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In this issue:

News and Analysis

The Good, the Bad and the Ugly

EDITOR’S NOTE: There have been numerous developments in the labor relations area since President Barack Obama was inaugurated on January 20, 2009. Many of these developments have already been covered in other Constangy publications. Here are links to those items:

Obama Rescinds Beck Rule: Requires “Union-Friendly” Posting Instead
February 9, 2009

Obama’s Order on Union Organizing Expected to Have Limited Scope
February 9, 2009

The Transition Report
February 4, 2009 (Obama appointments to key positions)
February 2, 2009 (Miscellaneous issues)

Fasten Your Seatbelts, It’s Going to Be a Bumpy Night!
January 27, 2009 (Wilma Liebman becomes chair of NLRB)


Union membership grew again in 2008. – The percentage of public and private sector workers who were members of labor unions in 2008 rose to 12.4 percent, an increase of 3 percent from 2007. In the private sector 7.6 percent of workers were members of unions, a slight increase from 7.5 percent in 2007. Except for the increase in 2008 and a small rise in 2007, union membership has fallen or held steady since 1983. Commentators say the increase in 2008 was noteworthy because union employment successfully weathered the beginning of the current recession.

Solis nomination heads to full Senate. – The nomination of pro-labor Rep. Hilda Solis (D-Calif.) to be labor secretary finally heads to the Senate for confirmation. The nomination was placed on hold after a newspaper report that her husband recently paid more than $6,000 to settle tax liens against his business and by her failure to disclose her service as an unpaid board member and treasurer of the pro-labor advocacy group American Rights at Work. Solis, whose father was a Teamster shop steward and mother a member of the Rubber Workers, has been praised by organized labor as “passionately committed to the right to form unions and bargain collectively.” AFL-CIO President John Sweeney has noted that Solis has cast pro-labor votes 97 percent of the time during her eight years in the House. At least one Republican senator is expected to try to place another hold on the nomination because of Solis’ support for the Employee Free Choice Act.

President Obama has designated Edward Hugler, a career DOL attorney, as acting labor secretary “until a secretary of labor is confirmed and takes office.”

Employee Free Choice Act in trouble? – Despite a recent huge rally in Washington, D.C., where hundreds of workers and union officials delivered to members of Congress more than one million signatures in support of the EFCA, the legislation has not been reintroduced. Observers conclude that that bill’s House backers have not been able to obtain the 218 co-sponsors they had hoped for, perhaps because of the backlash resulting from the anticipated elimination of the secret ballot election as the primary NLRB certification process. Many observers now believe the bill will not come up for a vote before April, given the other priorities of Congress and the administration. There is also the possibility that organized labor will eventually withdraw the EFCA if there are other changes in labor law such as “quickie union representation elections” within 10 to 14 days after an election petition is filed, and union access to employees at work.

Walkout to attend negotiations not protected. – When six drivers left work without permission to attend a bargaining session over the effects of closing their unionized facility, they were fired for violating the contract’s no-strike provision barring “strikes, work stoppages or other concerted interference with normal operations.” An administrative law judge subsequently found that the employer violated Sections 8(a)(1) and (3) by discharging the drivers and refusing to consider them for hiring at another facility, all because their activity was protected. Subsequently, the National Labor Relations Board affirmed that the walkout was protected because it was concerted activity related to a labor dispute and did not violate the no-strike provision of the contract. On appeal to the U.S. Court of Appeals for the District of Columbia Circuit, Judge Douglas H. Ginsburg, writing for the majority, disagreed. He found that the drivers’ walkout to obtain information from management about their future employment was not related to an ongoing labor dispute and that the drivers did not have a compelling reason to attend the bargaining session. According to Ginsburg, Northeast had a legitimate reason for its actions. He observed that nothing in the law suggests that the National Labor Relations Act protects a walkout that is not part of an ongoing labor dispute over terms or conditions of employment – the drivers wanted only to get information about their employment.


Divorce not final? – Presidents of twelve of the nation’s largest unions, as well as the heads of the AFL-CIO and Change To Win federations, recently met to begin discussions about reunifying the labor movement into one organization. The meeting was arranged by a member of President Obama’s transition team who also heads American Rights at Work and has worked closely with the unions in gearing up for the fight to pass the EFCA. Reunification is on the table primarily because President Obama has expressed a preference for dealing with just one labor federation. According to many in the labor movement, the split by Change to Win weakened the federation’s resources in critical areas as safety and health, legal, and legislative strategy. According to a Teamsters official, “three and a half years later, few working people could list any accomplishments of the breakup, if they are aware of it at all.”

Get outta HERE, says UNITE. – After only five years, the merger of UNITE and HERE is in big trouble. On January 22, Bruce Raynor, the general president of UNITE HERE, and four executive committee members all formerly of UNITE, filed suit against John Wilhelm, former president of HERE and current president of UNITE HERE’s hospitality division and seven executive committee members formerly of HERE. The lawsuit alleges that Wilhelm, acting on behalf of a faction of former HERE officials, is seeking to take control of the union and its finances, most of which are contributed by a bank owned by UNITE. Under the union’s constitution, Raynor and Wilhelm each have veto power over the other in the exercise of their joint powers, but the suit alleges that Wilhelm and the former HERE executive committee members are voting on matters that only the presidents are authorized constitutionally to direct. Wilhelm has maintained that if the presidents do not agree, the executive committee can act on the issues. With HERE having an 8-5 majority on the committee, the HERE faction can control the union.

During a February 9 meeting, the union’s executive board rejected a resolution proposing that the 2004 merger be dissolved. In materials accompanying the resolution, Raynor accused Wilhelm and his associates of failed organizing projects, squandered resources and lack of accountability. He claims UNITE HERE has spent $61 million since 2005 on organizing in the hotel and gaming sectors with “little to show for it.”

As a back-up measure, a group of 14 vice presidents and one local manager previously with UNITE have now filed a second lawsuit in federal district court to end the merger. According to the complaint, the larger membership level of the union’s HERE faction has “rendered futile any resort” by the UNITE faction to the union’s executive board and union’s convention coming up in June. Noting that at the time of the merger, UNITE had about $500 million in assets while HERE had less than $20 million in assets, the UNITE faction asserts that HERE entered the merger to gain access to the assets of UNITE and has misused those funds. The complaint claims there “are broad and irreconcilable differences” between the UNITE and HERE factions that are “interfering with the essential functions of a trade union.”

Employer helping with decertification petition is a little too helpful, NLRB finds. – In Narricot Industries, LP, the NLRB ruled that the employer violated the Act by withdrawing recognition from the union based on an employee decertification petition tainted by the employer’s unlawful assistance in the initiation and circulation of the petition. After the parties failed to reach agreement on a new contract, a decertification petition was circulated by three employees. When one of the employees asked for information about how to decertify the union, the human resources manager prepared a petition, gave it to the employee and told him that 220 signatures would be needed to remove the union. The HR manager also gave copies of the petition to the other two employees, furnished a list of bargaining unit employees and told them to return the signed petitions to him. When one of the employees returned the petitions, the HR manager expressed approval but told the employee more signatures were needed. A supervisor told one employee that the employees would receive a pay raise if the union was decertified and that the petition was available for signature in the supervisor’s office. The two Board members found there was sufficient proof that the employer’s officials provided more than the permissible “ministerial aid” in the initiation and circulation of the petition and agreed that the employer’s conduct was aimed at causing dissatisfaction with the union. Board Member Schaumber wrote separately that he was not passing on whether an employer’s “mere provision” of an employee list to facilitate the collection of signatures on a decertification petition was unlawful.

The Board reasoned that entering the bargaining order vindicated the rights of employees who were denied the benefits of collective bargaining while at the same time not unduly prejudicing the rights of employees who oppose union representation. The bargaining order would bar the filing of a decertification petition “no longer than is reasonably necessary to remedy the ill effects of the violation,” the Board said.

Oh, rats – it’s freedom of expression! – The New Jersey Supreme Court has reversed lower court decisions that had upheld the conviction of a senior union official for violating a township ordinance that banned, among other things, balloon signs or other inflated signs displayed to attract the attention of pedestrians and motorists. The union official had sanctioned the display of a 10-foot inflated rat on the public sidewalk outside the site of a former warehouse being retrofitted by a non-union electric contractor to house a Gold’s Gym.

The lower court had ruled that the ordinance was not preempted by the NLRA, did not violate the First Amendment right to free speech, was not void for vagueness, was content-neutral, and was not selectively enforced against unions. Justice Wallace, writing for the state Supreme Court, disagreed. He found the ordinance was overly broad because it eliminated “an entire medium of expression without a readily available alternative,” and under the First Amendment, debate on public issues should be “uninhibited, robust and wide open.” Since “public streets, parks and sidewalks are traditionally public forums,” the government has a “very limited” ability to restrict expressive activity, he said. He found an ordinance that prohibited a union from displaying a rat balloon while, at the same time, allowed a similar display as part of a store grand opening was content-based. Moreover, Judge Wallace reasoned that the use of the rat balloon “represents a form of expression designed to reach a large number of people.” There was no evidence suggesting the rat balloon was significantly more harmful to aesthetics or safety than a similar item displayed as an advertisement used in a grand opening promotion.

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