INK: December 16, 2010

by | Dec 16, 2010 | Labor Relations Ink

inkquill22 Labor Relations INK   In this issue:

  • EFCA Update
  • LRI’s Labor Predictions for 2011
  • CNA-NNU Marching Stron
  • Only In A Union, Scoreboard, Sticky Fingers and more…

EFCA Update The aggressive NLRB continues to forcefully tilt the field in favor of its Big Labor patrons. On Dec. 6th, the board reconsidered the Dana Corp. decision, dismissing a complaint that an employer and the UAW had violated the Act by respectively rendering and accepting unlawful support. Dissenting Board Member Hayes noted that the holding threatens “the establishment of collective-bargaining relationships based on self-interested union-employer agreements that preempt employee choice and input as to their representation and desired terms and conditions of employment.” The board continues to ratchet up the penalties for violations of the Act, which was one of the tenets of the proposed Employee Free Choice Act. In November, an employer in Deja Vu Mechanicals, 356 NLRB No. 37 (Nov. 24, 2010) settled ULP charges which included paying a particular employee several “make-whole” payments. However, language was included in the settlement that greatly magnified the penalties if the employer failed to make the payments. In essence this allows the Board to assume the original allegations against the employer are true, gives them permission to apply whatever remedies they want, and nullifies the original settlement and strips the company of any further recourse. The DOL has made clear that despite the outcome of the mid-term elections last month, it will continue, and actually ramp up, its anti-business agenda via regulation. Recent DOL documents secured by Americans for Limited Government reveal an aggressive DOL enforcement directive led by DOL Solicitor General Patricia Smith, including the following agenda items:

• “Identify a public liaison in each Regional Office” to “send stronger, clearer messages to the regulated community about DOL’s emphasis on litigation.” • “Focus on cases against employers in priority industries.” • “Litigate cases that cut across regions.” • “Engage in enterprise-wide enforcement,” e.g., send every DOL enforcement agency against a particular employer. • “Identify and pursue test cases.” This will be done to “challenge legal principles that impede worker protections; successful challenges will advance workers’ rights, as will successful enunciation of new interpretations.” • “Engage in greater use of injunctive relief.” The Department believes that fines are not enough. • “Focus DOL’s amicus program: We will focus our amicus program on those cases where DOL’s participation will provide the court with a unique voice on worker protection that the parties are not likely to articulate. • “Pursue at least one § 108(a)(2) injunctive action in federal district court.” (Refers to injunctions against coal mines where the Secretary “believes” that the operator has a pattern of violation of safety standards.) • “Imposing shorter deadlines for implementing remedial measures in conciliation agreements and consent decrees.” • “Deter [employers] through shaming.”

Yes – you read that correctly – the DOL now believes its job is to “shame” American businesses. In another tactic to increase the frequency of enforcement actions, the DOL’s Office of Federal Contract Compliance Programs (OFCCP) has issued a directive discontinuing the agency’s Active Case Management (ACM) procedures. The ACM system provided an abbreviated desk audit process, and with its loss, employers can expect more thorough desk audits and on-site evaluations. The OFCCP claimed that the ACM process “eroded” its enforcement authority. *********

LRI’s Labor Predictions for 2011 2010 has been one of the most interesting years for labor relations and union activity in decades. The outlook for 2011 is shaping up to be just as eventful. Here are a few thoughts about our expectations for next year:

• State, county and other municipal governments will continue to push back against unions in an effort to bring budgets under control. We expect to see more layoffs and nullified collective bargaining agreements in the public sphere. This will spark new PR campaigns, funded by Big Labor (especially AFSCME), promoting the “value of public service employees,” and attempting to position austerity measures by governments as violations of civil rights or even racially motivated. • Several cities, particularly in the west and northeast, will seek bankruptcy protection due to pension and healthcare fund liabilities. State governments in these same areas will seek similar protection (there is already a proposal in Congress to allow states to seek bankruptcy protection). As an alternative, states may simply begin cutting off retirees from pension benefits or default on them. • The Employee Free Choice Act, as a piece of legislation, is dead and buried. Don’t get too excited – see the prediction on “death of 1,000 cuts” below. • Union density in the private sector will drop below 7% for the first time in memory. • The Service Employees International Union (SEIU) will lose net members for the first time in years because their hold on healthcare is loosening (see below) and newly elected Republican governors will rescind many of the side deals made by union-friendly predecessors that shoved tens of thousands of home health care workers into the SEIU ranks. • There will be 2,500 or more RC petitions filed in 2011 – the most since 2005. RC petitions were up 10% in 2010 over 2009, and now that the mid-term elections have neutered Big Labor’s sway with Congress, they will spend less time playing politics and put more efforts back into grass roots organizing. There will be more elections next year than any year since 2005 – at least 1700. • Big labor law practices will come under significant financial pressure due in part to the overall economics of law practice today and in part because of potential client flight after a re-interpretation of the persuader rules which will require substantially more reporting of traditional legal “advice” activities. • The DOL will continue the process of a “death of 1000 cuts” to American businesses by continued regulatory action and rule changes. Solis and company are intent on making union activity less transparent to public scrutiny, and making businesses more susceptible to union pressure tactics, using “enforcement” initiatives. Other agencies (EEOC and the NLRB) will join in the fight. • Corporate campaign activity will increase. The NLRB’s recent revisit of the Dana Corporation decision gives neutrality agreements more protection, and coupled with the ammunition provided by the DOL for applying more pressure (see above point), unions will step up such campaigns. With the potential of outside financial help (see this article), unions may be more eager than ever to use this weapon. • Labor will continue to focus on healthcare. Healthcare is a service sector (jobs cannot be sent offshore) that is one of the few growing industries. Coupled with federal meddling with the industry and the fact that many of these facilities are public or rely on substantial government funding, it is just too juicy a target to ignore. It is likely more unions will actually get in on the hunt. (Just last month, the International Association of Machinists and Aerospace Workers targeted a nursing home facility!) • Here’s a bonus – more of a point to ponder than a prediction: Will the House of Representatives use its “power of the purse” to restrict the activities of the pro-union DOL or NLRB? It’s anyone’s guess when politics are involved, but the right pressure in the right place could be productive. This was used during the Clinton administration with some effect.

May 2011 be a prosperous year for you, regardless of the interference of Big Labor and Big Government! ********

CNA-NNU Marching Strong After experiencing success across the southwest recently, the National Nurses United marched into Florida and signed up nurses in five hospitals in just the last few weeks. As we mentioned above, the healthcare industry is a prime organizing target, and the nurses super-union is on a role. If you are in healthcare, “Katie bar the door!” ******** Delta Standing Strong Despite the efforts of the National Mediation Board to make it easier for unions to organize in the airline industry, Delta employees have consistently turned the union down flat. In the last election, the gate and reservation agents voted 8,746 against and 3,638 for the IAM. This makes the last of 9 groups that have said NO to unions since the Delta-Northwest merger in 2008. The IAM doesn’t seem to understand the nature of an election process, and is not accepting the results, asking the NMB for a re-vote. They are charging the airlines with inappropriately interfering with the election process. The alleged interference includes explaining the truth about unions to their employees, and allowing them to vote on company computers. A group of Delta flight attendants held a picket outside the Association of Flight Attendants (AFA) offices hoping to emphasize their desire to be left alone by the sore losers. ********* Union Pensions Spike Property Taxes In Evanston, IL, aldermen approved a 2011 budget that includes a 3% increase in property taxes to aid in funding the pension fund for Teamster members of the fire and police departments. ********* SCORE BOARD Who are the winners (and losers) of the labor movement? Don’t guess, just check the LRI Scoreboard

View this month’s scoreboard (archives also located here).

Download a PDF of this month’s scoreboard

**********

Stark Realities

Members of the Grain Millers (BCTGM) ran smack into the reality of the collective bargaining process in September. When the members voted down a contract (bargained for by their union), they returned to work only to discover they had been locked out. The corn processor in Keokuk, IA, apparently were concerned how the negotiations were going and how the vote would turn out, and began a month or so in advance to train replacement workers. When the lockout occurred, production didn’t skip a beat. ********** Home-Care Providers Make a Stand We’ve mentioned that at least one governor elect is working to rescind the agreement made by a former union-friendly governor to force the state’s home health care workers into unions. Several Democrat governors had signed similar executive orders on behalf of the SEIU, AFSCME, and other unions.

Governor Pat Quinn of Illinois was one of those who used the back-door scheme, forcing 4500 home care providers for persons with disabilities into unions. A class action suit to overturn the executive order has moved passed District court and is headed to appeal, with the help of the National Right To Work Foundation.

********** Death Threats Dismissed by NLRB Unite Here Local 878 represents employees working for the Sheraton Anchorage Hotel and Spa in Alaska. During a recent labor dispute, the union has apparently reverted to “old school” union tactics – including death threats and vandalism.

A police report filed on June 8 noted 3 instances of threats made to incoming hotel manager Denis Artiles and director of operations Eduardo Canas. Lt. Dave Parker, a public information officer with the Anchorage Police Department, paraphrased the reported threats, “Watch your back. You will die, motherf—. We will get rid of you at every cost,” and “I know you just arrived in town. If you think your press release is going to make us back off, you’re wrong, bitch.”

At least four vehicles were vandalized, belonging to the hotel chef, another of the hotel managers, and a transportation contractor working with the hotel and one of his employees. As would be expected, the NLRB did not find “enough evidence” that the union was responsible for the threats and damage and dismissed the charges, and of course the union flatly denies them. However, according to one of the spokespersons for the hotel, “The threats and vandalism are real. We have pictures and recordings and everything has been turned over to the police. On a side note, it’s interesting how those things seemed to have stopped since we went public with their behavior.” *********** Social Media Spotlight We apparently struck a nerve with a recent story about the impact of social media on workplace labor issues. When over 100 INK readers responded to an offer for a Social Media Strategy Call, we also developed a webinar on the topic, and after listening to the questions and hearing the concerns of those on the webinars and calls, we’ve added this new section to INK designed to highlight social media news and issues. Keep an eye out for it!

This month, in an interesting twist on the “Facebook” question, it appears Canada may be more business-friendly in its approach to employee conversations and comments on the mammoth social media venue than the U.S. When two workers at a British Colombia car dealership were fired because of comments they made about their employer and managers on Facebook, the labor board upheld the dismissals, despite the fact that the employer had just been unionized, and one of the two fired employees was an organizer of the union drive, and the other a union supporter. There are likely to be more decisions of similar cases in the near future, so stay tuned.

Here is another example of a type of social media space to keep your eye out for. Good Jobs First (www.goodjobsfirst.org) bills itself as an economic development watchdog group, and maintains several databases. One allows searches by company name for businesses who been recipients of government subsidies, and another contains a page for each state, listing tax dollars given to businesses. Information like this can be used in corporate campaigns and during organizing activity. If your name appears on a site like this, you should be proactive in how you frame the discussions surrounding activity. For example, focusing on the relationship with the municipality that contributed to your ability to bring a number of new jobs to the community would be a prudent move. Big Labor is already aware of the site and is promoting its use by their followers. [note – the main website sometimes has trouble loading, but the links to the subsidy and accountability pages seem to load properly] ********** Only In A Union Union Tries To Micromanage The Saigon Grill in New York City was recently sold when the prior owners faced criminal charges. The Chinese Staff and Workers Association, a labor-rights group based in Chinatown, attempted to force the new manager to accept new staff of their choosing, but after one day on the job, the manager fired them all. Manager Frank Chang claims that the waiters the CSWA had sent “were not qualified.” He explained, “They sent seven people, and only one or two were qualified. Customers complained.” When Chang tried to keep those who were acceptable and let the others go, all of the workers complained of unfairness, so he fired them all. Chang complained that the CSWA “wants to control the business. They want to pick the wait staff. I said one or two. They wanted all of them (hired).” ********* Sticky Fingers Current charges or sentences of embezzling union officials: Craig Bohn                                    SPFPA                     $7,000 Donald Kister                               LIUNA                     $4,137 Richard Dean                              UBC                          $15,374 Robert Rybak                              JPU                           $11,000 Michael Doggett                         UBC                           $104,037 Ellsworth Williamson              USW                          $5,159 Mozelle Means-Swanson          APWU                       $4,900 Bernadette Beal                         AFT                           $25,536 Dustin Heichel                          BLET                          $1,562 Brenda Bywater                       AFSCME                    $2,945 James Patrick Correll             SPFPA                       $22,278 http://www.nlpc.org/union-corruption-update

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