Winston & Strawn: Labor News June 2013

Labor & Employment Practice at Winston & Strawn

Select events and news from the world of organized labor for June 2013

Organizing
Strikes & Labor Disputes
Major Contract Settlements & Negotiations
Administrative, Court & Other Decisions
Legislation & Politics
Crime, Corruption & Other Misdeeds
Miscellaneous
Upcoming Events
Recent Publications

Organizing

On June 6 and 7, maintenance and production employees of PCC Structurals Inc., a Portland, Oregon-based metal casting firm, voted against representation by the International Association of Machinists (“IAM”), District Lodge W24. Employees rejected representation by a vote of 1,258 to 932. An IAM representative said that the union is not going to object to the results. Union supporters were motivated by two principal concerns: escalating mandatory overtime and shifting new employees from a defined benefit plan to a 401(k) plan. The company stated that it was “gratified” with the election results and would continue to work with employees to fill customer needs.
Two of the nation’s largest health care unions—Service Employees International Union-United (“SEIU”) Healthcare Workers West and National Union of Healthcare Workers-California Nurses Association (“NUHW-CNA”)—are continuing their fight against one another to represent employees at Kaiser Permanent in Northern California. In June, optical unit employees at Kaiser Permanente rejected representation by the SEIU, voting instead to continue their representation by the NUHW-CNA. In 2010, that same employee group voted to shift representation from the SEIU to the NUHW-CNA. In contrast, in April 2013, some 45,000 Kaiser employees in other units chose to retain the SEIU as their representative, declining to switch to the NUHW-CNA.
Since February 2013, the IAM has been actively seeking to organize some 3,000 workers at Jeld-Wen, an Oregon-based manufacturer of doors, wood products, and millwork. Union supporters claim the company uses too many temporary workers, plays favorites with promotions, fails to maintain a safe workplace, and requires overtime with inadequate notice.

[top]

Strikes & Labor Disputes

On June 6, the National Guestworker Alliance staged demonstrations at McDonald’s restaurants around the world. The organization seeks to reach an agreement with McDonald’s to protect guestworkers from mistreatment generally, and specifically, to protect such workers from retaliation if they complain about working conditions.
On June 12, retail janitors in the Minneapolis/St. Paul area staged a two-day walkout against several companies that employ them to clean retail stores like Target, Kohl’s, and Kmart. The strike was facilitated by the Centro de Trabajadores Unidos en Lucha (the Center for Workers United in Struggle). The organization has been trying to organize janitors in the Minneapolis/St. Paul area for the past three years.
On June 24, American Bottling Company’s warehouse employees in Riverside, California went on strike in a dispute over benefits and work hours. American Bottling is owned by Dr. Pepper Snapple Group. The Riverside facility ships 7-UP and other canned and bottled beverages. American Bottling has been trying to negotiate a new contract with the local Teamsters union that represents workers at the facility. The company has been pushing for employees to pay a larger share of their health insurance costs and to move from a five-day, eight-hour work schedule to a four-day, 10-hour schedule. The company has proposed restarting negotiations on July 8. During the strike, the company is using management workers to keep the facility operating.
On June 25, Teamsters-represented drivers and warehouse workers for RL Lipton Distributing Co., a distributor of Anheuser-Busch products, went on strike at the company’s Austintown, Ohio facility. The parties’ labor contract expired in May 2013, and negotiations for a successor agreement have been unsuccessful to date.

[top]

Major Contract Settlements & Negotiations

According to Human Resources and Skills Development Canada, major labor contracts ratified in March 2013 in Canada included average wage increases of 1.9 percent, an increase from the 1.5 percent average increase in February 2013. The labor contracts included in these figures involved 500 employees or more. In the private sector, average wage increases in March 2013 were 2.3 percent, and average public sector wage increases for the same period were 1.6 percent. Sectors with the largest wage increases included wholesale and retail trade (2.5 percent) and construction (2.3 percent). Sectors were the lowest increases included manufacturing (1.5 percent) and finance and professional services (1.3 percent).
BNA reported that from January 1, 2013 through June 24, first-year compensation increases in new contract settlements averaged 2 percent, compared with 1.7 for the similar timeframe in 2012. Median first-year compensation increases were 2 percent in 2013, the same as the median increase for the comparable period in 2012. The weighted average first-year increase was 1.9 percent in 2013, compared with 2.6 percent for the same period in 2012. Construction industry contract settlements had the highest first-year compensation increases (3.5 percent). Manufacturing also saw above average first-year compensation increases (3 percent).
Members of the Screen Actors Guild and the American Federation of Television and Radio Artists (“SAG-AFTRA”) approved a three-year labor contract covering actors performing in commercials on television, radio, and the internet. The contract provides specific compensation increases for actors performing in internet and new media advertisements. The SAG-AFTRA national board approved electronic voting for the first time for this contract vote, with 97 percent of voters voting electronically.
Communications Workers of America (“CWA”) Local 1298 members approved a new labor contract with AT&T. The four-year contract covers approximately 3,200 wireline employees in Connecticut. The contract provides for 10.5 percent wage increases over the term, with a 5 percent increase in 2013, a 3 percent increase in 2014, and a 2.5 percent increase in 2014. Employees will also receive a $350 ratification bonus. In addition to wage increases, the labor contract provides for continued job security by capping the number of jobs AT&T can move to another state. Finally, the contract provides for an increase in employee health care contributions for health insurance premiums. For existing employees, individual premiums will increase from $35 to $58 per month in 2014, then to $79 and $90 per month in 2015 and 2016, respectively. Family contributions will increase from $75 to $121 in 2014, then to $163 and $195 in 2015 and 2016, respectively.
On June 4, members of the United University Professors union, which represents some 35,000 professors and staff at the State University of New York, approved a new labor agreement retroactive to June 2011. The five-year agreement preserves existing salaries through 2013 and provides 2 percent salary increases in both 2014 and 2015. The agreement also requires that union-represented employees take nine days without pay during the next two years. The workers will be repaid seven days of this lost pay when the contract expires. Finally, the agreement requires employees to increase their health care contributions. Workers that earn less than $40,137 annually will see 2 percent increases for individual and family coverage. Workers that earn more than $40,137 will see 6 percent increases for individual and family coverage.
On June 6, Alaska Airlines reached a tentative agreement with the Air Line Pilots Association over a deal that would cover the airline’s 1,480 pilots. If ratified, the five-year agreement would increase wages, strengthen job security, and improve benefits. The parties are keeping details of the agreement confidential until after the employee vote concludes. Voting started June 14 and continues through mid-July.
United Food and Commercial Workers Local 700 members approved a four-year labor contract with grocery seller Kroger Co., covering approximately 5,800 employees at 61 store locations in Indiana. The new contract, which is retroactive to May 2012, provides $500 to $1000 lump sum ratification bonuses, $0.30 per hour wage increase in 2013, $0.25 per hour wage increase in 2014, and $0.30 per hour wage increase in 2015. The contract further provides that employee contributions for health care coverage will be fixed between $5 and $15 a week starting in 2014.
According to union representatives, Patriot Coal Corp. walked out of bargaining with the United Mine Workers of America and canceled further negotiations slated for the week of June 10. The parties began negotiating after a bankruptcy judge ruled last May that Patriot Coal can alter benefits for existing retirees and cut off health care benefits for current employees. The bankruptcy judge approved certain changes to the employee and retiree benefits in the May ruling. The union will soon vote on whether to accept these approved changes. If the union rejects the changes, the company is expected to unilaterally implement them.
United Steelworkers (“USW”) Local 1343 members in Milwaukee, Wisconsin approved a six-year agreement with Caterpillar Inc. The agreement, which covers some 800 workers, freezes existing wages and suspends the company’s existing defined benefit pension plan. Existing wages range from $18 to $33 per hour, with the average employee earning $28 per hour. With the suspension of the defined benefit pension plan, Caterpillar expects to transition to a 401(k) plan starting in 2014. The agreement also provides for a $2,500 ratification bonus payable in July and a second $1,500 bonus payable in November. The agreement permits Caterpillar to layoff employees for up to 10 weeks per year, but employees subjected to layoffs may receive state unemployment compensation benefits and $170 weekly payments from Caterpillar.
Members of the National Nurses Organizing Committee-Missouri, an affiliate of National Nurses United, ratified their first labor contract with Saint Louis University Hospital since the nurses organized there last year. The three-year contract covers some 600 registered nurses. The contract increases nurse compensation by 3 percent this year, 3 percent in 2014, and 3.5 percent in 2015. In addition, the contract will maintain existing health care coverage and costs, as well as the existing 401(k) plan. Finally, the contract prohibits mandatory overtime, which the nurses’ union claimed led to increased medical mistakes.
On June 20, USW members approved a master labor contract with Packaging Corporation of America. The four-year agreement covers more than 1,900 employees at 25 of the company’s box manufacturing facilities located across the United States. The contract increases wages by 2.5 percent in the first year, 2.5 percent in the second year, 2 percent in the third year, and 2.5 percent in the fourth year. The contract maintains existing health care benefits, under which employees pay no deductibles for in-network care, and in which the maximum out-of-pocket cost for in-network care is $1,000 for individuals and $3,000 for families. Finally, the contract maintains the USW’s neutrality agreement with Packaging Corp., which applies when the union tries to organize non-union company facilities.
Teamsters members rejected a new labor contract with the United Postal Service’s freight division. Based on preliminary numbers, more than two-thirds of members voted against the proposed agreement, which would have covered approximately 13,000 workers. The parties’ current agreement expires July 31. The dissident Teamsters for a Democratic Union stated that union members voted down the agreement because it would have created “a two-tier” compensation system with inadequate wages and benefits for “line haul” division workers.
Los Angeles and San Francisco security guards represented by SEIU-United Service Workers West approved new four-year labor contracts in June. The guards work for several private security companies, including Universal Protection, Securitas, ABM Security, and Allied Barton. The Los Angeles contract provides for $.040 hourly wage increases in July 2013 and February 2014, $0.25 hourly increases in February 2015, and $0.30 hourly increases in 2016. The San Francisco contract increases wages by $1.05 to $1.65 per hour over four years depending on the region of the city where guards work. The Los Angeles contract maintains existing health care benefits, under which workers pay a $1,000 deductible. For workers in one region of the city, employers pay 100 percent of health care costs. For workers in a different region, employers pay 90 percent of costs, but will begin paying 100 percent of costs for these workers in 2016.
International Brotherhood of Teamsters (“IBT”) members approved a five-year master labor contract with ABF Freight Systems Inc., a national freight transporter. IBT members also approved a majority of the regional supplements to the master contract, which must be approved in its entirety before the master contract becomes effective. The new contract will cover approximately 7,500 mechanics, dock workers, and clerical employees. The contract will decrease wages by 7 percent in the first year, but bring them back to pre-contract levels by the final contract year. The contract will also decrease paid leave by slowing the rate at which employees accrue vacation. The parties said these reductions were necessary to help the company reestablish financial soundness. ABF Freight has lost $230 million since 2009. The contract provides that if ABF files for bankruptcy or is acquired, the union negotiating committee may void the wage reductions.

[top]

Administrative, Court & Other Decisions

The U.S. Supreme Court accepted review of a decision by the U.S. Court of Appeals for the District of Columbia holding that the president’s recess appointments to the National Labor Relations Board (“NLRB” or “Board”) were unconstitutional. In its groundbreaking January 25, 2013 decision, the D.C. Circuit in Noel Canning v. NLRB ruled that the President’s January 2012 recess appointments to the NLRB were unconstitutional because the constitution’s Recess Appointments Clause only allows appointments during intersession congressional recesses and only when vacancies arise during an intersession recess. In accepting review of the case, the Supreme Court asked the parties to brief one additional issue: whether the President can make recess appointments when the Senate is convening pro forma sessions every three days, as the Senate was doing when the President made his recess appointments. NLRB v. Noel Canning, Case No. 12-1281.
The U.S. Supreme Court also accepted a petition for certiorari from Unite Here Local 335 to review a decision by the U.S. Court of Appeals for the Eleventh Circuit holding that the union’s neutrality agreement with Mardi Gras Gaming, a dog track company, violated the Labor Management Relations Act (“LMRA”). Under the parties’ neutrality agreement, the company agreed to remain neutral when the union tried to organize its workers and agreed to provide the union with organizing space and a list of employee information. The Eleventh Circuit held that depending on the parties’ intent, such an agreement could violate the LMRA’s prohibition on employers giving or lending anything of value to a labor union. Other circuit courts of appeals have held that similar neutrality agreements do not violate the LMRA. Unite Here Local 355 v. Mulhall, Case No. 12-99.
On June 14, the U.S. Court of Appeals for the Fourth Circuit struck down the NLRB’s proposed rule that would require employers to post notices of employee rights under the National Labor Relations Act (“NLRA” or “Act”). The court held that the NLRA did not give the NLRB authority to issue such a rule. In so holding, the Fourth Circuit joined the U.S. Court of Appeals for the District of Columbia in striking down the NLRB’s notice posting rule. The NLRB argued that it had authority to promulgate the rule because Section 6 of the NLRA provides that the Board may adopt “such rules and regulations as may be necessary to carry out the provisions of the Act.” In rejecting this argument, the Fourth Circuit explained that Section 6 authorizes the Board to adopt rules to carry out specific provisions of the act; Section 6 does not give the Board general rule-making authority. The court further noted that the NLRA envisions the Board as a reactive body, responding to unfair labor practice charges and petitions for representation elections. Finally, the Fourth Circuit observed that other statutes—like Title VII and the Age Discrimination in Employment Act—explicitly provide for an agency to require employees to post notices, but the NLRA does not provide the NLRB with similar authority. Chamber of Commerce v. NLRB, Case No. 12-1757 (4th Cir. June 14, 2013).
On May 30, telecommunications firms CSC Holdings LLC and its subsidiary, Cablevision Systems New York City Corp., filed a petition for a writ of mandamus with the U.S. Court of Appeals for the District of Columbia seeking to block the NLRB from processing unfair labor practice complaints against the companies. In their petition, the companies cited the D.C. Circuit’s Noel Canning decision and argued that because the Board lacks a quorum without the unconstitutional recess appointees, it lacks authority to act, which means the regional directors—acting as the Board’s agents—also lack authority to issue complaints. The companies argued that the D.C. Circuit must stop the NLRB from proceeding with the complaints or the companies will be forced to engage in a costly defense before they can seek review of any adverse rulings in the D.C. Circuit. In re: CSC Holdings LLC, Case No. 13-1191 (D.C. Cir.).
The U.S. Court of Appeals for the Second Circuit held that Connecticut’s former Governor, John Rowland, and former Policy and Management Secretary, Mark Ryan, violated the First Amendment by terminating 2,800 state employees in 2003. The terminations arose after unions representing state workers refused to agree to Connecticut officials’ proposed benefit cuts for state workers. Connecticut officials did not terminate any non-union state employees. Relying on Supreme Court decisions in the political affiliation context, the Second Circuit found that the First Amendment protects employees’ free association right to join trade unions. The court further found that a state may not condition continued public employment on employees’ union affiliation unless the state can justify that condition based on a compelling interest, and can show that it used narrowly tailored means to pursue that interest. The court held that that the Connecticut officials could not demonstrate a compelling interest in terminating only union-affiliated state employees, because benefits for union and non-union employees cost the state the same amount. State Employees Bargaining Agent Coal v. Rowland, Case No. 11-3061 (2d Cir. May 31, 2013).
A NLRB administrative law judge (“ALJ”) ruled that MasTec Services Co., Inc. violated the NLRA by maintaining a policy requiring workers to arbitrate individual employment disputes against their employer. The ALJ acknowledged that MasTec’s policy differed from that found unlawful in the Board’s D.R. Horton decision because MasTec gave employees 30 days to opt-out of the arbitration procedure after they were given the company’s employee handbook containing the policy. But, the ALJ concluded this opt-out provision did not save the policy because he found that employees should not be required to take affirmative steps to preserve their right to act collectively. The ALJ also found that employees may be afraid to opt out of the arbitration policy for fear of retaliation. MasTec Services Co. Inc., NLRB Case No. 16-CA-086102 (June 3, 2013).
Also last month, a different NLRB ALJ ruled that Bloomingdale’s Inc. did not violate the NLRA by enforcing a class action waiver in the company’s arbitration agreement. The ALJ distinguished the NLRB’s decision in D.R. Horton because Bloomingdale’s allowed employees 30 days to opt-out of the arbitration procedure after employees received the policy. In addition to the MasTec decision above, last November, yet another ALJ held that fitness franchise 24 Hour Fitness violated the NLRA by enforcing a class arbitration waiver despite a similar opt-out provision. 24 Hour Fitness is currently on review before the NLRB. Bloomingdale’s Inc., Case No. 31-CA-071281 (June 26, 2013).
The NLRB voided a representation election in which the International Alliance of Theatrical Stage Employees (“IATSE”) Local 720 won by one vote the right to represent stage hands and technicians at the Bellagio Las Vegas hotel and casino. The NLRB found that members of the proposed bargaining unit would have concluded that an IATSE member, Alphonse Torres, spoke on behalf of the union when he threatened a potential voter, saying the voter would be “toast” once the union won recognition. The threatened employee repeated this remark to two other Bellagio employees. Torres did not work for the union, but the Board found that the union gave that impression when it permitted him to attend and speak during an organizing meeting. The Board directed that a rerun election be held. Bellagio LLC, 359 NLRB No. 128 (May 31, 2013).
An ALJ held that the American Red Cross violated the NLRA by maintaining a policy that prohibited workers from disclosing confidential information. The policy defined confidential information to include “personnel” information. The ALJ found that employees could reasonably interpret the provision as restricting discussion of wages and terms and conditions of employment. Even though the policy included a “savings clause,” which stated that the policy did not infringe on employees’ labor law rights, the ALJ concluded employees might not be aware that they had the right to disclose their wages and terms of employment. The ALJ further found that the Red Cross did not violate the NLRA by maintaining a policy prohibiting employees from using the organization’s trademark without permission. While the NLRA protects employees’ rights to use an employer’s trademark when protesting labor conditions, the ALJ found that the Red Cross had not applied the policy to infringe employees’ rights and, based on the context of the provision, employees would not interpret the policy as restricting their NLRA rights. American Red Cross Blood Services, Case No. 08-CA-090132 (June 4, 2013).
The New Mexico Supreme Court ruled that the State Personnel Board, an agency authorized to negotiate and execute labor contracts with unions representing state workers, breached collective bargaining agreements by granting wage increases to 10,000 non-union state workers during a pay freeze. The case arose out of collective bargaining agreements the Personnel Board entered in 2005 with unions representing state workers. These agreements provided for periodic wage increases. In 2008, the legislature allocated money sufficient to pay for the increases slated for 2009. But after then-Governor Bill Richardson instituted a pay freeze, the Personnel Board lowered the contract wage increase to a flat 2.9 percent. The Personnel Board then used some of the money the legislature allocated to pay for the wage increases to provide a similar 2.9 percent wage increase to 10,000 non-union state workers. This action, according to the New Mexico Supreme Court, breached the collective bargaining agreements. As a result of this ruling, the state may be forced to pay wage increases as specified in these collective bargaining agreements to some 20,000 union workers, costing approximately $23 million. New Mexico v. AFSCME Council, Case No. 33792 (N.M. May 30, 2013).
The NLRB ruled that the CWA violated the NLRA by requiring non-union members to object annually in order to avoid being required to pay full union member dues. Under the NLRA, a non-union member may object to paying dues that go towards certain activities—like funding political causes—that are unnecessary for the union to perform its role as the collective bargaining representative for the particular workforce at issue. The NLRB has previously held that a union may only require non-union members to object annually to full payment of dues if the impact of requiring annual objections is negligible or if the union has a legitimate justification for the rule. In this case, the CWA argued that it had a legitimate justification for the rule: it enabled the union to gather information that it could use to evaluate how it was perceived among the workers it represents. In rejecting this justification, the Board found that the CWA never showed that it used this information and that information gathering alone was an insufficient justification. Communications Workers of America, 359 NLRB No. 131 (June 10, 2013).
The U.S. District Court for the Northern District of California denied a motion to dismiss a complaint by the National Union of Healthcare Workers (“NUHW”) alleging that Kaiser Permanente violated Section 302 of the LMRA by fast-tracking approval of union employees’ paid-leave requests to help the incumbent union defeat NUHW’s contest to represent Kaiser’s workers. Under Section 302 of the LMRA, employers are prohibited from making payments to a labor organization. The court held that Kaiser’s accelerated approval of paid-leave requests qualified as an “indirect contribution” to the incumbent union, the Service Employees International Union-United Healthcare Workers (“SEIU-UHW”), because the employees that went on leave focused on campaigning on behalf of the incumbent union. In its motion to dismiss, Kaiser argued that the controversy was moot because SEIU-UHW won the NLRB-supervised representation contest. The court rejected this argument, finding that a similar dispute could reoccur in the future. Nat’l Union of Healthcare Workers v. Kaiser Found. Health Plan Inc., Case No. 10-cv-3686 (N.D. Cal. June 12, 2013).
The U.S. Court of Appeals for the Fifth Circuit refused to enforce an NLRB decision holding that the Independent Electrical Contractors of Houston Inc., a contractor trade association, violated the NLRA by maintaining a job applicant referral arrangement that enabled the association’s members to avoid hiring union “salts.” The Fifth Circuit held that the Board’s decision violated the association’s due process rights. The case arose when the International Brotherhood of Electrical Workers (“IBEW”) Local 716 filed unfair labor practice charges against the association. The IBEW Local 716 had initiated a “salting” campaign against the organization’s members, whereby union members could apply to work for non-union contractors with the aim of organizing the contractors’ employees. The association maintained several referral practices that limited the likelihood its members would hire union salts, including failing to keep records of which job applications the association submitted to its members, the association’s refusal to tell applicants whether members had received their applications, and a “selectively-imposed $50 fee for additional [job] applications.” The NLRB General Counsel’s complaint alleged that the association’s practices violated Section 8(a)(3) of the NLRA, and derivatively violated Section 8(a)(1). An ALJ agreed. On review, the Board held that the referral arrangement violated Section 8(a)(1) only. The Fifth Circuit held that because the NLRB General Counsel’s complaint did not include an independent Section 8(a)(1) violation, the Board’s ruling violated the association’s due process rights. Independent Elec. Contractors of Houston Inc. v. NLRB, Case No. 10-60822 (5th Cir. June 17, 2013).
The National Mediation Board declined to postpone an election contest initiated by the IBT to oust incumbent unions at American Airlines and US Airways until the two companies complete their merger. The IBT is seeking to represent mechanics at US Airways and American Airlines, which are currently represented by the IAM and the Transport Workers of America, respectively. In approving the IBT’s petition for an election at US Airways, the Board found that it lacked precedent to postpone the election contest until the two airlines merged. The Board further found that under its enabling statute, the Railway Labor Act, the Board must resolve representation contests “as expeditiously as possible.” The IAM and TWA currently have an agreement to jointly represent workers once the airlines merge. In re: US Airways, 40 N.M.B. No. 60 (June 6, 2013).
The NLRB held that Weyerhaeuser Co., a pulp and paper manufacturer, violated the NLRA by issuing a notice at its Washington state facility warning that union representatives were spending too much time working on union-related email during working hours. The Board found that the notice was “facially discriminatory” because it singled out union representatives and union business. The Board also observed that Weyerhaeuser issued the rule in response to union-related email activity. The Board further held that Weyerhaeuser violated the NLRA by disciplining an employee based on the notice. However, the Board held that the company did not violate the NLRA by maintaining a general policy restricting employees from using electronic media for personal use. Weyerhaeuser Co., 359 NLRB No. 138 (June 20, 2013).
The NLRB ruled that Pacific Crane Maintenance Co. and Pacific Marine Maintenance, two companies that repair and maintain marine terminals, acted as a single employer and violated the NLRA by shifting work from a bargaining unit represented by the IAM to a bargaining unit represented by the International Longshore and Warehouse Union (“ILWU”). The Board found that the two companies, who stipulated that they were a single employer, engaged in a series of transactions to decrease labor costs. In particular, Pacific Marine laid off IAM-represented workers to accommodate demands from its shipping client, Maersk Inc. When conducting layoffs, Pacific Marine instructed the workers to apply for work with Pacific Crane. Pacific Crane then hired most of the laid-off workers contingent on the workers becoming employed by an already composed ILWU bargaining unit, which had lower labor costs. The IAM asked to bargain with Pacific Marine about this work transfer, but Pacific Marine agreed only to bargain about the effects of the transfer, and declined to provide information that the IAM requested. In performing these transactions, the Board found that the single employer unlawfully refused to bargain with the IAM, unilaterally changed employment terms for IAM workers, and improperly recognized the ILWU as the bargaining agent for the former IAM workers. The Board ordered the companies to offer to reinstate the workers, recognize the IAM as the workers’ representative, withdraw recognition from the ILWU, and compensate the workers’ benefit funds for any losses. PCMC/Pac. Crane Maint., 359 NLRB No. 136 (June 24, 2013).

[top]

Legislation & Politics

On May 29, Republican House of Representative Members John Kline and Phil Roe sent a letter to the Department of Labor to oppose a proposed regulation that could require law firms engaged in certain labor relations activities to file reports under the Labor Management Reporting and Disclosure Act (“LMRDA”). Under the LMRDA, labor relations consultants that engage in “persuader” activities—such as representing a company in opposing a union organizing campaign—must file with the Department of Labor detailed financial statements and disclosures about their activities on behalf of the companies that hire them. The LMRDA includes an exception to this rule for anyone that provides labor relations “advice” to a company. For the past 50 years, the Labor Department has interpreted this “advice” exception to apply to law firms’ labor relations activities, provided law firms do not directly communicate with employees. But in June 2011, the Labor Department proposed revising the “advice” exception to require firms to file reports even if they do not communicate directly with employees. The proposed rule change generated 9,000 public comments, with businesses uniformly opposing the rule. In their letter, Representatives Kline and Roe told the Acting Labor Secretary, Seth Harris, that the Representatives have concerns about the regulatory burdens the rule would impose and the potential for the rule to impact the confidentiality of the attorney-client relationship. The Representatives asked the Acting Secretary to provide them with “all documents and communications” related to the regulatory burden of the proposed rule.
The House of Representatives voted down an amendment that would have prohibited using federal money to “implement, administer, or enforce” the prevailing wage rules in the Davis-Bacon Act. Under the Davis-Bacon Act, businesses performing construction work on a government contract must pay a local prevailing wage to workers. Democrats united in opposing the amendment and 36 Republicans broke ranks and joined the Democrats in voting against the amendment. The AFL-CIO’s Building and Construction Trades Department applauded the House’s rejection of the amendment.
Republican House of Representatives members introduced a pair of bills on June 13 to amend the NLRA. The first bill is entitled the Secret Ballot Protection Act and would ensure that workers have the right to participate in secret-ballot elections to decide whether to be represented by a union. The second bill is entitled the Representation Fairness Act and would reverse the impact of the NLRB’s Specialty Healthcare decision, which authorized narrowly defined bargaining units often called “micro-units.” Democratic spokesperson Aaron Albright denounced the legislation as anti-union and said the bills have no chance of passing.
Several advocacy groups have placed advertisements in Capital Hill-area publications to urge the Senate to confirm the President’s five NLRB nominations. The advocacy groups include the National Gay and Lesbian Task Force, the NAACP, and the Sierra Club. The advertisements assert that a fully functioning NLRB is necessary to protect minority workers and the environment. Unless the President’s nominations are confirmed, the Board will lack a quorum when Chairman Mark Gaston Peace’s term expires August 27, 2013. The groups placed advertisements in such publications as Politico, Roll Call, and The Hill.

[top]

Crime, Corruption & Other Misdeeds

On June 13, government prosecutors indicted a former trustee and business agent for the Detroit local union of the IBT. The indictment asserts that the former union official, Michael Townsend, accepted money from Lagrasso Brothers Produce Inc. to make it falsely appear that the company had a unionized workforce. In particular, the indictment claims that Townsend executed sham labor contracts with a front company for Lagrasso Brothers Produce, and had Lagrasso management and family members join the local Teamsters union as well as sign labor contracts on behalf of the front company. In January 2013, the front company accepted a plea deal with the government and agreed to help the government prosecute other responsible parties. If convicted, Townsend could spend up to five years in prison and face a fine of up to $250,000.

[top]

Miscellaneous

According to a June 2013 survey by the Pew Research Center for the People & the Press, 51 percent of Americans hold a favorable view of labor unions. This represents a 10 percent increase in the favorability rating of labor unions since the same survey was taken in 2011. The survey also found that 55 percent of Americans hold a favorable view of corporations, a 17 percent increase from the 2011 survey. To gather these results, Pew surveyed 1,512 Americans age 18 and older. Pew has been conducting similar surveys since 1985. For the first time since 2007, a majority of Americans surveyed reported holding a favorable view of labor unions and corporations. With the exception of Americans that identified as “conservative Republicans” or “liberal Democrats,” favorability of unions and corporations rose across the political spectrum.

[top]

Upcoming Events

July 18, 2013
Wage and Hour Strategies
eLunch
August 15, 2013
Health Care Reform – Update and Developments
eLunch
September 19, 2013
Wage and Hour Litigation Practical Guidance
eLunch

[top]

Recent Publications

U.S. Supreme Court Holds That “But-For” Standard of Causation Applies to Retaliation Claims Brought Under Title VII
Briefing
U.S. Supreme Court Reaffirms that Strict Scrutiny Applies to Race-Based University Admissions Decisions
Briefing
U.S. Supreme Court Adopts Narrow Definition of Title VII “Supervisor”
Briefing
U.S. Supreme Court Issues Key Ruling on Arbitration Clauses that Waive Class Treatment
Briefing
Minnesota Joins Movement to Limit Private Employer’s Criminal History Inquiries in Application Process
Briefing
U.S. Supreme Court Rules Arbitration Decision Allowing Class Procedures Did Not Violate Federal Arbitration Act
Briefing
U.S. Supreme Court Holds that FEGLIA Preempts State Laws Purporting to Change Designated Life Insurance Beneficiary
Briefing

Attorney Advertising Materials

These materials have been prepared by Winston & Strawn LLP for informational purposes only and are not legal advice. Receipt of this information does not create an attorney-client relationship. No reproduction or redistribution without written permission of Winston & Strawn LLP.

Along with this briefing, a library of all the Winston & Strawn LLP briefings published to date can be accessed by visiting the Publications Library section of Winston & Strawn’s Web site (www.winston.com).

WINSTON & STRAWN CONTACTS

Update your contact preferences here.