Labor Relations & Wages Hours Update August 2013

Hot Topics in LABOR LAW:

NLRB Chairman Mark Gaston Pearce and Acting General Counsel Lafe Solomon announced on August 1 the appointment of Ben Mandelman as Officer in Charge of the NLRB’s newly-designated Subregional office in Milwaukee (Subregion 30).

Last week, the Board published a notice in the Federal Register advising that the agency is changing its regional offices in Puerto Rico and Milwaukee to subregional offices assigned to the supervision of the Tampa and Minneapolis Regional Offices respectively. The changes were prompted by a decline in unfair labor practice and representation case filings in each of the regional offices subject to restructuring and the Board’s desire to equalize caseload and case management responsibilities in all affected offices.

In his new position, Mandelman will assist Marlin Osthus, Director of the NLRB Region 18 in Minneapolis, in enforcing the National Labor Relations Act in Wisconsin, the western portion of the upper peninsula of Michigan, Minnesota, most of Iowa, North Dakota and South Dakota. Mandelman is Subregion 30’s initial Officer in Charge upon its formal restructuring with the Minneapolis office, which became effective August 1.

Mandelman is a native of Milwaukee. He received his B.A. degree in economics from the University of Wisconsin, Milwaukee, and his J.D. degree from the University of Wisconsin, Madison. He began his NLRB career as a field attorney in the Milwaukee office in 1973. He was promoted to Deputy Regional Attorney in 1999 and to the position of Deputy Director in 2006.

Expanding outreach efforts, NLRB to collaborate with Mexican embassy

The NLRB and Mexico’s Ministry of Foreign Affairs have signed a letter of agreement under which the entities will collaborate to offer information and guidance to Mexican workers, their employers, and Mexican business owners in the United States. The partnership, announced by the Board on August 1, marks the agency’s latest effort to broaden employees’ awareness of their protected rights under the Act—making inroads in the immigrant community in particular. The agreement also will promote awareness of the services that the NLRB provides, according to NLRB Acting General Counsel Lafe Solomon.

“We recognize the need to improve employer and worker awareness of the rights and obligations under the Act that are applicable to all Mexican workers in the United States of America,” Solomon said.

Under the agreement, an outgrowth of negotiations between the NLRB’s Chicago office and the Mexican consulate office there, the NLRB and the Mexican Embassy in Washington, D.C. (and the Board’s regional offices and Mexican consulates nationwide) will jointly provide outreach, education, and training. They will also partner to develop best practices. The framework has been used by other federal agencies, including the DOL and EEOC, which have similar agreements with the Mexican Embassy and its consulates, according to the Board.

With the partnership, the Board will have “a greater opportunity to fulfill the goals of the National Labor Relations Act, to guarantee the right of workers—including employees just entering the work force—to engage or refrain from engaging in protected-concerted or organizing activity to improve their working conditions without fear of discrimination, harassment or retaliation,” Solomon said. He added that the agreement will increase the NLRB’s ability to provide employers, including Mexican business owners in the U.S., with access to education and training about their rights and responsibilities under the Act.

“With coordination from the consulates, we expect to meet with Mexican workers around the country to help forge innovative solutions to issues specific to their needs,” said Solomon.

President Obama on Thursday, August 1, sent to the Senate the nomination of Richard F. Griffin, Jr. to serve as General Counsel of the NLRB for a four-year term, replacing Ronald Meisburg to fill a seat kept warm most recently by embattled Acting General Counsel Lafe Solomon. Griffin, who served as Board member under a controversial recess appointment in January 2012, saw his nomination to the NLRB withdrawn by the President as part of an eleventh-hour deal with Senate Republicans in the face of their staunch opposition.

Griffin, who earned a J.D. from Northeastern University School of Law, was previously general counsel of the International Union of Operating Engineers.

Also on Thursday, the President formally withdrew Solomon’s name for the post; his nomination was originally sent to the Senate in May.

On August 1, President Barack Obama submitted to the Senate his nomination of Patrick Pizzella, of Virginia, to be a Member of the Federal Labor Relations Authority for a term of five years expiring July 1, 2015. If approved, he would replace Thomas M. Beck, who resigned.

Pizzella is Principal at Patrick Pizzella, LLC, a position he has held since 2009. He previously served as Assistant Secretary of Labor for Administration and Management at the DOL from 2001 to 2009. Before that, he worked at Preston Gates Ellis & Rouvelas Meeds LLP as a Government Affairs Counselor from 1998 to 2001 and as Director of Coalitions from 1996 to 1997. From 1990 to 1995, Pizzella was Director of the Office of Administration at the Federal Housing Finance Board, and from 1988 to 1989, he was Deputy Under Secretary for Management at the Department of Education. He has previously held positions at the Office of Personnel Management, Small Business Administration, and the General Services Administration. Pizzella received a B.S. in Business Administration from the University of South Carolina.

Passenger service employees at US Airways reach tentative CBA

The Communication Workers of America and the International Brotherhood of Teamsters have reached a tentative agreement that covers 6,500 passenger service employees at US Airways, the CWA announced August 1. Together, the IBT and the CWA represent the reservations and airport agents.

All passenger service employees will receive wage increases at every step, as well as ratification bonuses, under the tentative agreement. The agreement also provides critical job security protections, an issue that the CWA says is important for workers as the US Airways-American Airlines merger goes forward.

Agents from the two airlines have launched a joint campaign to make sure they have a strong union voice at the merged airline, according to the release. “Working together, passenger service employees at US Airways have built a strong, united group that will continue to make advances for all agents as the US Airways-American Airlines merger proceeds,” said CWA Chief of Staff Ron Collins.

A ratification vote on the tentative agreement is being scheduled.

UFCW breaks with CTW, joins AFL-CIO

The United Food and Commercial Workers Union (UFCW) announced on August 8 that it has moved its affiliation to the AFL-CIO — a move it says is aimed at a stronger, more unified labor movement. UFCW President Joe Hansen, supported by a vote of the UFCW Executive Board, made the decision to add the 1.3 million private sector members to the AFL-CIO federation “in order to build a stronger, more unified voice for the rights of workers,” according to a UFCW press release.

“This is not about which building in Washington D.C. we call home — it is about fostering more opportunities for workers to have a true voice on the job,” Hansen said in a statement. “It is about joining forces to build a more united labor movement that can fight back against the corporate and political onslaught facing our members each and every day.”

Calling the UFCW’s former affiliation with the Change to Win Federation (CTW) a rewarding one, Hansen said that his union will continue its relationships with the Teamsters, SEIU, and the Farmworkers. The UFCW will also remain active with the CTW’s Strategic Organizing Center and “bring its AFL-CIO partners into collaboration with private-sector unions in an effort to build more power for workers,” according to Hansen.

“The need for unity became paramount after the 2010 elections,” Hansen explained. “The attacks on workers brought the UFCW into direct strategic partnership with the AFL-CIO and the entire labor movement. Our shared campaign revealed a dynamic and revitalized AFL-CIO and made it clear that it was time for the UFCW to redouble our efforts to build a more robust and unified labor movement.”

Hansen also cited, as an impetus for the change, AFL-CIO President Richard Trumka’s “bold leadership” and his “strategic advocacy on key issues,” such as the urgent need for comprehensive immigration reform, changes to the Affordable Care Act that would permit workers in multiemployer plans to keep the health care they currently have, and ensuring that the NLRB can protect workers’ rights.

United Auto Workers Local 2121 reached a tentative agreement August 6 on a new contract covering casino dealers at the Foxwoods Resort Casino and MGM Grand on tribal land in Mashantucket, Connecticut, according to a release by the local.

If the agreement is ratified, the dealers get a pay increase of $0.25 per hour (2.5 percent) retroactive to March 1, 2012. They will also receive an increase of $0.30 per hour (3.0 percent) retroactive to March 1, 2013, followed by $0.30 per hour increases (3.0 percent) each year in 2014 and 2015.

The deal would also delay increases in health insurance premiums, add a wellness program, and preserve the 401k match, their weekend regular days off, full-time and dual rate ratios, and caps on casual usage—which creates promotional opportunities for part-time members. Dealers alone will also determine any changes to their tip distribution method.

A two-day ratification vote will be held on August 29 and 31.

EFE News Services. The News Media Guild announced on August 2 that after 20 months of tough bargaining, its negotiators have reached a tentative agreement with EFE News Services. EFE, based in Madrid, is state-supported but independent—it’s the world’s largest Spanish-language news agency. The Guild represents the company’s U.S. workers. If approved, the new pact would provide a two-year period of unpaid furloughs, followed by the first wage increase for U.S. staff since 2008.

Specifically, the contract would require all workers to take 24 unpaid furlough days over a two-year period, starting in 2014. Workers also would have to pay 5 percent of the cost of the current medical insurance plan. In 2015, however, wages would increase 2 percent across the board. The agreement would extend 42 months, beginning on January 1, 2012, and expiring June 30, 2016. Unlike the previous agreement, there are no re-opener provisions.

Guild members, who work in Washington, New York, California, and Miami, stood together during bargaining, donning red T-shirts and sharing images on social media, the union said.

The tentative contract now goes to members for a ratification vote.

Board prepares to act under new MOU with OSC when charges allege discrimination under INA against US citizens, other work-authorized persons

By Pamela Wolf, J.D.

The NLRB’s Office of the General Counsel, Division of Operations-Management, has sent out an operations management memo (OM 13-59) regarding the Memorandum of Agreement (MOU) entered into on July 8 by Acting General Counsel Lafe Solomon and the DOJ’s Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC). The operations management memo also attaches the MOU and directs that a Charge Referral Checklist and Referral Transmittal Information Sheet be distributed to NLRB field attorneys and field examiners for use in the new collaborative process and that discussions on the MOU be held.

The MOU formalizes a collaborative relationship that permits the two agencies to share case-handling information and coordinate investigations as appropriate. With the charging party’s express authority, charges may be referred by one agency to the other during the charge intake or case-handling process when a matter suggests a possible violation of the other agency’s law.

The OSC, which is an agency within the DOJ’s Civil Rights Division, enforces the antidiscrimination provision of the Immigration and Nationality Act (INA). That provision bars certain employment-related discrimination against US citizens and other work-authorized individuals. Employers that unlawfully discriminate may be required to pay back wages and civil penalties and to hire or rehire workers.

The MOU also provides for cross-training and technical assistance to ensure that staff within each agency can identify appropriate referrals. To that end, the management operations memo attached an overview of the OSC’s jurisdiction, as well as charge referral instructions and a referral checklist. It also directed that these documents be distributed to all field attorneys and field examiners, and that the MOU and the jurisdiction of the OSC be discussed at upcoming training or staff meetings.

On Monday, August 12, the International Association of Machinists and Aerospace Workers (IAM) won an election overseen by the Nation Mediation Board (NMB), defeating the International Brotherhood of Teamsters (IBT) by a vote of 1,903 to 1,418 in a battle over representation of worker at US Airways. The outcome of the five-week election means that IAM will represent nearly 4,600 Mechanic and Related employees at the airline.

Contract negotiations had been effectively suspended during the year-long representation battle with the IBT, according to IAM, which has represented Mechanic and Related employees at US Airways since 1949.

“This victory marks an important milestone for the Mechanic and Related group at US Airways,” IAM Transportation Vice President Sito Pantoja said in a statement. “By voting for the Machinists Union our members safeguarded their pensions and seniority heading into the merger with American Airlines while rejecting the empty promises of an organization with a history of corruption.”

“The election results will allow contract negotiations between the IAM and US Airways to resume without any further delay,” said IAM District 142 President Tom Higginbotham. “We remain convinced that the IBT never had support among mechanics at US Airways to get this election in the first place. We fully expect the NMB to thoroughly investigate the matter.”

IAM suggested that in a separate IBT battle over more than 11,000 Mechanic and Related workers at American Airlines, IBT staff forged hundreds of election authorization cards, pointing to testimony of former Teamster organizers that was presented by the Transport Workers Union (TWU). The NMB is currently investigating to determine if the IBT submitted enough valid cards to warrant an election at American Airlines, according to IAM.

The United Steelworkers Union announced on August 12 that members have voted to ratify a new four-year contract with Bridgestone-Firestone. However, in a separate development, union members rejected a proposed deal with BF Goodrich.

In a continuing battle over the treatment of Latino employees at Elk River, Minnesota-based Cretex, a delegation of Latino employees stormed the company’s headquarters on August 13 to demand a meeting with execs after their union’s request to negotiate nondiscrimination contract language was purportedly rejected, according to a release.

Members of Local 563, who work at Cretex’ Shakopee, Minnesota, concrete plant, have been picketing since June 19, when they went on strike to protest company plans to slash retirement benefits. The union said that 15 of their members have filed EEOC charges against the company, alleging they have been subjected to ongoing harassment, intimidation, and unequal treatment, such as the following:

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  Use of insulting and offensive language—statements to the effect that “Mexicans have no brains” and “Mexicans are too stupid to use computers”—and harassment of Latino immigrants for speaking to each other in Spanish during breaks.
  
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  Unequal treatment of Latino and immigrant workers, who are assigned more difficult and dangerous work, and disciplined more frequently and more harshly than their peers.
  
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  Attempted intimidation through threats of firing and, in some cases, threats to the person and property of Latinos.
  

Until there is a meeting, the Latino workers plan to keep up their peaceful vigil. “We want nothing more than to go back to work and to be treated as equals,” said Cretex employee Julio Ocampo Sanchez. “Sometimes you have to fight and sacrifice to make things happen.”

“We are very disturbed by what our Latino brothers have told us about what is going on at Cretex,” said Tim Mackey, business manager for Local 563. “No union member, no worker, no human being should have to put up with this. We have asked the company to come back to the table two weeks ago to discuss new contract language to protect our members from discrimination, harassment and intimidation.”

Cretex, according to Mackey, has refused to negotiate on the discrimination issue.

In the world of collective bargaining, AK Steel has a confirmed CBA with steelworkers, Patriot Coal workers have ratified a labor-management agreement, emergency services professionals in two Western states have organized, and the vote on a tentative US Airways contract has been delayed. In addition, two states have reached agreements with public employee unions.

We are pleased to have reached a new labor agreement at our Ashland Works ahead of the expiration date,” said James L. Wainscott, Chairman, President and CEO of AK Steel. “The agreement continues to serve the interests of both the company and Local 1865 members in an increasingly competitive, global steel industry.”

Members from 13 local unions participated in the vote, which was overseen by UMWA local union tellers and conducted at worksites. The final vote was 85 percent in favor to 15 percent opposed. The UMWA International Auditor/Tellers have certified the vote.

“The membership has made it clear that they are willing to do their part to keep Patriot operating, keep their jobs and ensure that thousands of retirees continue getting the health care they depend on and deserve,” UMWA International President Cecil E. Roberts said. “This has been a difficult and uncertain year for our members. But I believe that in the end, they understood that we had done a lot to improve what the judge had ordered. They also understood all that was at stake and resolved to move forward in a positive way.

“But as we work to keep Patriot a viable company into the future, we have not forgotten how we got here and who is responsible,” Roberts said. “With this agreement, we have foiled the schemes of Peabody Energy and Arch Coal by continuing to both provide health care for retirees and maintain union jobs at these mines.”

Roberts said the settlement with Patriot does not provide enough resources to fulfill the promise of lifetime health care benefits that Peabody and Arch had agreed to provide to thousands of retirees from those companies.

“Ratification of these agreements provides labor stability and ensures cost savings essential to Patriot's plan of reorganization,” said Patriot President and Chief Executive Officer Bennett K. Hatfield. “These agreements should set Patriot on a path to emerge from bankruptcy by the end of 2013.”

A motion seeking authorization to enter into these agreements has been filed with the Bankruptcy Court in St. Louis and will be heard on August 20, 2013.

EMS workers. Emergency medical services professionals in California and Arizona voted this week to unionize with United EMS Workers-AFSCME. Employees of First Responders EMS in Sacramento, California, won their election on Monday, August 12, with 76 percent of the vote, according to AFSCME. Employees at River Medical Ambulance-AMR in Lake Havasu, Arizona, held their election the following day and chose to unionize with AFSCME — this time with 90 percent of the vote.

According to AFSCME, the victories are part of a movement of EMS workers uniting across the country with unions to have a voice in their profession. More than 3,000 workers in Northern California and New England joined United EMS Workers last year.

The tentative agreement was an interim settlement while the merger moved forward. Although US Airways contends that the merger will be completed, the time frame will be longer, and the unions have concluded that it would be better to evaluate all options before proceeding with the vote.