Beware of NLRB Nominee Becker, Chamber of Commerce says. – The Senate has begun its four-week recess without taking any action on President Obama’s three nominations for the NLRB. The Democrat nominees are Craig Becker, associate general counsel for the SEIU, and Mark Pearce, who represents unions in private practice. The Republican nominee is Brian E. Hayes, a labor policy director for the Senate Health Education, Labor and Pension Committee. If confirmed, these nominees will join Democrat Board Chair Wilma Liebman and Republican Member Peter Schaumber on the Board.
Regardless of their respective political party affiliations, the newly constituted NLRB will be decidedly more pro-union, and significant changes in Board law and policy are anticipated. Although the senior Republican member of the Senate committee has called for a hearing on all three nominees, such hearings have historically been rare and are considered unlikely now.
Union must give hospital 10 days’ notice of workers’ refusal to work voluntary overtime. – Under Section 8(g) of the National Labor Relations Act, a union must give a health care institution 10 days’ written notice of any strike, picketing, or “other concerted refusal to work,” as well as the date and time that such action will begin. Housekeepers and linen aides at California Pacific Medical Center had a labor agreement providing that the Medical Center could not require overtime unless there was an emergency. Accordingly, the Medical Center normally asked for volunteers. The employees’ union was the Service Employees International Union, United Healthcare Workers-West.
After the Medical Center proposed a change in linen processing that the union believed would violate the contract’s prohibition on subcontracting, a majority of employees in the unit signed a petition protesting the proposal and authorized their shop stewards to designate one-week periods in which the employees would refuse to volunteer for overtime or extra shifts. The petition was presented to management with only four days’ notice, and, for seven days, every employee who was asked to work overtime declined to do so. A union newsletter published the same week said that the refusal was intended as a protest of the proposed subcontracting and to expose alleged short staffing.
The Medical Center filed an unfair labor practice charge, and an administrative law judge found that the union violated Section 8(g) by failing to provide the full 10-day notice of its concerted refusal to work overtime. The NLRB (then-Chair Battista and then-Member Kirsanow) agreed because the union had orchestrated the refusals to work overtime as a means to pressure the hospital to withdraw its proposal. Then-Member (now Chair) Liebman dissented, arguing that an employee’s refusal to work overtime should be considered a “concerted refusal to work” under Section 8(g) only when the overtime is mandatory.
In a decision issued August 3, 2009, the U.S. Court of Appeals for the Ninth Circuit agreed with the Board and the Medical Center. Speaking for the court, Judge Mary M. Schroeder wrote that the 10-day notice requirement “was intended to prevent disruption of patient care by giving hospitals time to plan ahead for strikes, pickets, or other work stoppages.” The union contended that because the hospital had agreed that each employee could decline to work overtime on a individual basis, the union could direct its members to decline to perform work on a collective basis, without engaging in a concerted refusal to work within the meaning of Section 8(g). In response, Schroeder said that there would not have been a “concerted” refusal if the employees had independently refused to volunteer for overtime. However, “[i]n this case, the Union itself called for the overtime work stoppage” and therefore the refusal to volunteer for overtime was “concerted” and implicated Section 8(g).
D.C. Circuit nixes employer-friendly NLRB ruling on non-work solicitations. – Calling it a “post hoc invention,” the U.S. Court of Appeals for the District of Columbia Circuit has overruled part of the NLRB’s Register-Guard decision, which approved an employer’s ban on all non-work-related solicitations. The NLRB had found that the company’s policy was consistent with Board and court precedent governing employee use of employer-owned equipment, such as bulletin boards and telephones. Although the company had previously allowed non-work-related solicitations by individuals, the Board found that the company could lawfully ban solicitations by a union president on behalf of the union because the latter communications were made on behalf of an organization rather than an individual.
The D.C. Circuit, in Guard Publishing Co., d/b/a Register-Guard v. NLRB, disagreed. Judge Merrick Garland, writing for the court, noted that the policy itself did not distinguish between “group” and “individual” solicitations. Moreover, he noted, a warning to the union president said that he could not use company systems “for union/personal business,” thus “making it clear that the offense did not depend on whether an organization was involved.” Finally, he noted that the company had never invoked the distinction between groups and individuals before the unfair labor practice complaint was filed.
It is important to note that the union did not ask the court to address the Board’s ruling on the legality of maintaining such a policy, apparently believing that the NLRB under the Bush Administration and the D.C. Circuit were unlikely to find in its favor on that issue. However, it is very likely that the Board will revisit this issue in the future and reach a different decision as President Obama’s nominees join the Board.
“Full capacity” language in contract comes back to bite steel company. – AK Steel Corporation of Ashland, Kentucky, was a major supplier to General Motors Corporation and Chrysler Corporation. Devastating cutbacks by both automobile manufacturers, as well as the continuing global recession, rippled to AK Steel, which sought to shut down the Ashland plant for the last half of 2009 and lay off 750 employees. The United Steelworkers Union said “no,” filed a grievance, took the issue to arbitration, and won.
The Company agrees that no plant covered by this Agreement will operate its facilities at other than full capacity, except during maintenance and repair outages . . . . The Company further agrees that its recent capital improvement at Ashland as well as the other commitments contained herein are designed to make the facility competitive. In the event that the Company has a need to supplement the plant’s product from a source outside of Ashland, the parties will meet to discuss such needs and duration.
The union argued that the company must keep its promise even if, in its judgment and in light of subsequent events, keeping the promise may be inefficient, uneconomical, impractical, inconvenient or not preferable.
The company argued that the Reserved Rights Doctrine applied, and that no provision in the labor agreement restricted its right to idle the Ashland operation when customer demand plummeted because of a severe economic downturn or when customer demands could not sustain the plant’s operations.
In ruling for the Steelworkers, the arbitrator found that the company had made an “explicit promise” to operate the plant at full capacity so long as there was customer demand for products made there and that the contract precluded the company from supplementing production from other plants owned and operated by the company unless Ashland was operating at full capacity. Steelworkers President Leo Gerard warned employers that the union would continue to enforce its contractual protections, no matter what market conditions are or how difficult economic times become.
NYC Carpenters Union leaders are nailed for bribery scheme that cheated union members. – The head of the New York City Carpenters Union has been hammered with 29 counts of racketeering tied to an alleged $1 million bribery scheme that, among other things, caused union members to be deprived of their wages and benefits. The alleged scheme allowed contractors to pay union members in cash at below-union rates and without benefits; employ undocumented and non-union workers; and avoid payment to the union benefit funds in violation of collective bargaining agreements. Seven other union officials, a benefit fund trustee, and a contractor have also been charged.
Walmart Canada seeks to stop union’s “look-alike” anti-Walmart website. – As unions increase their use of the internet for organizing, Walmart Canada Corporation has struck back. Walmart has filed for an injunction against a website of the United Food and Commercial Workers Canada that is aimed at communicating with Walmart employees. Walmart says that the website violates trademark law through the use of phrases and images resembling those used by the company. A Walmart spokesperson said, “If they want to lobby or try to organize our associates, they need to be clear that they’re the UFCW . . . . Don’t use our brand name to do it!” Walmart’s application to the Quebec Superior Court seeks an order forcing the union to take down the website and a permanent injunction against the Union’s use of the words Walmart or Wal-Mart, color schemes used by Walmart Canada, expressions that represent altered forms of Walmart’s slogan and trademark, oral, circular, or semi-circular designs resembling those used by Walmart, or any acts that depreciate the value of Walmart’s registered trademarks.
Walmart’s effort to enjoin the website is not without legal precedent. A 2004 British Columbia Supreme Court ruling confirmed that the use of a trademark in a domain name not held by the trademark holder creates confusion by misrepresenting that the site is associated with the trademark holder.
UNITE HERE/Workers United “divorce” draws employer into criminal court. – In Constangy’s last Executive Labor Summary, we reported on an employer who was caught in a bargaining dispute because of the split between UNITE and HERE (“Am I here or at Dad’s this weekend?”). Now, Aramark Corporation, another “innocent bystander” employer, faces felony criminal charges as a result of the split between UNITE HERE and Workers United. Workers United contends that Aramark, which withholds employees’ union dues from their paychecks, is guilty of theft because it has not paid the dues to Workers United. The charges appear to be meritless at best, given that an Aramark spokesperson says that the company is remaining “firmly neutral in the dispute” between the two unions, is continuing to honor all collective bargaining agreements, and is holding the union dues in an escrow account for the disputed locations. Aramark says it will turn the money over to the union that lawfully represents the workers and is looking to the NLRB for clarification.
Workers United claims to represent more than 7,500 Aramark employees at its laundries and food service operations. Since June 2009, regional offices of the NLRB have dismissed 10 employer petitions for elections to resolve whether UNITE HERE or Workers United represents employees for bargaining purposes.
Just when you thought it was safe to fly again... – In a related dispute, Workers United has filed a petition with the NLRB seeking an election to determine whether Workers United or UNITE HERE represents 2,100 workers employed at 15 airports across the United States. Workers United claims that a new collective bargaining agreement between the employer and UNITE HERE, and recently ratified by UNITE HERE members, was a “backroom deal” that provides no improvements in wages or health care benefits. Workers United also contends that an elected contract bargaining committee or workers should have been included in the bargaining process.