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In this issue:

News and Analysis

The Good, the Bad and the Ugly


Third Circuit Agrees: UNITE HERE Shouldn’t Have Recorded Cintas Employees’ License Plate Numbers. – Believing that house calls to employees were essential to organizing Cintas Corporation, UNITE HERE obtained employees’ home addresses and telephone numbers by entering Cintas parking lots and recording the license plate numbers on employees’ cars. The union then found the names and addresses by using online databases, private investigators, and information brokers. Ten employees at one Cintas facility filed a putative class action, alleging that the union had violated the federal Driver’s Privacy Protection Act. A federal district court certified the class action, granted summary judgment to the employees, and ruled that each named plaintiff was entitled to an award of $2,500. The court declined to award punitive damages, however. Both parties appealed to the U.S. Court of Appeals for the Third Circuit.

In Pichler v. UNITE, the Third Circuit essentially upheld the trial court. The union had argued that its activity was legal because the DPPA allows use of information obtained in connection with civil proceedings and “in anticipation of litigation.” The union had claimed that its effort to organize Cintas employees could not be separated from its investigating and preparing charges and lawsuits against the company. The court rejected that argument, concluding that the litigation component to UNITE HERE’s corporate-style campaign should not obscure what UNITE HERE was really trying to accomplish – organizing labor. On the issue of punitive damages, the court remanded with directions for the trial court to explicitly address whether UNITE HERE was entitled to summary judgment on the issue of punitive damages. If not, then the plaintiffs will be entitled to a jury trial on that issue.

Alcoa Bargained Over Decision to Stop Releasing Employees Early to Attend Union Meetings, Board Finds. – For 10 years, employees at an Alcoa plant had been allowed to clock out early to attend monthly union membership meetings on weekday afternoons. Although the company did not pay employees for the time they took for the union meetings, it became concerned that the loss of employee hours each month was affecting its ability to meet production demands.

When the company explained its concerns to the local union president and asked the union to propose alternatives to the current monthly practice, the union said that the employees’ right to clock out early for the meetings had become part of the attendance policy and that the union did not want to bargain about any change. About one month later, the company again asked the union for a proposal or alternative to shutting down production every month. The union responded that its proposal was to leave the scheduling practices unchanged. Several weeks later the union was advised that the company would discontinue its practice of releasing employees early to attend union meetings. Thereafter, attendance at the union meetings declined sharply. The union filed an unfair labor practice charge, alleging that the company’s unilateral change in its past practice violated the company’s duty to bargain under Section 8(a)(5) of the NLRA.

Ruling that the practice of allowing employees to leave work early had become a term or condition of employment and was a mandatory subject of bargaining under the NLRA, in Alcoa, Inc., the Board found that Alcoa had met its bargaining obligation under the Act. While the administrative law judge had found the company did not bargain over the issue because it did not offer the union anything, but simply asked the union to change, the Board members disagreed. Noting that the company raised the issue more than two months before making any change, it clearly signaled to the union that the current leave policy could not continue. According to the NLRB, Alcoa had no duty to initially offer substantive concessions; its duty was only to give the union adequate notice and an opportunity to bargain.

Two-Member NLRB Keeps on Truckin’, But Some Want it to Take a Pit Stop. – Since the start of 2008, the NLRB, which is designed to have five members, has been operating with just two members – Clinton appointee Wilma Liebman and Bush recess-appointee Peter Schaumber. The three vacancies may not be filled until after the next president takes office. The Democratic-controlled Senate has not approved President Bush’s nominations and has blocked him from making any more short-term recess appointments.

A 2003 opinion by the Justice Department found that if the full Board delegates all of its powers to a three-member panel, and if one of those members leaves the Board, the remaining two members constitute a quorum authorized to issue decisions. Currently, Constangy has filed two of the eight cases pending in the federal courts that challenge the legality of decisions issued by only two members. The current two-member Board has been unable to reach agreement on about 25 percent of the new cases they review and on a significant number of major cases that were not decided when the Board had five members.

That said, as of the end of September, the Board was expected to have issued more than 300 decisions, most by the Liebman-Schaumber duo, and the inventory of pending cases is at an historic low of just under 200 cases.

Because the Board traditionally does not reverse precedent unless a three-member majority agrees, Members Liebman and Schaumber have agreed to decide all cases based on current Board precedent. They claim to approach each case with an open mind, search for ways to reach agreement on the issues presented, and seek to avoid passing on the resolution of issues that may divide them.


Wal-Mart Defends Its Campaign Against EFCA. – For some time now, Wal-Mart has been under fire from organized labor after it held mandatory meetings with its managers and supervisors to inform them that the company opposes the Employee Free Choice Act, that the enactment of EFCA could deprive employees of a vote on whether to form a union, and that voting for Democratic presidential candidate Sen. Barack Obama and other like-minded candidates could lead to its enactment.

Although this seems to be fair and accurate commentary about the EFCA (Obama has said that he is in favor of the EFCA), four labor groups have filed a complaint with the Federal Election Commission, asking for an investigation into whether Wal-Mart’s conduct was unlawful. The labor groups argue that the “supervisors” were hourly-paid and therefore not in the restricted class of employees to which corporations are allowed to express advocacy about federal candidates.

Wal-Mart says that it has been opposed to the EFCA for some time and believes that educating its employees about the bill is the right thing to do. According to a Wal-Mart spokesperson, “if anyone representing Wal-Mart gave the impression we were telling associates how to vote, they were wrong and acting without approval.”

Quelle horreur! (It Could Happen Here, Folks.) – Speaking of the EFCA (and Wal-Mart), we can get an inkling of what life under the EFCA would be like by looking to our neighbors in the North. Among other things, the EFCA would mandate binding arbitration if the parties fail to reach a first contract within 120 days. The Canadian province of Quebec has a similar law, and an arbitrator there recently imposed a collective bargaining agreement on a Wal-Mart Canada Corporation store, making the employees at that store the only Wal-Mart employees in North America to have a union contract.

The three-year contract is a result of binding arbitration conducted after almost three years of legal delays and stalled bargaining after certification of a local of the United Food and Commercial Workers Union. The arbitration awarded the union workers wage increases averaging 30 percent, with the lowest wage rate increasing from $7.99 to $10.85 per hour.

UFCW Dedicates 66% of Its Revenue to Organizing. – Back home in the United States, delegates to the recent convention of the 1.3 million-member United Food and Commercial Workers Union adopted a resolution calling for the union to increase its spending on organizing to 66 percent of its total revenue. The delegates also approved a per capita tax increase of up to $3 per month over the next five years to help fund the “unity agenda” plan to expand the union. The current per capita tax paid by local unions will be increased to $13.50 in December.

NLRB General Counsel Still the Target of Union Handbilling. – Members of the NLRB Union will not give up. Recently several members of the union who are employed in the Board’s Denver office distributed handbills outside the entrance to a hotel where NLRB General Counsel Ronald Meisburg was speaking. The handbilling was the most recent of a series of protests against Meisburg, who has refused to recognize and bargain with a consolidated unit that consists of employees who report to Board members and employees who report to the General Counsel. The General Counsel has said his sole motive is “to ensure the independence of the office of the General Counsel.” Refusing to bargain is the only way for the NLRB to obtain eventual judicial review of the appropriateness of the consolidated unit.

Get a Job, You Bum! – In Grosvenor Orlando Assoc. Ltd. d/b/a The Grosvenor Resort, the Board ruled that reasonably diligent discriminatees should at least begin searching for interim employment during the first two weeks after discharge. If a discriminatee unreasonably delays an initial search, the NLRB will toll back pay until such time as a reasonably diligent search begins. This case is the first to establish the two-week period as indicative of “reasonable diligence.”

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