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News and Analysis

The Good, The Bad And The Ugly

NEWS & ANALYSIS

Is It Never Too Late? – Once again a Circuit Court of Appeals has agreed to enforce a Labor Board order even though it said the NLRB’s five-year delay in resolving the case was “inexplicable.” In NLRB v. Goya Foods of Florida, the employer argued that the Board’s bargaining order remedy was inappropriate because, during the five-year period between the ALJ’s decision and the Board’s order, employee turnover or other changes in circumstances should have been considered by the Board. The court disagreed, noting that during that five-year period, Goya did not file anything with the NLRB raising a claim that there were changed circumstances and that “in light of the egregious nature of the unfair labor practices and anti-union animus revealed by this record, and the lack of any evidence that the anti-union animus might have abated or that the pro-union sentiments of the employees might have changed,” the Board was not required to reopen the record for receipt of evidence of changed circumstances.

Just Shut The Door! – A written hospital policy prohibited solicitation and distribution in all patient-care areas including hallways adjacent to patient rooms, operating rooms, and other areas used by patients. Although the policy specifically allowed solicitation and distribution during non-work time in employee break areas, the hospital instructed its nurses during an organizing drive that such activity was not allowed in the break rooms because of their proximity to patient-care areas. The hospital argued that its ban of solicitation and distribution in break rooms was lawful because only a corridor separated them from patient rooms and the break room doors were usually left open so patients could hear the staff talking in the break rooms. The hospital had, however, allowed solicitation and distribution in the break rooms for Avon products, Pampered Chef kitchen equipment, bikini line lotion, Girl Scout cookies, houses, cats and other personal items.

Writing for the U.S. Court of Appeals for the Seventh Circuit, Judge Posner rejected the hospital’s argument that it could allow charitable and social solicitations while prohibiting union and commercial solicitations. The judge pointed out that all types of solicitation have the potential to disturb patients, yet the only type the hospital acted to stop was union solicitation. Furthermore, if employee conversations in break rooms could be heard in patient rooms, the obvious solution for the hospital was to require that the doors to the break rooms be shut except when someone was entering or leaving. St. Margaret Mercy Healthcare Ctr. v. NLRB.

Court Asks “Why Now”? – Reversing the NLRB, the U.S. Court of Appeals for the Second Circuit finds in United Auto Workers v. NLRB that a no-harassment rule promulgated after the union filed a petition for an NLRB election was illegal since “no reasonable employee could fail to infer that the rule against ‘harassment,’” which the company did not define, “was intended to discourage protected election activity.” The employer’s president had announced the rule to groups of plant employees after the company had promulgated another illegal rule which prohibited employees from discussing the union or soliciting union support during working hours. (It is lawful to prohibit solicitation during work time but not during work hours.) He told employees, “It has come to my attention that some union supporters, not all, but some, are harassing fellow employees” and warned that “harassment of any type is not tolerated by this company and will be dealt with.” According to the court, a rule constitutes an unfair labor practice if employees reasonably would construe the language to prohibit protected activity, if the rule was promulgated in response to union activity, or if the rule has been applied to restrict protected activity.

SEIU Takes It on the Chin – The Service Employees International Union continues to do battle with other unions in the healthcare industry and elsewhere.

  • In March, union representation elections at nine Catholic Healthcare Partners facilities in Ohio were abruptly cancelled when the California Nurses Association/National Nurses Organizing Committee began distributing leaflets to employees accusing the hospital system and the SEIU of having reached an illegal “back room” deal that compromised workers’ rights.
  • The “war” between the unions escalated on April 16, when CNA/NNOC sought and obtained a temporary restraining order against SEIU president Andrew Stern and the SEIU staff. According to CNA/NNOC, Stern dispatched more than 100 organizers and SEIU employees to California “for the express purpose of stalking, intimidating and threatening CNA/NNOC board members and staff.” There were also rumors of an “invasion” of CNA/NNOC offices in California. The temporary restraining order has since been dissolved.
  • Also in California, members of United Healthcare Workers-West, an SEIU local, voted to remain with UHW rather than be transferred to another SEIU local. This latest spat between UHW and the SEIU International is part of an ongoing dispute over the direction of the International and what UHW believes is a fight for democracy at the local level. The UHW plans to take the dispute to the SEIU convention next month.
  • On April 29, SEIU retaliated by filing a lawsuit charging that 10 officers of UHW violated federal labor law when they diverted millions of dollars of dues to an outside fund they controlled.
  • And, just in case you didn’t think the SEIU had enough troubles, the Allied International Union has filed a federal lawsuit under the Racketeer Influenced and Corrupt Organizations Act, charging officials of two SEIU locals with racketeering, extortion, fraud, and other illegal activities. According to the suit, the SEIU engaged in that illegal activity “to raid AIU’s membership, destroy its ability to represent its members effectively and force AIU out of business in order to supplant AIU as the exclusive bargaining representative of thousands of security officers in New York City, LA, and elsewhere.”

THE GOOD, THE BAD AND THE UGLY

UAW Membership Drops to Lowest Since 1941: Since 1979, when membership peaked at more than 1.5 million, UAW membership has declined to 464,910 members, according to the union’s annual report filed on March 27. UAW membership in the auto industry is expected to shrink even further because of voluntary separation programs offered by the Big Three U.S. automakers. Having had no success in organizing auto workers at foreign “transplant” automakers like Toyota, the UAW has turned to other industries to grow its membership. The union recently won three recent elections in the gaming industry in Atlantic City, Detroit and Connecticut. More than $110 million has been diverted from the UAW strike fund to general funds for use in organizing.

Cintas Strikes Back: Since 2003, Cintas Corporation has been subjected to a “corporate” organizing campaign by UNITE HERE and the Teamsters. According to Cintas, through that campaign the two unions have conspired to bring unbearable public, social and financial pressure on the company by repeatedly portraying in a misleading or negative light the company’s operating practices; unlawfully interfered with its existing and prospective business relations; knowingly and maliciously published misleading, negative and damaging information about the company to financial analysts and the general public; and interfered with its annual shareholder meetings. Cintas has now filed a RICO lawsuit alleging UNITE HERE and the Teamsters have conducted an extortion campaign as part of their efforts to organize the company’s 17,000 laundry workers. The suit points to a two-step process to extort concessions from Cintas that would give the two unions voluntary recognition of its employees. First, the unions inflict economic damage on the company until it is forced out of business or agrees to union demands. Second, the unions will cease only after obtaining company consent for bargaining neutrality and organizing by card check agreement.

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