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

Noel Canning Brief Urges SCOTUS to Uphold D.C. Circuit Ruling: Ben James of Law360($$) writes that Noel Canning, the soda-bottler at the center of the NLRB recess-appointment controversy, has filed a brief with the United States Supreme Court urging the Court to affirm the D.C. Circuit's January ruling invalidating the President's recess appointments to the National Labor Relations Board. Interestingly, Noel Canning chose not to oppose the writ of certiorari because of the importance of the questions involved in the matter.

Noel Canning, in its brief, argues that the D.C. Circuit's interpretation of the recess-appointment clause is the correct interpretation, noting that no President had ever made an intra-session appointment until about 40 years ago.

“That is likely because this modern practice contravenes the plain text of the clause and conflicts with the long history that predates this practice's conception,” Noel Canning contended. “The D.C. Circuit was thus entirely correct to hold that the president's recess appointment power is limited to 'the recess' that occurs between each Senate session.”

A Board spokesman declined comment for the story. We have been following the recess-appointment controversy from the beginning and will be covering the story every step up the way. Stay tuned.

Hollywood Casino Toledo Workers Vote to Join UAW: Tyrell Linkhorn of the Toledo Blade reports that employees at the Hollywood Casino Toledo in Toledo, Ohio have voted to be represented by the United Auto Workers for the purpose of collective bargaining. The more than 800 newly-represented employees will now look to the UAW to begin negotiations with management over a new collective-bargaining agreement between the parties. While a vote tally was not immediately available, a source with knowledge of the certification said that support was overwhelmingly in favor of unionization.

Springboro Teachers Ready to Strike: Lawrence Budd of WHIOTV.com writes that the Springboro Education Association, representing teachers in Springboro, Ohio, have vowed to authorize a strike if contract negotiations between the SEA and the Springboro school board do not bear fruit soon. In its down display of muscle-flexing, the school board promised to begin searching for replacement teachers immediately in order to cover the absences of striking teachers.

The parties have been fighting for months about proposed cuts by the school board, including to teacher pensions, salaries, and insurance coverage. We will keep you posted as this story develops further.

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Dems Push Board Nominees Through HELP Committee: Law360 ($$) reports that yesterday, the Senate Health, Education, Labor and Pension (HELP) Committee voted to send President Obama's nominations to the National Labor Relations Board to the full Senate for a vote. Interestingly, the vote was incredibly partisan, as Republican nominees Harry Johnson III and Philip Miscimarra sailed through the process, while Democrats Sharon Block and Richard Griffin each received nine "no" votes from Republicans on the Committee.

The Board has been in hot water since January's famous Noel Canning ruling out of the D.C. Circuit found President Obama's recess appointments to be invalid. Senate Democrats, commenting on the committee meetings, noted that the law is still uncertain and the Board should continue to function until the Supreme Court decides the issue.

“We can all have our opinions about this, but there’s a conflict and there’s going to be a decision. What we’re missing in this debate so far is whether this board is going to function,” said Sen. Robert P. Casey Jr., D-Pa. “Unless you believe the board should be shut down, we should all be working toward making sure there is a functioning board.”

UMass Nurses Set to Strike: Priyanka Dayal McCluskey of the Telegram writes that UMass Memorial Medical Center management and representatives for the more than 1,000 nurses at UMass worked through the night last night in an effort to avoid a planned strike by the nurses, set to begin at 6:00AM this morning. The major disagreement between the two sides continues to involve staffing levels.

UMass has taken steps to respond to the potential strike, hiring temporary replacements and rescheduling elective surgeries and other voluntary procedures. We will keep you posted as the negotiations near a conclusion.

Labor Officials Allege ULPs by Maine Manufacturer: Matt Hongoltz-Hetling of the Morning Sentinel reports that labor leaders have accused ALCOM, a Maine-based manufacturer, of illegally firing five workers who began discussions about organizing a union. A spokesman for the AFL-CIO railed against the firings, saying they were clearly in violation of the National Labor Relations Act.

"This is a clear example of an employer firing people for union activity and trying to create a climate of fear in the workplace when workers are trying to organize," [the official] said.

ALCOM, through a spokesman, issued a strong denial, stating that the company supports the right of workers to choose. We will keep you posted as the matter moves through the investigative process.

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Ralphs Pushes Picketing Case Towards Supreme Court Review: Abigail Rubenstein of Law360 ($$) reports that this past Monday, Ralphs Grocery Store filed a brief with the Supreme Court, urging it to take Ralphs' case and overturn a California ruling allowing union picketing at the store's Sacramento branch. The brief argues that the California court's decision violates the constitution's prohibition on content discrimination in speech because the grocery store could have barred union-members from speaking on any other subject on its property other than organizing.

“What is 'radical' is the California Supreme Court’s decision,” the brief said. “If not reviewed, store owners will be forced to host labor-related expression on their private property, even though they can exclude all other expressive activity.”

A union attorney was not available for comment, but had previously expressed his belief that the Court would not accept the case for review. We will certainly keep you posted as this situation develops.

Nurses at UMass Prepared to Strike: WBUR reports that UMass Memorial nurses are expected to strike because contract negotiations between the nurses and hospital management have stalled.

“We are disappointed by management’s refusal to negotiate a settlement to this contract, yet we are committed to standing up for patients and our union rights,” said Margaret McLaughlin, a nurse and co-chairwoman of the University Campus bargaining unit.

Hospital management expressed its disappointment at the nurses' course of action, but also assured the public that temporary workers were standing by in case the nurses follow through on their threats. Apparently, the main sticking points between the two sides continue to be staffing levels, as well as vacation time and pension issues.

Caterpillar and USW Head Back to the Bargaining Table: Fox6Now.com reports that tomorrow, officials representing Caterpillar and the United Steel Workers are expected to sit back down at the bargaining table in a continuing effort to reach a new collective bargaining agreement. In a vote last month, USW employees overwhelmingly rejected Caterpillar's latest offer, which had included wage increases and a new bonus structure. We will certainly keep you posted as negotiations resume.

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Charges Over Facebook Discipline Set to Continue, RDs Say: Ben James of Law360 ($$) writes that yesterday, a panel of National Labor Relations Board (NLRB) Regional Directors and private-sector management-side attorneys discussed current hot topics in labor relations at Cornell's School of Industrial and Labor Relations in Manhattan. In particular, the panel discussed the recent spike in Board charges dealing with issues over Facebook and other forms of social media. The Board's Regional Directors stressed that its recent interest in social-media cases was nothing new, even if a lot of the cases are cropping up in non-union environs.

“We've had jurisdiction since way back when over nonunion workforces,” [a Board Regional Director] said, pointing to the U.S. Supreme Court's 1962 decision in NLRB v. Washington Aluminum Co., which affirmed the labor board's ruling that firing nonunion workers who walked out of a machine shop because it was too cold violated the NLRA.

The panel further discussed the D.C. Circuit's recent Noel Canning ruling, which has thrown the Board's authority to act into doubt. Since the D.C. Circuit held that the Board had been improperly constituted back in January, 368 contested decisions have been issued. Clearly, we will keep you posted as to both the social media issue and the Noel Canning fallout.

HELP Committee Set to Consider Board Nominees: Sam Hananel of Yahoo!News reports that President Obama's nominees to the National Labor Relations Board will appear before a Senate committee confirmation hearing today. If no new nominees are confirmed, the Board will fall below a quorum to act in August, when current Chairman Mark Pearce's appointment expires.

Following today's hearing, the Senate's Health, Education, Labor, and Pensions Committee (HELP) is expected to vote on the nominees next week. The fight is expected to be quite partisan, as Republicans have been railing against what they believe to be an out-of-control Board. We will certainly keep you posted as the situation unfolds.

Nurses at San Jose Hospitals Set to Strike: Sandy Kleffman of the Mercury News reports that several hundred nurses at two San Jose, California hospitals are set to strike at the end of this month. The strike comes in the midst of lengthy contract negotiations between the nurses, represented by the California Nurses Association, and the Hospital Corporation of America. The main sticking points between the parties involve wages, benefits, staffing levels, and pensions. We will keep you posted as the strike deadlines moves closer.

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Fight for $15 Comes to Milwaukee: Josh Eidelson of The Nation reports that, as of 6:00am central time this morning, hundreds of fast food restaurant employees in Milwaukee, Wisconsin are expected to walk off the job. The employees are holding the one-day strike in order to protest substandard wages. The movement, known as the Fight for $15, is exactly what it sounds like: the strikers are attempting to raise their wages to at least $15 an hour, which they consider to be a living wage.

“We know that if we were to raise the wages of those workers, it would mean not only economic security for their families, but economic security for a city that’s been devastated by de-industrialization, devastated by a jobless rate for African-American men of over 55%," commented an affiliate of the campaign.

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Walmart Brings Suit Against Two Unions for 'Disorderly Conduct': The Huffington Post reports that  Walmart has filed suit against the United Food and Commercial Workers (UFCW) and OUR Walmart, alleging that both unions engaged in disorderly conduct by trespassing, confronting store managers, and blocking customer traffic, as well as several other claims.

Interestingly, Walmart workers are not organized for the purpose of collective bargaining or representation. However, OUR Walmart, with the help of the UFCW, has been attempting to organize Walmart's staff for the last several months. We will keep you posted as this story, and this lawsuit, move forward.

Chicago Teachers' Union to Protest School Closures: Tonya Francisco of WGNTV.com writes that the Chicago Teachers' Union (CTU) will stage three days' of protests in order to try to stop the closure of 54 "failing schools." The protests are set to begin Saturday. CTU is also expected to lobby state lawmakers to put the school closures on hold for the time-being. CTU has expressed that its main concern is the safety of the school children, some of whom would be forced to walk through gang-territory to get to their new school should the city go ahead with the closures. We will certainly keep you posted as this story develops further.

Vermont Reaches Agreement with State Troopers' Union Over New Contract: The Rutland Herald reports that the union representing Vermont State Troopers has reached an agreement with officials representing the state of Vermont over a new contract between the parties. While there will not be an across-the-board pay increase, unionized troopers will receive salary increases. The contract must still be ratified by the troopers, but ratification is considered a formality at this point. The current contract between the parties is set to expire June 30 of this year.

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6th Circuit Blesses Michigan's Public Act 53: Sindhu Sundar of Law360 ($$) writes that yesterday, the Sixth Circuit reversed a lower court's granting of a temporary injunction, holding that Public Act 53, a bill out of Michigan that would bar unions from automatically deducting union dues from teachers' paychecks, is not violative of the First Amendment. The court reasoned that unions cannot depend on automatic payroll deductions to finance their brand of speech.

“So Public Act 53 does not restrict speech; it does not discriminate against or even mention viewpoint; and it has nothing to do with a forum of any kind,” the opinion said. “Instead, the Act merely directs one kind of public employer to use its resources for its core mission rather than for the collection of union dues. That is not a First Amendment concern.”

Judge Jane Stranch dissented, writing that the Michigan legislature clearly enacted Public Act 53 in order to check the growing power of labor unions. The matter will now be remanded to the lower court for a trial on the merits. We will certainly keep you posted as the case moves towards a resolution.

"Fight for $15" Hits Detroit Fast-Food Restaurants: Josh Eidelson at The Nation writes that this morning, fast-food workers at more than 60 restaurants in Detroit, MI are expected to walk off the job in protest of substandard wages and working conditions. The action, known colloquially as the "Fight for $15," is a grassroots movement organized primarily by the Service Employees International Union (SEIU) and its stated goal is to raise the minimum wage to $15 per hour. A CUNY labor professor, commenting on the matter, believes that the protest actions will only serve to spur more protests, which could lead to an industry-wide increase in wages.

 “After what I would consider well over three decades of wage suppression, workers in this particular industry - and then I think it’ll go to others - are realizing that their only way up the wage ladder is through their own organizations,” CUNY labor studies lecturer Ed Ott said Wednesday.

So far this morning, a Detroit McDonalds was forced to shut down when over 20 of its workers walked out and joined the "Fight for $15." Interestingly, McDonalds had attempted to bring in strikebreakers, but those strikebreakers also ended up walking out in protest and joining the strikers. This is certainly not the last we've heard from the "Fight for $15" campaign. We will be following it and will keep you posted as it crops back up.

San Francisco Ballpark Concession Workers Call for Strike Authorization Vote: The San Francisco Gate reports that concession workers at AT&T Park in San Francisco, represented by Unite Here!, have called for a strike authorization vote. The vote, set to occur Saturday, was called after workers became increasingly unhappy over the lack of progress in negotiating a new collective-bargaining agreement with management officials. The more than 750 employees classified as concession workers have been without a contract for the past three years.
 

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SEIU Targeting Colleges and Universities: Malika Sen of the College Times writes that the Service Employees Industrial Union (SEIU) is putting forth efforts to unionize adjunct professors across the country. Their current focus, however, seems to be on the Boston metro area. On April 13, Adjunct Action, an initiative of the SEIU, held a symposium on the benefits of unionizing that was attended by over 100 adjunct faculty from more than 20 schools in the area.

“The next step is forming organizing committees both on the campuses where adjunct faculty are most interested in moving forward and also across the metropolitan area,” [an SEIU spokesperson] said.

Interestingly, the SEIU has succeeded in bringing a unionization effort to a vote at Georgetown University. Ballots were mailed out to adjunct professors on April 12, with the National Labor Relations Board expected to tally the votes on May 3, 2013. We will certainly keep you posted as to the election's result.

Sanipac, Union Reach Agreement on New Contract: Jeff Wright of the Register-Guard reports that a majority of union-represented workers at Sanipac in Oregon have agreed to a new contract with the company, averting a possible strike. The contract lasts for four years and is retroactive to July 1 of last year. Sanipac had been preparing for the worst because Teamsters representatives had been intimating that a strike was being considered.

Both sides expressed relief that the negotiations ended successfully. Workers will receive a $2.00 raise over the life of the contract and will also receive increases in medical and pension benefits. Most importantly, there will not be an interruption in trash-hauling services for residents served by Sanipac.

Strongsville School Board Files ULP Charges Against Teachers: Cory Shaffer of the Cleveland Plain Dealer reports that the Strongsville, Ohio school board has accused the Strongsville Education Association (SEA), the union representing teachers in the long-running strike, of direct dealing in contravention of the Ohio Labor Code.

In the release school board President David Frazee said the charges go on to ask the State Employment Relations Board to order the SEA to cease and desist "from engaging in unlawful direct dealing and from interfering with the BOE’s selection of bargaining representatives."

A union spokesperson did not respond to a request for comment. The strike, now in its eighth week, shows no signs of abating anytime soon. Both sides have dug in their heels and have each filed multiple unfair labor practice charges against each other. We will certainly keep you updated as this situation is very fluid.
 

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7th Circuit Chides Red Cross for Trying to Bust Union: Sindhu Sundar of Law360 ($$) writes that yesterday, the Seventh Circuit Court of Appeals found that the American Red Cross unlawfully changed employees' terms of employment. The changes in conditions were designed to harm the legitimacy of the newly-formed union, with the court further ruling that the Red Cross' changes actually did harm the union.

A three-judge panel partly affirmed a lower court's ruling in favor of a union of blood collection specialists that was elected in 2007 and certified in 2010, after the humanitarian group made a number of changes to the union employees’ employment terms without consulting the union, the order said. These changes included changing employees’ health insurance benefits, suspending their merit pay increases, and halting matching employer contributions to their 401(k) plans, among other things, according to the order.

The Red Cross' changes to employees' terms and conditions of employment led to a massive drop in union engagement, the court further found, with attendance at union meetings dropping almost 90% in a one-year period. Neither side was available to comment on the ruling.

"Fight for $15" Campaign to Hold Protest in Chicago: The Chicago Tribune reports that hundreds of fast food and retail workers throughout the city of Chicago are expected to walk off the job today in support of a campaign calling for higher wages for low-income workers. Known as the "Fight for $15" campaign, organizers stated that workers from McDonalds, Macy's, and Subway were expected to join in the protests.

"Fight for 15, seeks to put money back in the pockets of the 275,000 men and women who work hard in the city’s fast food and retail outlets, but still can’t afford basic necessities," the group said in a release. "If workers were paid more, they’d spend more, helping to get Chicago’s economy moving again."

The Fight for $15 organizers, not surprisingly, are also putting forth concerted efforts towards unionizing the city's retail and fast food workers. Interestingly, Chicago's strike comes mere weeks after a similar strike in New York City. We will certainly keep you posted as this story develops further.

Seattle Negotiations with Police Union Hits Roadblock: Steve Militch and Lynn Thompson of The Seattle Times report that negotiations between the city of Seattle and its police union have stalled because the city no longer wants to pay the salary and benefits of the police union's President. No other union head in Seattle is paid by the city, save for current Seattle Police Officers Guild' (SPOG)President Sergeant Rich O'Neil, who is making $125,000 per year, plus benefits. The city, in a statement, declined to comment on the pay issue.

“We have been diligently working to negotiate a contract with the Seattle Police Officers’ Guild that respects our budget situation and enables full implementation of our Settlement Agreement with the DOJ,” [a city spokesman provided] in a written statement.

The police officers have been working without a contract since 2010. Interestingly, the police officers are barred from striking, so their negotiating leverage is somewhat hindered. We will keep you updated as negotiations progress.
 

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Aztar Workers Keep Security Clause: Susan Orr of the Evansville Courier Press writes that employees at Casino Aztar in Evansville, Indiana have voted to retain the Union security clause in their collective bargaining agreement with their employer. Deleting the union security clause would have allowed reticent workers to continue to be represented by the union in collective bargaining, but without having to pay union dues.

The election's outcome means that Aztar employees will continue to be represented by the United Auto Workers, whether they like it or not, until the end of the current contract between the parties. The vote is expected to be certified by the National Labor Relations Board by the end of the month.

Garbage Haulers Support Strike Ends: Olivera Perkins of the Cleveland Plain Dealer reports that garbage haulers working for Republic Services in Northeast Ohio have called off their current support strike, which had been going on for all of last week. The haulers were refusing to collect refuse, purportedly because they were acting in solidarity with their striking brethren in Youngstown, OH. The strike affected thousands of homes throughout the Northeast part of the state, with replacement workers unable to cover the striking workers' routes.

"Out of respect for their communities and the customers they serve, our members chose to suspend the strike," Ken Hall, the union's international General Secretary-Treasurer, said in a news release. "I hope their act of good faith is matched by Republic's good faith at the bargaining table."

The company and the Teamsters have been at odds for some time now, with both sides filing unfair labor practices against each other with the Board. The major sticking point in contract negotiations continues to be whether or not the company will keep its employees on a pension plan. We will certainly keep you posted, as there well may be more support strikes before contract negotiations are concluded.

UC Employees Set to Vote on Whether to Walk Off the Job: Mia Shaw of the Daily Californian writes that workers at the University of California are set to vote at the end of the month on whether to authorize a workers' strike. The employees, represented by the American Federation of State, County and Municipal Employees (AFSCME), are attempting to raise awareness over patient-care issues at UC hospitals.

“UC administrators are asking frontline care providers to subsidize chronic understaffing, growing management bloat and unprecedented executive excess at UC’s taxpayer-supported teaching hospitals,” said Kathryn Lybarger, president of AFSCME 3299. “That’s something we simply will not do.”

The hospital employees have been working without a contract since September of last year. Negotiations have been slow, with little progress being made since the prior contract's expiration. The company dismissed the workers' concerns in a statement, providing that the strike vote was nothing but a bargaining chip. We will certainly keep you posted as to the results of the strike vote.

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Strongsville Teachers' Strike Enters Seventh Week: The San Francisco Chronicle reports that the Strongsville, Ohio teachers' strike is now in its seventh full week and shows no signs of abating anytime soon. Negotiators for both sides met for about thirteen hours last night, with the session finishing in the wee hours of this morning without a resolution. The strike has involved almost 400 teachers and has impacted over six thousand students in the Ohio town. We will keep you posted with any updates to this story.

Workers at American Crystal Sugar Back on the Job: The Twin Cities Pioneer Press reports that workers at American Crystal Sugar plants are headed back to work in Minnesota, North Dakota, and Iowa after a 20-month long lockout. The workers, represented by the Bakery, Confectionery, Tobacco Workers and Grain Millers International Union, voted to ratify a contract proposal that they had rejected on four prior occasions. Based in northern Minnesota, American Crystal is the country's largest sugar beet producer, employing some 2,800 growers.

UAW Hones in on Mercedes Plant in Alabama: Dawn Kent at Alabama.com writes that the United Auto Workers (UAW) has continued its recent trend of targeting southeastern auto plants for unionization campaigns by setting its sights on the Mercedes-Benz plant in Tuscaloosa County, Alabama. While it is hard to tell how much traction the UAW has gained thus far, it is clear that organizational efforts have been going on for about a year. Scholars fear that increased unionization efforts will give major companies pause before deciding to move down to the southeast.

"I don't think there's any doubt the reason that a lot of these automakers chose to operate in the South is they thought their chances were high that they could operate union-free," [said a Samford Law School professor]. "I suppose if one of the big automakers were to become unionized, that might dissuade companies from bringing more plants to the South."

Several unions have made plays at Mercedes in the past, with the UAW failing to succeed in an organizing campaign in 2007. We will certainly keep you posted.

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UAW Ups Ante at TN Volkswagen Plant: Dan Chapman of the Atlanta Journal-Constitution, in a story published by the Modesto Bee, writes that the United Auto Workers (UAW) are lobbying workers at a Volkswagen plant in Chattanooga, TN in the hopes of representing them in collective bargaining negotiations with management. Political officials have expressed varying levels of alarm at the UAW's efforts, with the Governor fearing that a unionized presence could "deter investment" from the state. Further, labor scholars have acknowledged that a unionized presence in the deep south could have a domino effect at other major operations.

"This is a game-changer. It is a very big deal that potentially begins to redefine labor-management relations," said Harley Shaiken, a professor at the University of California-Berkeley who specializes in labor issues.

As of now, all of the South's foreign auto plants are non-union. The UAW has already attempted to organize workers in both Mississippi and Tennessee and has failed at each attempt. We will keep you posted as this story moves forward.

NLRB Accuses Cablevision of Bargaining Violations: Steven Greenhouse of the New York Times reports that the National Labor Relations Board (NLRB) will be issuing unfair labor practice charges against Cablevision, alleging that the company has bargained in bad faith. The fight between Cablevision and workers represented by the Communications Workers of America (CWA) has been both loud and long, with workers engaging in protests and the company filing lawsuits.

The represented employees have been working without a contract since they voted to be represented by the CWA in bargaining negotiations some 15 months ago. Not surprisingly, Cablevision is contesting the Board's assertions that it has been negotiating in bad faith.

“We have a complete package of contract proposals on the table in front of the communications workers, and we are awaiting a response,” [stated a company spokesman.]

As of now, the case will proceed to an administrative hearing to determine whether the Board's charges hold water. We will keep you posted with any updates to this story.

UMass Nurses Give Leaders Strike Authorization: Boston.com reports that Nurses working at UMass Memorial Hospital have voted to give their union leaders the authority to call a one-day strike. The nurses, represented by the Massachusetts Nurses Association, are in the middle of negotiations with management over a new contract. The sticking points so far, namely staffing levels and benefits, have caused the negotiations to run for over a year now. A hospital spokesperson said that UMass Memorial was "disappointed" with the results of the strike authorization vote.

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SEIU Sues Gov. Corbett Over Health Center Closures: Matt Fair of Law360 ($$) reports that the Service Employees Industrial Union (SEIU) has filed a lawsuit against Pennsylvania Governor Tom Corbett in an effort to stop the shuttering of 26 community health centers in the state. SEIU claims that the planned closures will cause at least 73 workers to lose their jobs, while another 20 nurses would be subject to furloughs.

“Neither the governor, acting [DOH] Secretary [Michael] Wolf, the DOH, nor any other executive branch official has the legal authority to close state health centers, reduce the current number of state health centers, or reduce the level and scope of public health services,” the complaint said.

A spokesperson for the Governors office was unavailable for comment. Interestingly, several PA state Senators have signed their names to the lawsuit as well, making this situation somewhat reminiscent of the Executive/Legislative showdown we saw in the Noel Canning decision in January. We will keep you posted as this lawsuit moves forward.

Union Members Sue IAMAW Over Fines: Alejandra Cancino of the Chicago Tribune reports that almost thirty workers have joined together to file charges with the National Labor Relations Board against their representative union, the International Association of Machinists and Aerospace Workers (IAMAW). The unfair labor practice charges allege that the union illegally fined the workers for crossing the pickets during a strike at Caterpillar, Inc. last summer. In a seemingly particularly egregious case, member Jon Butler is alleging that he was fined almost $15,000.00, despite only being paid a little less than $13.00 per hour.

"It made me lose more respect for the union," said Butler, 23, who returned to work almost three weeks after the strike began on May 1. "I could have stayed longer in the picket line and file for bankruptcy, but being young as I am I was not going to risk my wife's future over a contract like this."

A Union spokesperson was unavailable for comment. The workers, currently being represented by the National Right to Work Defense Fund, expect to file more charges against the Union in the coming weeks. We will certainly keep you posted.

Striking OH Teachers Start Fighting PR Battle: Cory Shaffer of the Cleveland Plain Dealer writes that striking teachers in Strongsville, Ohio have issued a press release arguing that their current salaries are nothing short of a "bargain" for Ohio taxpayers. The striking teachers, now off the job for the fifth week, stated that their salaries are the third-lowest out of ten schools in the region that received a rating of "Excellent with Distinction" from the Ohio Department of Education.

"The Strongsville teachers clearly go the extra mile for their students and give residents bang for their buck," said SEA President Tracy Linscott in the release. "The time has come to debunk the myth that Strongsville teachers are overpaid, when in fact the truth may be just the opposite."

Both sides are expected to meet this morning in an attempt to resolve their differences and get the strikers back to work. We have been following this story since the strike began and will certainly keep the updates coming.
 

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Retired NFL Players Look to Mend Class Schisms: Jonathan Randles of Law360 ($$) reports that a group of retired National Football League (NFL) players have begun playing up the terms of their potential settlement with the League over publicity rights in the hope that a splinter group of retirees opposing the settlement will change their minds. The pro-settlement group filed a motion in Minnesota District Court last week urging the court to grant preliminary approval to the settlement.

The splinter group opposes the $42million terms because the funds will be paid out to charitable organizations instead of directly to the players themselves. However, the pro-settlement group contends that the splinter group has mischaracterized the settlements' terms, stating that the funds will be used to assist retiring players with career transitioning. We will keep you updated as this process moves forward.

Nurses at Boston Quincy Set for Strike: Jessica Bartlett of boston.com writes that nurses at Quincy Medical Center in Boston, MA have approved a one-day strike, set to take place on April 11. The strike has been called to draw attention to what the nurses believe to be unsafe conditions for patients at the hospital.

"The public needs to know how worried we are, that we’ve been telling management we don’t consider this situation to be safe, and they have been refusing to discuss the staffing plan with us,” said Stacey McEachern, RN, a nurse in the emergency department, in a release.

The hospital, in a press release, noted that it was ironic that the nurses union claimed to be concerned primarily about patient care when a nurses' strike could have a massively negative effect on the same. Further, the release went on to characterize the strike as a negotiating tactic. As always, we will keep you updated on the simmering tensions.

St. Paul Chamber Orchestra Says 'No Thanks' to Latest Proposed Termsheet: Graydon Royce of the Minneapolis StarTribune reports that members of the St. Paul Chamber Orchestra (SPCO) have voted down a deal brokered by the Minneapolis Mayors' Office. The proposed deal, which would give the players a competitive base salary as well as an equivalent to overtime pay, was rejected in a non-binding vote yesterday.

“We’re obviously disappointed with the results and we’ll have to regroup,” said Jessica Etten, an SPCO spokeswoman.

Importantly, the SPCO has stated that a deal must be reached by April 8 of this year in order to salvage a portion of the current playing season. However, as of now no further talks have been scheduled. We will keep you posted.

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Ralph's Grocery Asks SCOTUS to Weigh in on Picketing Row: Abigail Rubenstein of Law360 ($$) reports that Ralph's Grocery Co. has asked the United States Supreme Court to overturn a decision of the Supreme Court of California allowing unions to picket on private property outside of its stores. The California Supreme Court recently ruled that a union's picketing activity on private property is protected by California state labor law.

“Businesses that are free to exclude all other speakers from their private property should not be forced to open their property to labor-related protesters who are there for no reason other than to drive away customers,” the petition said.

While an attorney for Ralph's was unavailable for comment, a union attorney expressed hope that the Supreme Court would deny Ralph's request for review.

“The First Amendment theory that Ralphs has argued didn't find any takers in the California Supreme Court,” [attorney Paul More] said. “It's a theory that doesn't have any basis in precedent, and we are confident that the Supreme Court will recognize that and won't be interested in this case.”

OH Garbage Collectors Strike Continues: The Ohio TribToday reports that over 100 commercial refuse haulers, mechanics and landfill workers went on strike last Thursday. The group has been operating without a contract since this past November. Management officials have accused the union of refusing to negotiate in good faith. Meanwhile, the union has also alleged that management officials have committed unfair labor practices during negotiations.

The sides last met on March 14. Currently, the parties are not expected to meet again until April 9. Both sides agree that retirement benefits are the major sticking point in negotiations.

Philadelphia U Security Guards File ULP Charges: Emma Jacobs of newsworks.com writes that security guards at Philadelphia University have filed unfair labor practice charges against their employer, alleging that the University has interfered with the guards' attempts to collectively organize. Last week, the guards staged a protest on campus demanding better pay and more regular hours. Currently, the Board is investigating the allegations, but has yet to issue a complaint. We will certainly keep you posted.

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Pilots' Group Throwing Wrench into Merger Plans: Jake Simpson of Law360 ($$) writes that a group of plaintiffs ostensibly representing former American West Airlines Inc. pilots has filed suit in an attempt to put a stop to the merger between AMR Corp. and US Airways Group Inc. The crux of the pilots' allegations is that the U.S. Airline Pilots Association (USAPA) has been refusing to implement and make use of the correct seniority list. The seniority list, stemming from an award by Arbitrator Nicolau (the "Nicolau Award") should take precedence over competing seniority lists, say the pilots.

"USAPA has never had an objectively legitimate purpose for repudiating its duty to order seniority according to the Nicolau Award," the plaintiffs said. "Indeed, there is strong legal authority to reject those reasons as a matter of law. It is highly likely that this litigation will result in judgment that USAPA has no objectively legitimate purpose for repudiating the Nicolau award."

An injunction against the merger would cause more problems for struggling AMR, which is currently in the middle of a court-assisted reorganization in New York under Chapter 11. We will keep you updated as this process moves towards a resolution.

Nurses, Deaconess Hospital Reach Settlement on ULP Charges: Jodi Hausen of the Bozeman Daily Chronicle reports that nurses at Bozeman Deaconess Hospital have settled their unfair labor practice allegations with their employer. Under the terms of the settlement, the hospital has agreed to bargain in good faith with the nurses' union. Furthermore, the Hospital has agreed to change several of its internal policies, and in particular will now allow union representatives to accompany nurses to any potentially-disciplinary meetings. The Montana Nurses Association, the union representing the local nurses' union, was pleased with the settlement.

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Board Issues Complaint Against Walmart Staffing Firms:  Josh Eidelson at The Nation reports that the National Labor Relations Board has issued a complaint against four separate companies who staff and manage Walmart's distribution center in Elwood, Illinois. The complaint alleges that the companies have repeatedly threatened and punished employees for attempting to organize. 

"They had targeted organizers ever since we got back to the warehouse," Philip Bailey, one of the fired workers, said Monday.

Walmart did not respond to requests for comment. We will keep you posted as this matter moves through the Board's processes.

US and Canadian Soccer Referees Looking to Organize: Buzz Carrick of the Dallas Morning News reports that soccer officials in the United States and Canada, through the Professional Soccer Referees Association (PSRA), have filed documentation with the National Labor Relations Board in order to vote on whether the referees desire to be collectively-represented. If the referees vote to be represented by the PSRA, Major League Soccer will be forced to negotiate with the PSRA over the referees' new terms and conditions of employment.

A date for the election is yet to be set, but sources say that the referees are enthusiastic about unionizing. We will keep you posted as more information is disclosed.

Nippon Paper Employees on Strike: Paul Gottlieb of The Peninsula Daily News reports that as of this morning, more than 100 employees at Nippon Paper have walked off the job in protest over stalled contract negotiations. The workers, represented by the Association of Western Pulp and Paper Workers, were also set to begin informational picketing in front of the Port Angeles paper mill. 

Contract talks have been going on for almost two years now, with Nippon recently imposing its "last best offer" on the employees. The union is hoping to reopen talks, with assistance from a federal mediator. We will be following this story as it develops further. 

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In what should be a warning to all employers negotiating with unions regarding retiree benefits, the Second Circuit this week upheld a district court’s determination that an employer, was bound to honor an agreement it had entered into with the United Steelworkers to pay employees a medical allowance upon retirement.  United Steel Workers v. Cookson America, Inc., 10-CV-041S (2d Cir. Mar. 18, 2013).

The employer and the Steelworkers were parties to a collective bargaining agreement covering employees at the company’s Hamburg, New York, steel plant and foundry.  As part of the collective bargaining agreement, the employer agreed to pay employees that retired from the company and who had reached age 65 a one-time medical benefit allowance.

In August 2007, the employer announced it was going to close the Hamburg plant within one year.  In response to the announcement, the company and union entered into an agreement that 1) the existing collective bargaining agreement would remain in effect until the Hamburg plant closure was complete, and 2) the company would continue to honor the retiree medical allowance provision of the collective bargaining agreement.  The plant indeed closed in August 2008.

Sixteen months later, in December 2009, the employer announced that, as of January 1, 2011, it would no longer pay the retiree medical allowance to employees that retired from the company.  The Union sued the employer and its corporate parent seeking a declaration that the parties’ pre-closure agreement obligated the employer to continue paying the retiree medical benefit.  The district court agreed and the companies appealed.

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SEIU Strike Averted By Cooling-Off Period: LA Biz reports that the Service Employees International Union (SEIU) represented United Healthcare Workers West (UHW) and the Motion Picture Television Fund (MPTF) have agreed to a 60-day "cooling-off" period in order to avert a strike that was set to begin last night. Negotiations regarding a new collective bargaining agreement between the parties will continue in earnest during the break in hostilities.

Both sides expressed confidence that a deal could get done. However, last Friday the SEIU filed unfair labor practice charges with the National Labor Relations Board, alleging that the MPTF has refused to provide relevant information to the union. We will keep you posted as this spat moves towards a resolution.

AFGE Plans Wednesday Protest Against Sequestration Cuts: Josh Hicks of the Washington Post reports that the American Federation of Government Employees (AFGE), the nation's largest union of federal workers, is planning a national day of protest in response to last month's sequestration cuts. The sequester, which took effect March 1 of this year, will most likely cause government employees to take involuntary furloughs in response to the mandatory budget cuts.

"Sequestration has got to go,” AFGE president J. David Cox Sr. said in a statement. “If federal employees are furloughed without pay, if offices and plants are shut down, if vacancies aren’t filled because of these across-the-board budget cuts, then federal employees won’t be able to do the work that the American public expects them to do.”

The AFGE has organized approximately 100 different protests that are set to go off at noon tomorrow. We will keep you posted as the situation unfolds.

Unite Here and Hyatt Set to Spar Over Board Nominee: Samantha Bomkamp of the Chicago Tribune writes that Unite Here!, the union representing the majority of Hyatt Hotels employees, plans to hold a "nomination convention" in Chicago, IL on Wednesday. During the convention, a vote is expected to be taken that will place Cathy Youngblood, a Hyatt housekeeping employee, on the company's board of directors.

Hyatt and the union have been engaged in a years' long labor dispute. Despite the fact that Hyatt has reached agreements in several locations with its workers in recent days, Chicago's employees are still working under an expired collective bargaining agreement.

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Wisc. Bargaining Law Remains Unenforceable Pending Appeals: Sindhu Sundar of Law360 ($$) reports that yesterday, a Wisconsin appeals court held that it would preserve a lower court's ruling invalidating portions of Wisconsin's controversial law that limits the collective-bargaining rights of public sector employees pending an appeal. The ruling strikes a blow to the efforts of Governor Scott Walker to rein in public-sector unions amid burgeoning deficits.

“Because the ultimate weighing of such factors was within the [Judge Colas’s] discretion, we see no basis to set aside [his] decision that a stay was not warranted,” the panel said Tuesday.

The lower court had found that limiting public-sector raises to "cost-of-living" increases only was unconstitutional. The state is certain to appeal and we will keep you posted as the matter moves towards a resolution.

Teachers and Students at Odds in Strongsville Strike: Cory Shaffer of the Cleveland Plain Dealer writes that the Strongsville, Ohio teachers' strike, now in its second week, has generated strong responses both supporting and lambasting the teachers' union. Last week, hundreds of teachers staged a march to raise awareness of their cause. However, along the way, they encountered angry students and parents who just want the teachers to go back to work.

“There’s a lot of bad behavior and bullying going on right now, and I feel like the parents need to speak,” said Laura Phillips, Strongsville High School’s cheer leading adviser. “In today’s economy, people should be happy to have a job, period. Teachers need to get back to work because we need some normalcy in this town.”

Students also stated that they feel betrayed and "abandoned" because of the strike and just want things to get back to normal. Currently, no further negotiations are planned, so the strike is set to continue through the weekend at least.

Exchange Students Strike at PA McDonalds: David Macary of the Huffington Post writes that last week a group of student guest workers staged an impromptu strike to protest their working conditions at a central Pennsylvania McDonalds franchise. Specifically, the students alleged that McDonalds had promised them full-time employment, but are currently staffing them only a few hours a week. The students also complained that they have not received overtime to which they are entitled.
 

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Lackawanna College Union Protests Claim of Impasse: Sarah Hofius Hall of the Scranton Times-Tribune writes that Lackawanna College has imposed its last best offer on the Professors' union, sparking ire among Lackawanna faculty members. The faculty has been working without a contract since June of 2011 and has been engaged in negotiations with administrators for almost two years.

"This approach does not reflect an effort stemming from a high-mindedness that we espouse as one of this great college's mission criteria," union leaders wrote in a letter to their membership. "It is the epitome of a cruel irony that such a strategy would be exercised by a few individuals given great access to power over Lackawanna's operation, and thus its future."

The union plans to take its complaint to the National Labor Relations Board, but has stressed that it is still willing to engage in good-faith negotiations with the college. Lackawanna administrators  declined to comment on the story.

Kansas Legislature Ponders Trimming Teachers Unions' Rights: Brad Cooper of the Kansas City Star reports that lawmakers in Kansas are in the process of debating several pieces of legislation that would have the effect of limiting the collective-bargaining rights of Kansas' Teachers Unions. Another bill being debated would bar teachers' unions from using voluntary paycheck deductions for political purposes.

“We are seeing a lot of things that appear to be a direct attack on teachers,” said Kansas National Education Association President Karen Godfrey.

Last weekend, more than 300 teachers and supporters showed up at a legislative forum in Wichita in order to protest Kansas' attempts to limit the teachers' bargaining rights. Furthermore, several school boards have come out against the law, saying it is not the right way to reform the educational system in Kansas. 

LA Mayoral Candidate Greul Gets Key Labor Backing: Seema Mehta of the Los Angeles Times reports that yesterday, Los Angeles Mayoral candidate Wendy Greuel accepted the endorsement of the Service Employees International Union, Local 721 (SEIU). The SEIU represents over 10,000 city workers and has become a powerful influence in city politics.

“I am so grateful to the workers who every single day provide the services to our residents. Let’s not demonize them, let’s not divide our city. Let’s support our city,” Greuel said, ... “Let’s support our workers, let’s support business and let’s support a brighter future because each of us can make a difference. It means the world to me to stand here today with all of you because you make us proud.”

The announcement occurred at SEIU headquarters in downtown LA, where workers surrounded Greuel and held signs saying, "Wendy for Mayor." The runoff election is set to take place on May 21, 2013, and is expected to be a very tight race.

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IL State Workers, Governor Reach Tentative Deal: John O'Connor and Sophia Tareen of the Associate press report that yesterday, the American Federation of State, County and Municipal Employees (AFSCME) reached a tentative deal with Illinois Governor Pat Quinn that will narrowly avert the first-ever public workers' strike in the state of Illinois. An AFSCME spokesperson said the deal will include a pay raise. However, employees will also take on increased health care costs.

“AFSCME is very pleased that we were able to reach an agreement that protects our members’ standard of living, and is fair to them and all Illinois citizens, even in these very challenging economic times,” Council 31 Executive Director Henry Bayer said in a statement.

The Governor's office had been negotiating with AFSCME officials for more than a year before last night's deal was struck. Illinois' unfunded pension, liability, the worst in the country, currently stands at $96 billion. As such, it is probably safe to assume that this will not be the last bit of labor unrest in Illinois.

Vegas Taxi Drivers Announce Plans to Strike: Tim O'Reilly of the Las Vegas Review-Journal writes that taxi drivers working for Yellow Checker Star Transportation plan to walk off the job at midnight Sunday after the company unilaterally implemented its last best contractual offer at the beginning of February. The drivers, represented by the Industrial Technical Professional Employees Union (ITPEU), account for a full quarter of Las Vegas' taxi fleet.

"The strike date could change if the employer comes back with a better offer, but that is doubtful," union spokeswoman Nicole Korkolis said.

The Nevada Taxicab Authority, the agency responsible for licensing cab drivers in the city, already has plans in place to distribute licenses to replacement cab drivers if and when ITPEU drivers begin to strike. We will keep you posted as this situation develops further.

Providence Hospital Workers Deliver Strike Notice: Rolf Boone of the NewsTribune reports that hospital workers at Providence St. Peter Hospital in Washington state have delivered notice to hospital administrators of their plan to strike from March 11 to March 16, 2013. The workers, represented by the Service Employees International Union, have grown increasingly frustrated by the hospital's refusal to expand its health care plans.

“If Providence still won’t make a commitment to affordable care, the strike will grow with 150 RNs, social workers, licensed practical nurses, and support staff from SoundHomeCare and Hospice joining the strike for three days starting March 13,” the SEIU said in a news release.

A hospital spokeswoman told reporters yesterday that the hospital already has contingency plans in place in case the strike goes forward. Furthermore, the hospital emphasized in a statement that it is prepared to resume negotiations at the bargaining table.

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AFL-CIO Implores President Obama to Nominate a Full Labor Board: Ben James of Law360 ($$) writes that yesterday, the AFL-CIO executive council drafted a policy statement calling on President Obama to nominate a full slate of five members to the National Labor Relations Board. The AFL-CIO, representing 57 affiliate unions, further pledged to hold obstructing Senators from either party accountable for any foot-dragging.

“The president must immediately nominate, and the Senate must quickly confirm, a full package of nominees to the NLRB — five board members, including Chairman Mark Pearce, members [Richard] Griffin and [Sharon] Block, two Republican members, and Acting General Counsel Lafe Solomon,” the statement said.

The policy statement also took a swipe at the D.C. Circuit Court of Appeals' recent Noel Canning ruling, which purported to invalidate President Obama's recess appointments of Members Flynn, Block and Griffin. While a full Board would bring some much-needed certainty to labor law in this time of upheaval, expecting Senate Democrats and Republicans to quickly approve any Board nominations is probably wishful thinking at this point. We will certainly keep you posted if and when the nominations occur. 

UAW Campaign Gaining Momentum at TN Nissan Plant: Nathan Bomey of the Detroit Free Press reports  that hundreds of autoworkers at Nissan's Smyrna, TN plant gathered together yesterday to meet with UAW representatives in an effort to further UAW's organizing campaign at the plant. Previous UAW campaigns at the plant have failed to garner more than 30% of worker support for the union.

“We were surprised at the level of support,” an official said Wednesday. “It speaks to the amount of dissatisfaction in the company.”

Interestingly, current UAW President Bob King has stated that successfully organizing at a foreign-owned plant is one of the union's top priorities for the year. An election has yet to be scheduled, but we will keep you posted if the situation develops further.

School Board Fears Strongsville, OH Teachers' Strike: Jen Steer of newsnet5.com reports that the Strongsville, Ohio School Board has requested police officers to station themselves outside of all city schools on Monday in anticipation of a teachers' strike. David Frazee, the School Board President, spoke to reporters and expressed his dismay at the lack of progress in negotiations between the teachers' union and city officials.

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Nova Southeastern Workers Approve SEIU Representation: Miriam Valverde of the Sun Sentinel reports that maintenance, cleaning, and landscape workers at Nova Southeastern University have voted to be represented by the Service Employees International Union (SEIU). The vote ends an approximately seven-year saga that included public protests and layoffs. Eric Brakken, Florida director of the SEIU, praised the ratification vote.

"I think it's a victory for the workers, I think it's a victory for the community," Brakken said. "It's going to help them move closer to the middle class and that's something we should all celebrate in South Florida."

The union-organizing campaign, as stated above, was often contentious. In 2008, the SEIU filed charges with the National Labor Relations Board (NLRB) against the University, alleging illegal interference with the workers' efforts to unionize.

NY City Council Takes Cablevision to Task: Joe Ryan of the Long Island Newsday reports that last night the New York City Council (NYCC) accused telecom giant Cablevision Corp. of engaging in "union-busting." In particular, the NYCC alleged that Cablevision's dismissal of 22 workers was in response to union-organizing efforts at its Bethpage facility.

"The company is engaging in textbook union busting," Councilman Brad Lander (D-Brooklyn) said during the hearing, which examined whether Cablevision violated labor provisions under an agreement allowing the company to install cable under city streets.

Cablevision's attorney countered Lander's assertion, responding that the 22 workers were not fired, but rather were permanently replaced after refusing to work. The dismissals are currently being investigated by the NLRB.

Twin Cities Security Contracts Walk Off the Job: Paul Walsh of the Star Tribune writes that about 2,000 SEIU-represented security contractors walked off the job in Minneapolis and St. Paul this morning. The security workers are primarily contracted out to Target, Wells Fargo, and U.S. Bank. SEIU officials said that the one-day strike came in response to failed emergency negotiations.

Those off the job Wednesday are doing so “to protect and strengthen the middle class through a fair contract for thousands of workers,” SEIU Local 26 said in a predawn statement on behalf of the 2,000 striking security officers.

Picketing is occurring in front of Wells Fargo in downtown Minneapolis. Further picketing is planned in various parts of the Metro for later today.

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WA Judge Slaps Down Union Challenge to Seattle Development Plans: Kaitlin Ugolik of Law360 ($$) reports that last Friday, a Washington state judge granted summary judgment to the city of Seattle in its fight against the International Longshore and Warehouse Union (ILWU) to move forward with a massive redevelopment project that could bring professional basketball back to the city. The ILWU had contended that the city's plan was subject to environmental review pursuant to an October 2012 Memorandum of Understanding (the MOU).

“This is a big win in our work to bring the Sonics home to Seattle,” Seattle Mayor Mike McGinn said in a statement Friday.

ILWU attorneys could not be immediately reached for comment. The project is expected to cost almost a billion dollars and could also be the impetus for bringing professional hockey to the city.

Chamber Orchestra's Season at Risk as Contract Talks Resume: Marianne Combs of Minnesota Public Radio writes that the Saint Paul Chamber Orchestra (SPCO) met with management officials all day yesterday in an attempt to finally solve their long-running contractual dispute. Critically, both sides want to get the musicians playing again before the concert season ends. However, they are currently at odds over how to make that happen. Management officials have proposed a "talk and play" structure, where the musicians would resume performances while contract negotiations continue. The SPCO has yet to agree to the proposal.

The three main sticking points are: pay, how to reduce the size of the SPCO from 34 to 28 positions, and the electronic media agreement, that is the use of SPCO performances online.

In another twist to this story, the American Federation of Music (AFM) has recently filed unfair labor practice charges with the National Labor Relations Board against the SPCO. The AFM has alleged that SPCO leadership has not negotiated with the AFM in good faith over the dissemination of the SPCO's performances online.

Baseball Union Chief Discusses Increasing Drug Penalties: The Associated Press reports that Michael Weiner, the head of Major League Baseball's players' union (MLBPA), has stated that recent talks have centered around increasing penalties for positive player drug tests. 

"There are certainly some players who have expressed that," Weiner said. "We've had discussions with the commissioner's office. If it turns out that we have a different penalty structure because that's what players are interested in, that's what the owners are interested in, it will be for 2014."

Weiner stressed that while MLB already has the most stringent drug penalties in American sports, players are still willing to make collective sacrifices in order to ensure that the game is played clean. Any changes to the current drug-testing regime must be approved by both the League and the Players' Union. We will keep you posted as talks continue.
 

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D.R. Horton Ruling Takes Another Hit: Stewart Bishop of Law360 ($$) reports that a federal judge in the Southern District of New York ruled Friday that he would grant JPMorgan Chase Bank's (JPM) motion to compel arbitration, rejecting the plaintiff's claim that the arbitration clause she signed with the company was void in light of the National Labor Relations Board's controversial D.R. Horton ruling. Judge Vince Bricetti joined several other courts in holding that the National Labor Relations Act does not govern whether a prospective plaintiff can bring a collective action under the Fair Labor Standards Act.

“The court finds the [arbitration agreement’s] class action waiver is fair, permits [Ryan] to vindicate her statutory rights under the FLSA, does not hinder her ability to recover attorney’s fees or costs and comports with public policy favoring arbitration and honoring private contracts,” the judge wrote.

Judge Bricetti's ruling is a further blow to the Board's attempt to limit class and collective-action waivers in the context of labor disputes. We here at @LRToday have been watching this issue since its inception and will keep you updated.

Minneapolis/St. Paul Security and Cleaning Workers Ready to Strike: Andy Greder of the Twin Cities Pioneer Press writes that security and cleaning contract workers in the Twin Cities of Minneapolis and St. Paul, MN are ready to walk off the job as soon as tonight. The workers, numbering almost 2,500 strong, are contracted out to Target, Wells Fargo, and U.S Bank, among other locations, according to Javier Morillo, president of SEIU Local 26.

"The fundamental thing that separates us is their unwillingness to talk," said Morillo, whose union was able to receive better hours, wages, job security and health care for the janitors.

Interestingly, the store cleaners are currently unrepresented, but are being assisted by the Center of Workers United in Struggle. The cleaners have unsuccessfully attempted to organize sporadically over the past three years. We will keep you posted as this situation unfolds.

IL State Workers Considering Whether to Strike: The Associated Press reports that Illinois state employees represented by the American Federation of State, County and Municipal Employees (AFSCME) are considering whether a strike would be in their best interests as the most recent round of contract talks between their representatives and the state have stalled. The state of Illinois is currently facing a $96 billion deficit in its public-worker pension system. Negotiations are set to resume this week, but AFSCME leaders have warned that futility at the bargaining table could lead to a walk-out.

“People are getting to the point where they’re so angry and so frustrated that they think, what’s the use of sitting down with these folks every two or three weeks if nothing’s going to change?” [AFSCME Executive Director Henry] Bayer said.

State workers in Illinois have never struck since the inception of public-sector collective bargaining in the state in 1973. We will be watching these negotiations closely and will keep you informed of further developments.
 

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St. Paul Orchestra Files Unfair Labor Practice Charges Against Management: Euan Kerr of Minnesota Public Radio reports that the American Federation of Musicians (AMF) has filed unfair labor practice charges against the St. Paul Chamber Orchestra's (SPCO) management. In particular, the charges allege that SPCO management has failed to adequately respond to an AMF information request regarding SPCO works being published online.

"To understand their proposal we need to know what those recording are, we need to know who was involved in the making of those recordings, we need to know who the guest artists were, and we have been asking for that information since September," [AMF President Ray] Hair said.

SPCO management responded in kind, alleging that the AMF has thus far refused to negotiate the issue in good-faith. Moreover, the SPCO management team expects the Board to vindicate its position.

MI Panera Bakers Working to Unionize: E.B. Solomont of the St. Louis Business Journal reports that bakers at a Panera bread franchise in Michigan are fighting against their employer in an attempt to unionize. The bakers have been working towards collective representation by the Bakery, Confectionery, Tobacco Workers and Grain Millers International Union (the Union) for over a year. Dan Wood, a baker leading the effort, had this to say:

 “I don’t want to hurt the company,” Wood told the Huffington Post. “I just want us to be recognized for what we are: the engine. You can’t buy anything from a Panera that we don’t touch.”

Officials at Panera's headquarters have issued a statement, saying that the company's goal is to treat all workers with respect. We will keep you posted as the situation unfolds.

NYC Drivers' Strike Called Off By Union: The Associated Press reports that the New York City school bus drivers' strike, which began over a month ago and has left more than 150,000 students stranded, has been called off by the Amalgamated Transit Union, Local 1181. Regular service is expected to resume this morning.

Driver Philip Pan proudly displayed a hand-written "welcome back" card on the dashboard of his bus. Pan says he and the people he serves are "like a family."

The strike was purportedly abandoned because New York City's leading mayoral candidates have promised to address drivers' job security concerns if elected. Interestingly, Mayor Michael Bloomberg had said previously that the drivers' requests for increased job protections were illegal under New York law.

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Saline Plant Workers File Charges Against UAW: Ben Freed of AnnArbor.com reports that automotive workers at the Faurecia plant in Saline, MI have filed unfair labor practice charges against the United Auto Workers. In pertinent part, the complaint states as follows: 

“The Union through its agents and representatives, has restrained and coerced employees of ACH by: 1. Since about October 1, 2012, misrepresenting to them the consequences of surrendering their ACH employment to take jobs with Devon Alpha Services; 2. On or about December 1, 2012, requiring ACH employees who accepted employment with DAS to execute membership applications and/or dues checkoff authorizations in order to collect their first paycheck with DAS.”

A spokesman for the UAW stated that the union was reviewing the charges and would not comment further.

Bozeman Nurses to Hit the Picket Lines: Lauren Maschmedt of NBCMontana.com reports that represented nurses at Bozeman Deaconness Hospital in Bozeman, MT are planning to picket this week to put pressure on the hospital during pivotal contract negotiations. The nurses, represented by the Montana Nurses Association (MNA), said their demands are simple.

"One of the issues that we really want to talk about is respect in the workplace" Johnson said. "We want some wording in our contract that would cover bullying and any intimidation."

Both sides, however, stress that the negotiations are happening in good faith and are working hard towards an amicable resolution. Further, the nurses have made it clear that they are not going on strike. New bargaining sessions are scheduled for this week.

VWR Employees Vote for Union Representation: The PR Newswire reports that workers at VWR in Visalia, CA have voted overwhelmingly in favor of representation by the Teamsters, Local 948. The now-unionized workers have expressed hope that collective bargaining will raise their wages up to industry standards.

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El Paso Nurses Choose NNOC as Bargaining Agent: Vic Kolenc of the El-Paso Times reports that nurses at Sierra Medical Center in El Paso, TX have voted to select the National Nurses Organizing Committee (NNOC) as their exclusive bargaining representative. The nurses voted Tuesday, with the union winning by about 40 votes (113-74).  A Sierra spokesperson expressed her disappointment with the union's victory, but promised to negotiate in good faith with the newly-minted union.

"Sierra Medical Center believes what's best for employees and management is working together without the involvement of a third party," Garcia said. "It has always been our position that the hospital offers competitive wages and benefits, and management promotes a positive work environment."

A union spokeswoman, however, expressed her excitement with the victory, claiming that El Paso is now a "union town" for nurses.

NYC Accepting Driver Bids Even Though Strike Continues: Phil Corso of the Queens Times-Ledger reports that the New York City Department of Education (DOE) has begun the process of reviewing bids from several bus companies over the more than 1,100 bus routes that went out in late December, even though the city is still dealing with the Amalgamated Transit Union (ATU) school bus drivers' strike, which is now almost a month old.

The city is hoping that the new round of bids would save millions of dollars in the long term because any new bids will not include driver job protections, which has become a major sticking point in negotiations between the city and the ATU. The union has asked the mayor to suspend bidding and put ATU employees back on the job.

“The mayor has the power to put our drivers and matrons back to work,” said Michael Cordiello, president of ATU Local 1181. “All we ask is that he suspend the bids and is willing to discuss ways to reduce costs within the school bus transportation industry, which the union has shown has nothing to do with keeping the most experienced school bus crews on the road.”

Workers Push Back Against Activist Union: Ira Kantor of the Boston Herald reports that workers at Complete Cleaning, Inc. in Lynn, MA have won a settlement after filing a complaint with the National Labor Relations Board against the Services Employees International Union (SEIU), Local 615. The complaint alleged that SEIU officials had attempted to claim a monopoly over Complete Cleaning employees' bargaining rights.

“Massachusetts needs a Right to Work law to make it less difficult for workers to keep predatory union bosses in check,” said Mark Mix, president of the National Right to Work Legal Defense Foundation.

The settlement also requires the SEIU to stop attempting to claim bargaining power until it can affirmatively show that it has the support of a majority of employees at Complete Cleaning.
 

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Bronx Car Wash Employees End Three-Month Strike: Jennifer Cunningham of the New York Daily News  reports that car wash workers at Sunny Day Car Wash in the Bronx, NY, have returned to work after three months of striking. The workers walked off the job in early November after not receiving wages for several weeks.

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Striking Bus Drivers Rally at City Hall: NY1 News reports that over 1,000 New York City school bus drivers and matrons assembled in front of City Hall yesterday afternoon, calling on Mayor Bloomberg's office to become involved in the now four-week old strike.

"We're here today for our job protection, our job security. This is what we need," said a member of ATU Local 1181. "We've been having it for 33 years. We need this. If not, we won't have a job."

Union members first began picketing almost a month ago to demand job protection language in any new labor deal. However, the city has maintained that such job protection language is illegal and has further called for the drivers to negotiate directly with the private companies that hire them.

Saginaw Police Negotiations at Impasse: Mark Tower of MLive reports that negotiations between the city of Saginaw and the local Police Officer's union over a new contract have broken down. City staff have told local media that there are no new meetings scheduled between the two parties. However, leaders in neighboring cities have encouraged the parties to get back to the table.

"Get the unions involved," [Pontiac Mayor Leon] Jukowski said. "It's going to be much easier if this is something that is negotiated."

The talks began last year in an effort to close a $3.2 million budget shortfall before July, 2013. We will keep you posted as the situation develops further.

More and More Unions Popping Up at Charter Schools: AFT News writes that three new unions have won recognition at charter schools in New York State, Los Angeles, and Detroit. The Detroit election occurred on February 7, 2013, and was the first union victory since the National Labor Relations Board ruled that charter schools should be considered private-sector employers for the purpose of collective bargaining.

The ballot outcome of the Feb. 7 election was 88 for the union, 39 opposed. Said Becky Wilinski, a middle school social studies teacher at Chavez Academy, "We are reminding Gov. Snyder that workers in Michigan still have the right to say 'union, yes!'"

The New York and Los Angeles unions received voluntary recognition after administrators received union petitions at both schools. This recent spate of union victories at charter schools across the country may be a sign of things to come in the wake of the Board's December ruling. We at @LRToday will certainly keep you posted.

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On January 18, 2013, the Federal Acquisition Regulatory (“FAR”) Council implemented Executive Order (“E.O.”) 13495 (“Nondisplacement of Qualified Workers Under Service Contracts”) into regulation at FAR Subpart 22.12.  Our colleagues at McKenna Long & Aldridge's Government Contracts Advisor blog report: 

FAR Subpart 22.12 requires successor service contractors and subcontractors (whose contracts are above the simplified acquisition threshold) to offer “service employees,” who were employed under predecessor contracts, “a right of first refusal of employment” when the successor contract is for the “same or similar service[s]” and at the “same location” as the predecessor contract.  As we outlined in our recent client advisory, service contractors and subcontractors must carefully review this regulation to understand its impact on hiring processes, especially in light of the ambiguities, loopholes, and strong enforcement provisions contained in the regulation.  For example, FAR Subpart 22.12 does not define the phrase “same location,” leaving it open to various interpretations: the “same location” could be limited to the same building or expanded to include all services performed in the same city.  As one can imagine, such interpretations could dramatically affect the reach of this regulation.  On the enforcement side, this regulation allows the contracting officer to suspend payment on a contract or suspend or debar a contractor, in certain instances.  Further, disputes arising from FAR Subpart 22.12 will not be subject to the Contract Disputes Act; they will be resolved in accordance with Department of Labor procedures set forth at 29 C.F.R. part 9.

In a client advisory and blog post published when President Obama issued E.O. 13495, we observed the potential labor relations impact of the Order:

The Order expressly states that it is intended to promote “economy and efficiency” by “reduc[ing] disruption” to services and ensuring “an experienced and trained work force.” Pursuant to labor law “successorship” principles, however, the Order will also have the effect of securing the continued recognition of the predecessor’s union representative and preventing the successor from unilaterally setting initial terms of employment. Under well-settled law, unless it is "perfectly clear" that a new employer intends to hire all of a predecessor’s employees, the new employer is free to set the initial terms and conditions of employment. However, where it is “perfectly clear” that all prior union-represented employees will be retained, the successor must maintain the pre-existing wages and benefits for those employees while bargaining with the union over terms and conditions of employment.

Service contractors should continue to act carefully and make calculated decisions when considering taking over for incumbent contractors. We, and our friends at the Government Contracts Advisor, will continue to monitor legislative and regulatory activities in this area.

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It was going to be hard to top 2011 in terms of unique and dynamic labor law developments. But 2012 may just have lived up to the task.

Seeking to ensure that the Board would have a quorum to operate during the year, on January 4, 2012, President Obama attempted the "recess" appointment of three members.  Despite the controversy swirling about these appointments, the Board continued apace to expand the rights of employees and unions under the National Labor Relations Act.  Among the more notable results were the invalidation of class waivers and mandatory arbitration agreements; the further diminution of the facility-wide presumption in organizing cases; and a number of decisions tilting the balance in collective-bargaining negotiations.  At the same time, the Acting General Counsel continued to pursue an expansive agenda -- issuing numerous new complaints and explanatory memoranda in social media cases.

The courts, however, dealt the Board a series of blows throughout the year, dismissing the Board's challenge to Arizona's secret ballot amendment; and invalidating the Board's rule-making on required notice-posting and "quickie elections".  But no court action carried as much import as the January 2013 Noel Canning decision by the Circuit Court of Appeals for D.C. which declared the President's "recess" appointments unconstitutional, and found that the Board lacked a quorum to act throughout 2012.

The labor attorneys here at Labor Relations Today have been following these significant developments every step of the way. Today we are publishing "Labor Law in 2012: A Year in Review." This brief summary highlights some of the most noteworthy developments in 2012. We hope you find it a helpful resource as we head into what is certain to be one of the most interesting years in labor law in some time.

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Justice Ginsburg Denies HealthBridge's Injunction Request: Sindhu Sundar of Law360 ($$) reports that Justice Ginsburg has denied HealthBridge Management LLC's request to stop a partial injunction that would require the company to reinstate striking workers. HealthBridge argued that the recent D.C. Circuit ruling invalidating President Obama's recess appointments to the National Labor Relations Board should delay the injunction until the whole mess is sorted out.

“It makes little sense for the courts to order immediate action at the behest of the board here when the board’s ability to act is in profound doubt and will be addressed by this court,” HealthBridge argued.

The row stems from a dispute between the company and the New England Health Care Employees Union, which represents HealthBridge employees at several facilities in Connecticut. Over 600 workers have been on strike since July, when the most recent round of contract talks broke down.

HealthBridge's attorneys said that they were reviewing Justice Ginsburg's denial and were most likely planning on re-petitioning another Justice for review, which is allowed under Supreme Court rules. We will be watching this issue closely and will keep you up to date.

ULP Charges Going Ahead Despite Claims of Union Malfeasance: Tarryl Jackson of MLive reports that a long-simmering labor dispute between Hendrickson Trucking and Jackson's Teamster Local 164 is headed for review to the National Labor Relations Board. The charges remain active despite several allegations of financial improprieties committed by union officials.

Recently, it was discovered that Al Sprague, local president of the International Brotherhood of Teamsters, had been collecting state unemployment checks. Furthermore, local secretary and treasurer William Bernard alleges that he is owed over $100,000 in unused vacation pay, despite the fact that the local's assets are less than half that amount. A spokesman for the union said that it would not comment on internal investigations.

Coastal Ports and Longshoremen Reach Deal in Principal: Larry Swisher of Bloomberg BNA ($$) reports that the International Longshoremen's Association (ILA) and the United States Maritime Alliance (USMX) have agreed in principal to a six-year contract that would govern relations between the employer and over 15,000 dock workers. However, the agreement is still subject to ratification by ILA members. Further, 14 local port agreements must be negotiated before the master contract can be finalized.

The two sides were brought back to the bargaining table in December after a bi-partisan coalition urged President Obama to invoke the Taft-Hartley Act. Doing so kept the parties' discussions moving forward and also avoided a potential copycat scenario of the Los Angeles Port strikes, which were short, but economically devastating.

We will continue to follow the local port negotiations and will report back when the contracts are completely ratified.

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A Different Take on the Hostess Bankruptcy: Megan McArdle of the Daily Beast published a thought-provoking piece on Tuesday regarding the recent Hostess bankruptcy. McArdle posits that the Baker's Union, derided in the press for their "unreasonably demands," has actually put together a brilliant negotiating strategy. Instead of fighting with Hostess, the Baker's Union essentially forced Hostess into bankruptcy in order to blow up the Teamsters' contract and start from scratch. Holman Jenkins of the Wall Street Journal explains the issue as follows: 

Under the latest turnaround plan, the sticking point was Hostess's distribution operations, source of the Hostess horror stories filling the media. Union-imposed work rules stopped drivers from helping to load their trucks. A separate worker, arriving at the store in a separate vehicle, had to be employed to shift goods from a storage area to a retailer's shelf. Wonder Bread and Twinkies couldn't ride on the same truck.

Essentially, massive inefficiencies in the Teamsters' contract, not the Baker's contract, forced Hostess out of business. The company is currently close to selling off its Twinkie brand to an investment firm. Perhaps a new deal for the Bakers will follow. We will keep you posted.

Sen. Barrasso Moves to Kill 2012 Board Decisions: Fox News reports that Senator John Barrasso (R-Wyoming) has introduced legislation that would effectively hit the reset button and overturn all National Labor Relations Board decisions made in the last year. Sen. Barrasso's bill comes in the wake of last week's Noel Canning ruling that held that the Board did not have enough members to constitute a quorum because President Obama's recess appointments were constitutionally unsound.

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Pacific Beach Hotel, Workers Reach Deal to End 10 Years of Labor Unrest: Howard Dicus of Hawaii News Now reports management officials at the Pacific Beach Hotel in Honolulu, HI and its workers have reached an agreement to end 10 years of labor strife. The contract, which the ILWU stated was ratified by 99 percent of workers, is for four years and guarantees a 13% raise for employees over the term of the agreement. The negotiations were often tense, with union officials filing unfair labor practice complaints with the National Labor Relations Board on several occasions.

"We thank the many people and organizations from Hawaii and around the world who came forward to support this struggle," said ILWU International Vice President Wesley Furtado in a statement.

Worries Over Potential School Bus Drivers' Strike in NYC: NY1 news reports that parents of school-aged children in New York City are gearing up for a potential school bus drivers' strike. The possible labor protest is apparently in response to the drivers' employers' failure to meet increased demands for job protection.

Schools Chancellor Dennis Walcott says the state's highest court ruled the city can't give those protections. "This is a strike against our children. It is illegal as far as what they're asking us to do and they are hurting our most vulnerable children and it is totally unacceptable," Walcott said.

While parents' concerns are certainly justified, the union has stated that it will provide the companies with at least 24 hours notice before walking off the job. We will certainly keep you posted with any new developments.

Palermo Pizza Organization Efforts Receive Cash Injection from United Steelworkers: Jeff Engel of the Business Journal of Greater Milwaukee reports that United Steelworkers Local 675 out of Carson, CA has been donating $500 a month to the union organizing effort currently occurring at Palermo Pizza. Dozens of Palermo workers have been striking since June in protest against allegedly unsafe working conditions. The strikers are also seeking pay raises and other unspecified management concessions.

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On December 14, 2012, the National Labor Relations Board reversed decade-old precedent and held in Alan Ritchey, Inc., 359 NLRB No. 40, that unionized employers may not impose discretionary discipline unilaterally. The decision marks another in the trend of mid-December Board offerings completely changing the course of NLRA interpretation -- and prospectively only.

This case arose after Respondent’s employees voted to be represented by the Union, but before the parties were able to enter into a binding collective-bargaining agreement. Respondent had continued to impose discipline for absenteeism, insubordination, threatening behavior, and failure to meet efficiency standards. The sanctions, ranging from a formal warning to discharge, were imposed pursuant to Respondent’s pre-existing progressive disciplinary system, which had been in effect since Respondent opened the facility -- and prior to the union's recognition. While Respondent’s disciplinary system outlined specific sanctions to be enacted in response to certain situations, the Respondent’s employee handbook also provided that Respondent reserved the right to exercise discretion in the enforcement of its policies, acknowledging that situations may arise that would warrant flexibility on the part of management.

The Board relied heavily on its decision in Oneita Knitting Mills, 205 NLRB 500 (1973) wherein it held that an employer with a past history of a merit increase program could not unilaterally discontinue the program, nor could the employer exercise unilateral discretion with regard to such increases, once an exclusive bargaining agent had been selected by the employees. Instead, the employer was required to continue the general framework and to bargain with the union over the amount of the "discretionary" merit-based increases.

Purportedly applying the principle from Oneita Knitting to the case at hand, the Board held that where an employer’s disciplinary system is fixed as to broad standards, but discretionary as to what type of discipline will be imposed in a particular circumstance, an employer must maintain the system’s fixed aspects and bargain with the Union over any discretionary aspects of the system. The Board further held that the duty to bargain is triggered before an employee could be suspended, demoted, or discharged. However, the duty to bargain over lesser sanctions, such as oral or written warnings, is not triggered until after their imposition. The Board maintained that the difference in the timing of the duty to bargain was appropriate because suspensions and discharges greatly affect an employee’s terms and conditions of employment, while oral and written warnings have much less of an effect.

Where the pre-imposition duty to bargain exists, an employer is now obligated to provide the Union with notice and an opportunity to bargain before discipline is imposed. The Board held that this duty involves sufficient advance notice to the Union to allow for meaningful discussion regarding the grounds for imposing discipline and the grounds supporting the form of discipline chosen to the extent that there has been an exercise of discretion on the part of management officials. Furthermore, the employer has a duty to provide the Union with relevant information under the Board’s established approach to information requests.

Importantly, the employer is not required to bargain to agreement or impasse before the imposition of discipline. Instead, the duty to bargain continues after the imposition of discipline if the parties are unable to reach an agreement before the imposition of sanctions. Moreover, the employer need not bargain over the imposition of discipline that is consistent with its past practices. Finally, the Board held that an employer may act unilaterally in any situation that presents an “exigent circumstance.” The Board defined an exigent circumstance as any situation where an employer has a reasonable and good-faith belief that an employee’s continued presence on the job presents a serious, imminent danger to the employer’s personnel or business.

As mentioned above, as was the case with its recent decision in WKYC-TV, 359 NLRB No. 30 (2012), the Board held that this new interpretation will be applied prospectively only.

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A recent spate of strikes could be a sign of things to come in 2013, according to several leading labor experts. Thomas Kochan, co-director of the Sloan Institute for Work and Employment Research at MIT, explained to NPR this week that declining job satisfaction and pent-up frustrations are causing workers to hit a boiling point and that "more of those pressures [will] explode" since many workers aren't feeling relief in the economic recovery:

"If you look at the national data, you see a decline in job satisfaction and you see tremendous frustration, particularly among younger workers who recognize they can't get the kinds of jobs they've been educated for, that they can't support their families or earn the kinds of incomes that their parents earned at comparable stages in life," he says.

Union leaders express the hope that successful strikes will influence other workers to strike, since employees across industries watch the outcomes closely. In the same NPR piece, Craig Merrilees, spokesman for the International Longshore and Warehouse Union, called the recent Wal-mart strikes "an inspiration" to striking port workers in Los Angeles and Long Beach.

Still most commentators agree that the struggling economy makes striking a risky proposition. "In tough times, unions are not going to win; it's all about cutting their losses," explains Julius Getman, a labor scholar and law professor at the University of Texas at Austin in a recent interview.

At least one commentator sees the outcomes of the recent high profile strikes as more prescient than the occurrence of the strikes. In the Dallas Morning News, Mitchell Schnurman suggests that recent strike outcomes reflect a new reality for unions. He cites small gains by the unions in the recent NFL and Lockheed Martin strikes, and the cautionary tale of the Hostess strike that resulted in the liquidation of the company. This new reality, Schnurman explains, will require union leaders to redefine success in a way that takes the tough economic realities into account in order to effectively represent their members into 2013 and beyond.

Additional Resources and Commentary:

• "Further Port Strife Looms" -- Wall Street Journal
• "Fast Food Labor Strikes: What Will Happen If Workers Have It Their Way" -- Daily Finance
• "Looming Strike Spurs Supply Chain Angst" -- CFO
   

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In the wake of a crippling strike by the Bakery, Confectionery, Tobacco Workers and Grain Millers International Union (BCTGM) that began on November 9, 2012, Texas-based bread and snack maker, Hostess, petitioned last week for court approval of a liquidation plan to cease its operations. U.S. Bankruptcy Judge Robert Drain initially ordered the parties into mediation in a last-minute attempt to save the company, expressing a "belief that there is a possibility to resolve this matter" and citing "serious questions as to the logic behind the decision" to strike. Both parties agreed to mediation under Drain's supervision and closed-door talks took place on Tuesday, November 20, 2012.

Negotiations broke down, however, as the parties were unable to reach an agreement. Judge Drain rejected U.S. Trustee Tracy Hope Davis' request to convert Hostess' filing from a Chapter 11 to a Chapter 7 bankruptcy, which would have given the trustee control of the liquidation, including sales of Hostess' assets. Stating such a conversion would be, "a disaster," Judge Drain instead granted interim approval of Hostess' liquidation plan. Final approval is scheduled for consideration on November 29, 2012.

The interim approval resulted in the termination of approximately 15,000 Hostess employees on the day before Thanksgiving. Hostess will continue to employ about 3,200 employees on a temporary basis to assist in winding down the company's operations. In addition to allowing temporary retention of employees for the wind-down, the plan also provides for: (1) the return of excess packaging and ingredients, (2) going-out-of-business sales at Hostess retail outlets, (3) an amended financing agreement, and (4) the use of cash collateral.

One former employee, Mark Popovich, has filed suit against Hostess alleging that his termination without 60 days advance notice violated the U.S. Worker Adjustment and Retraining Notification Act, known as the WARN Act. He is seeking to represent all Hostess workers for unpaid wages, vacation pay and benefits for 60 days.

Hostess is best known as the maker of Wonder bread and for its snacks such as Twinkie, Ding-Dongs and HoHos. Competition to purchase the iconic brands is expected to be intense with Pabst Blue Ribbon and Hostess rival, Flowers Bakery, among companies expressing interest in acquiring certain Hostess assets.

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Hostess, the nation’s second largest bread maker, announced today that it was shutting down operations and selling its assets after being unable to ward off a strike by employees represented by the Bakery, Confectionary, Tobacco Workers and Grain Millers International Union (BCTGM). In an issued statement, CEO Gregory Rayburn explained:

"We deeply regret the necessity of today's decision, but we do not have the financial resources to weather an extended nationwide strike.”

Hostess had entered into bankruptcy in January. As a result the closing, nearly 18,500 employees will lose their jobs and 33 bakeries, 565 distribution centers, and 570 outlet stores throughout the United States will be closed. Hostess had warned BCTGM that a strike would be fatal to the company’s viability, however, BCTGM struck anyways. Interestingly, the unions representing various groups of Hostess employees were not unified in their opposition to compromise. The Teamsters, Hostess’s largest union, had reached a deal with Hostess governing the employees it represented and criticized BCTGM’s refusal to do the same. It issued a statement which read in part:

“The BCTGM chose a different path, as is their prerogative, to not substantively look for a solution or engage in the process . . . . BCTGM members were told there were better solutions than the final offer, although Judge Drain stated in his decision in bankruptcy court that no such solutions exist.”

BCTGM rejected a proposal from Hostess that would have cut salaries across the company by 8% in the first year of the five-year agreement.  However, salaries would then have bumped up 3% in the next three years and 1% in the final year. Hostess also had also attempted to reduce its pension obligations and its contribution to the employees' health care plan in exchange for other concessions, including a 25% equity stake for workers in the company and the inclusion of two union representatives on an eight-member board of directors.

More resources and commentary:

• "Why Didn't Hostess Workers Believe The Threats?" -- Washington Post
• "Hostess Brands Moves To Wind Down Operations" -- New York Times
• "18,500 Workers Out Of Jobs As Hostess Shuts Down" -- Business Insider
• "Time to Mourn: Watch Sixteen Vintage Hostess Commercials" -- Grub Street
• "Petition Wants Obama To Save Twinkies" -- Politico

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2011 was the most dynamic year in labor law in quite some time.  Fueling many of the changes last year were the impending departures of National Labor Relations Board Chairman Wilma Liebman and Member Craig Becker. With no certainty as to when Liebman or Becker might be properly replaced, the Board acted aggressively while it still held a pro-labor majority and a quorum. In addition to the Board’s activity, the Acting General Counsel pursued an expansive agenda. In response to these efforts, Republican opposition in Congress attempted to rein the Board in via additional oversight and legislative efforts that failed to gain much traction.

The labor attorneys here at Labor Relations Today have been following these significant developments every step of the way.  Today we are publishing "Labor Law in 2011: A Very Active Year in Review."  This brief summary highlights some of the most noteworthy developments in 2011.  We hope you find it a helpful resource as we head into what is already shaping up to be another "very active year." 

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Earlier this year, food service and logistics giant Sodexo USA filed a civil lawsuit against the Service Employees International Union (SEIU) alleging Racketeering Influenced and Corrupt Organizations (RICO) Act violations in connection with the union's corporate campaign against the company.  In the course of that litigation, copies of the SEIU's "Contract Campaign Manual" recently became "officially" available to the general public. 

Monday, Sen. Orrin Hatch (R-UT), sent a letter to current National Labor Relations Board Member Craig Becker about his role in developing the tactics set forth in the Manual, while Becker served as Associate General Counsel to the union.

Specifically, Sen. Hatch asked Member Becker:

• What role, if any, did you play in the drafting or approval of the manual?

• Have you ever advised any client to engage in the questionable tactics outlined in the manual, including tactics specifically designed to personally embarrass or intimidate employers or managers, jeopardize employer relationships with customers and vendors, and purposefully disrupt production in the workplace?

• Have you ever advised any client that it is permissible to break the law in the course of an organizing or contract campaign?

• In your view, are the campaign tactics detailed in the SEIU manual appropriate actions for union members to take in the midst of organizing campaigns or contract negotiations?

Member Becker's nomination was the subject of much controversy and he was not confirmed by the Senate. President Obama subsequently recess appointed him to his post in March 2010, and he will serve until the end of this year. At a time when there has been no shortage to begin with,  this development certainly exposes the Board to even more political pressure.

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The NFL celebrated the settlement of its ugly off-season labor dispute with the opening of training camps today and a frantic rush of news about imminent player transactions.  Elsewhere in the major American sports universe, the L.A. Times reported that the "NBA's lockout of its players continued Tuesday with no progress in sight."  From the article about the league's prospects for labor peace:

"If there's one thing us labor lawyers know -- and the public will see in this [NBA] case -- there's nothing like the prospect of deadlines, in this case, missing games, that forces action," said Seth Borden, a partner in employment and labor law for the Washington, D.C.-based firm McKenna Long and Aldridge.

The NBA regular season isn't scheduled to begin until Nov. 1, so expect a slow summer.

Representatives from both sides -- but not NBA Commissioner David Stern or union head Billy Hunter – are to meet soon for their annually scheduled discussion about the past season's audited financial reports for all 30 teams. The next labor negotiating session is likely to take place in early August.

That too may be another differentiating factor between the NFL's and NBA's disputes.  In the NFL negotiations, the players repeatedly expressed distrust and frustration insofar as the NFL refused to share extensive financial information during collective bargaining negotiations.  Generally speaking, labor law does not require an employer to "open the books" unless the employer attempts to justify its bargaining positions by claiming inability to pay.  That refusal certainly seemed to exacerbate the lack of trust between the parties in the NFL negotiations -- which may have undermined their efforts to reach agreements earlier on.  In the NBA dispute, the league's owners have expressly claimed financial losses force them to pursue concessions.  Accordingly, they appear to be in the process of sharing financial data with the NBPA -- the players' union.

Still, as I mentioned in the piece above, it looks right now like it will be an even longer, more frustrating off-season for NBA fans hoping to celebrate the end of a lockout, like NFL fans everywhere are doing today.

More information and resources:

• "What the NFL Labor Dispute Means for the NBA Lockout" -- Huffington Post
• "Challenge in NBA Lockout is Owners, Players Infighting" -- MSNBC / ProBasketballTalk
• "Resolution of NFL Lockout Bodes Poorly for NBA Players in Their Labor Battle" -- Forbes

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On June 21, 2011, the Department of Labor’s Office of Labor-Management Standards (OLMS) will publish proposed revisions to its interpretation of the Labor-Management Report and Disclosure Act of 1959 (LMRDA), which will expand greatly what employers and their labor relations consultants must report to the Department of Labor.

The LMRDA was enacted by Congress in 1959 for the purpose of shedding light on labor-management relations, governance, and management. Its provisions include financial reporting and disclosure requirements for labor organizations, their officers and employees, employers, labor relations consultants, and surety companies. Section 203(a) and (b) of the LMRDA require employers and their labor relations consultants to report any agreement or arrangement between them where the consultant will undertake activities, directly or indirectly, to persuade employees to exercise or not to exercise their right to organize and bargain collectively.

However, Section 203(c) exempts from these reporting requirements “the services of such [consultant] by reason of his giving or agreeing to give advice to such employer…” Section 204 also exempts certain attorney-client communications from reporting, which is defined as, “ information which was lawfully communicated to [an]…attorney by any of his clients in the course of a legitimate attorney-client relationship.”

At issue under the DOL’s proposed revisions are its interpretation of the term “advice” in Section 203(c). With exception of a brief period in 2001, since 1962 the DOL has interpreted "advice" to exclude an employer-consultant agreement where the consultant has no direct contact with employees and limits his activity to providing the employer and its management team with advice or materials for use in persuading employees that the employer has the right to accept or reject.

In the DOL's proposed revisions, the application of the “advice” exemption under Section 203(c) depends on whether an activity can be considered giving “advice,” meaning an oral or written recommendation regarding a decision or a course of conduct, as opposed to engaging in direct or indirect persuasion of employees. Specifically, the proposed revised interpretation will state:

With respect to persuader agreements or arrangements, “advice" means on oral or written recommendation regarding a decision or a course of conduct. In contrast to advice, “persuader activity” refers to a consultant’s providing material or communications to, or engaging in other actions, conduct, or communications on behalf of an employer that, in whole or in part, have the object directly or indirectly to persuade employees concerning their rights to organize or bargain collectively. Reporting is thus required in any case in which the agreement or arrangement, in whole or in part, calls for the consultant to engage in persuader activities, regardless of whether or not advice is also given.

According the DOL's notice, under this revised interpretation reportable agreements will include those in which a consultant agrees to plan or orchestrate a campaign for an employer to avoid or counter union organizing. It will also include any planning, directing, or coordinating of the activities of management and supervisors or the providing of persuader material to them for dissemination or distribution to employees. Moreover, drafting or implementing policies for the employer designed to directly or indirectly persuade employees will also trigger a reporting obligation. 

The proposed revisions to the regulations and forms would combine to impose extensive and sweeping new reporting obligations on employers who would utilize the expertise of outside consultants, attorneys or other professionals when addressing labor relations issues.  If the “advice exception” is indeed narrowed as proposed in the document being posted tomorrow, employers will need to report the details of these third-party relationships regardless of whether the third-parties have any contact with employees.  Employers may choose to address labor relations issues by themselves, instead of engaging experienced outsiders to assist and risking additional extensive reporting obligations.  Likewise, outside professionals may turn their talents and experience to other pursuits, rather than assuming the risk of the extensive additional disclosure.

The DOL is requesting comments to its proposed revised interpretations, which will be due 60 days after publication.  Employers would be wise to revisit any existing relationships that might fall within the broad scope of the proposed rule, assess its potential impact and to consider submitting comment.

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Liz Mullen of the Sports Business Journal (subscription) is reporting today that Region 2 of the National Labor Relations Board has sent the unfair labor practice charge filed against the NFLPA by the NFL to the Division of Advice in Washington, D.C. 

Back in February, the NFL owners filed the charge (subsequently amended) against the NFLPA, alleging that the union had failed to bargain in good faith with the league in violation of Section 8(b)(3) of the National Labor Relations Act.   The text of the charge, filed at the Regional Office in New York City, accused the union of engaging in unlawful "surface bargaining and an anticipatory refusal to bargain."  The charge described the alleged misconduct to include failure to schedule sessions, failure to respond to management proposals in a timely and meaningful manner, insisting upon the disclosure of financial data as a condition to negotiations, and additional conduct  indicating a lack of "intent to reach agreement through good faith collective bargaining.  Finally, the charge spelled out the heart of the NFL's concern -- the NFLPA's strategy of coordinating a decertification in order to obtain a strategic advantage in their negotiations -- which is now also at the heart of the antitrust litigation playing out in the Court of Appeals for the Eighth Circuit.

The Region's referral to the Division of Advice is not terribly unique, especially given the stakes involved here.  The Division of Advice, under the auspices of the Office of the General Counsel in Washington, D.C., consists of three branches: The Regional Advice Branch, the Injunction Litigation Branch, and the Legal Research & Policy Planning Branch.  This matter is obviously now before the Regional Advice Branch which will research, analyze and provide "advice" to the General Counsel and the Regional Office with respect to whether the charge is worth pursuing.  Following this review -- perhaps a few weeks or months hence -- the Division will likely issue an Advice Memorandum to the Regional Director recommending either issuance of a complaint or dismissal of the charge absent withdrawal. 

As a practical matter, in the instant dispute between the NFL and the NFLPA, this is not likely to have much impact.  We are likely to see an Eighth Circuit decision in the court litigation before we see the results of this review by Advice.  It certainly does not hurt the owners' position in ongoing negotiations in that the PR of an outright dismissal by the Regional Office might have had an impact on their leverage.  And, to some extent, the NLRB's referral to Advice does undermine the certainty of District Court Judge Susan Nelson's conclusions about what the Board was likely to do when she granted the players an injunction against the owners' lockout back in late April.  But this fairly routine decision by the Regional Office certainly did not shift any significant leverage toward one side or the other in this ongoing legal battle.

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In a decision issued on March 31, 2011, National Labor Relations Board Chairman Wilma Liebman suggested that she would like the Board to require employers to provide information about relocation decisions to unions in a broader range of cases.  In Embarq Corp., 356 NLRB No. 125 (March 31, 2011), the Board unanimously concluded that the employer was not required to negotiate with a union over its decision to close a call center in Las Vegas and relocate the work to a call center in Florida. 

In deciding whether an employer's relocation decision is a mandatory subject of bargaining, the Board applies standards set forth in Dubuque Packing Co., 303 NLRB 386 (1991).  The General Counsel must first establish that the decision involves a relocation of unit work "unaccompanied by a basic change in the nature of the employer's operation."  If this prima facie burden is met, there are a number of ways by which the employer may rebut the presumption that it must bargain over the move.  One such way is if the employer can establish:

(1) that labor costs (direct and/or indirect) were not a factor in the decision or (2) that even if labor costs were a factor in the decision, the union could not have offered labor cost concessions that could have changed the employer’s decision to relocate.

In Embarq, the Board concluded that labor costs absolutely were a factor in the employer's decision, but that the employer had proven that "the Union could not have offered labor-cost concessions sufficient to alter the... decision to relocate."  As a result, the employer did not have to bargain over its decision and the related complaint allegations were dismissed.

Chairman Liebman agreed with the conclusion, and noted that because the issue was not a mandatory subject of bargaining, under existing Board law the employer was not obligated to provide the union with information regarding the relocation.  She wrote a separate concurring opinion, however, to highlight her view that:

neither the after-the-fact attempt to assess whether bargaining might have been successful, nor the attempt, years later, to restore the status quo in those cases where the Board finds a bargaining violation, are constructive for any of the parties concerned.

Instead Chairman Liebman would place the initial burden on employers at the time of the decision to justify the decision.  The Chairman would require employers to timely notify unions whether or not a relocation plan turns on labor costs; to explain to the union the basis for any non-labor-cost move; and, to provide information to the union regarding any labor-cost savings.  In the Embarq case, no party asked the Board to revisit any of these issues.  Still, after explaining her thoughts, in concluding her opinion, the Chairman notes:

...in a future case, I would be open to modifying the Dubuque framework in connection with union requests for information.

Unionized employers contemplating a relocation of work any time soon would be well-served to give this concurring opinion careful thought.

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Tonight's expiration of the collective-bargaining agreement between the NFL and the NFL Players Association was forestalled by the mutual agreement of the parties on a 24-hour extension.  Per a statement released this evening:

“Federal Mediation and Conciliation Service Director George Cohen has announced that the NFL and NFL Players Association have agreed to extend the expiration of the CBA for 24 hours and continue negotiating under the direction of Mr. Cohen. The CBA now is scheduled to expire on Friday night at midnight. The agreement by both sides to refrain from comment on the negotiations remains in place.”

The owners will reportedly be back before Director Cohen tomorrow morning without the union's immediate participation.

Earlier in the day, President Obama had this to say about the proceedings:

“You’ve got owners, most of whom are worth close to a billion dollars; you’ve got players who are making millions of  dollars,” said the president, who is a big fan of the Chicago Bears. “My working assumption, at a time when people are having to  cut back, compromise and worry about making the mortgage and, you  know, paying for their kid’s college education, is, is that the two  parties should be able to work it out without the president of the  United States intervening…. "

Football fans will once again tomorrow be glued to the D.C. street corner at 21st & K, looking to see if the folks inside the FMCS building can do just that.

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As mediation meetings broke Thursday evening for a long weekend, chief mediator and Director of the Federal Mediation and Conciliation Service George Cohen issued a statement providing a status update on the negotiations between the NFL and NFLPA.   From that statement:

Our time together has been devoted to establishing an atmosphere conducive to meaningful negotiations and, of course, matters of process and substance. I can report that throughout this extensive period the parties engaged in highly focused, constructive dialogue concerning a host of issues covering both economics and player-related conditions. The tenor of the across-the table discussions reflected a noteworthy level of mutual respect even in the face of strongly held competing positions. The parties met both in full committee and in subcommittees where discrete, technical issues lent themselves to smaller groups.

At bottom, some progress was made, but very strong differences remain on the all-important core issues that separate the parties. Nonetheless, I recommended and the parties have agreed to resume the mediation process in my office commencing next Tuesday (March 1). During the intervening weekend, the parties have been asked by us to assess their current positions on those outstanding issues.

The parties will also both be attending the league's scouting combine in Indianapolis this weekend, which should provide some opportunity for interaction and perhaps even some side conversations.  As I suggested to the Washington Post last week, we should have a sense once those talks resume next week whether the parties believe that, with the mediator's assistance, a deal is within reach -- or, whether a work stoppage is more likely soon after the CBA's March 3rd expiration.

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