authorized to decide these cases when it had only two members.  Between December 2007 and March 2010, only current Chairwoman Wilma Liebman and Member Peter Schaumber were serving on the Board, issuing some 600 decisions.

The Board announced:

The four decisions issued today were in cases that had been pending in federal appeals courts at the time of the Supreme Court decision, and were returned to the Board. The cases are: SPE Utility Contractors, LLC, 7-CA-50767 (unlawful discharge); Chrysler, LLC, 7-CA-51553 (refusal to provide information); ADF, Inc., 1-CA-45068 (repudiation of collective bargaining agreement and withdrawal of recognition); and Regal Health and Rehabilitation Center, 13-CA-44481, et al. (unlawful conduct during organizing campaign, with bargaining order granted). The Board is now at full strength with five members. As described in an earlier press release, each case returned to the Board will be considered by a three-member panel which will include Chairman Liebman and Board Member Schaumber. Consistent with Board practice, the two other Board members not on the panel will have the opportunity to participate in the case if they so desire.

The Board has also posted a database of all contested cases that were decided by the two-member Board.  The database is available via the NLRB's website and includes links to relevant documents and case status updates.

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Earlier this week, the National Labor Relations Act celebrated its 75th anniversary.  Secretary of Labor Hilda Solis marked the occasion by calling for an expansion of collective bargaining in the Huffington Post:

Collective bargaining helped create our middle class. Working people were able to share in the gains of their productivity and labor and management together forged creative solutions to create the powerful engine of the American economy we all are proud of.

In order to rebuild the middle class today, we need to level the playing field for all working people and update our labor laws to fit the 21st century workplace. That's why the President and I support the Employee Free Choice Act - which would update the NLRA so workers can form unions if they choose to without fear or pressure. In addition, millions of workers are not covered by the NLRA including public sector workers, farm workers, domestic workers, and more - so other laws, like the Public Safety Cooperation Act would ensure that firefighters and other public servants have a voice on the job, too.

Some people say that given the state of the economy, we can't afford unions right now. They've got it backwards.

 

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Now that the National Labor Relations Board is at full strength for the first time in two-and-a-half years, earlier today, the Board issued some guidance regarding how it intends to handle cases remanded in light of the Supreme Court’s New Process Steel decision.  Between December 2007 and March 2010, the Board's only two Members -- current Chairman Wilma Liebman and Member Peter Schaumber -- continued to issue decisions on behalf of the Board.  They decided nearly 600 cases on which they could agree, while holding aside all others for future Board action.

On June 17, 2010, the Supreme Court ruled that the two Members lacked the authority to act on behalf of the Board, effectively rendering all of those Orders invalid.  According to the Board's statement today: 

At the time of the June 17 Supreme Court decision, 96 of the two-member decisions were pending on appeal before the federal courts – six at the Supreme Court and 90 in various Courts of Appeals. The Board is seeking to have each of these cases remanded to the Board for further consideration.

Each of the remanded cases will be considered by a three-member panel of the Board which will include Chairman Liebman and Board Member Schaumber. Consistent with Board practice, the two other Board members not on the panel will have the opportunity to participate in the case if they so desire.

It is unclear at this time how many of the two-member Board rulings not already challenged in the federal appellate courts can or will be contested and how many may now be moot.

Additional commentary:

• "The NLRB's Plan in Wake of New Process Steel" -- Workplace Prof Blog
• "Second Circuit denies NLRB petition in light of New Process Steel" -- Justin F. Keith, Greenberg Traurig (via Lexology)

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