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In this issue:

News and Analysis

The Good, The Bad And The Ugly


No Surprise – Unions Endorse Candidates Who Support Employee Free Choice Act –UNITE HERE, the Plumbers and Pipefitters, the Teamsters, and SEIU Local 1107 in Nevada, have announced their endorsements of the candidacy of Senator Barack Obama, who appears increasingly likely to be the Democratic nominee for President. As we went to press, Change to Win was also expected to endorse Obama. As a member of the Illinois and U.S. Senates, Obama marched with striking hotel workers, spoke at the founding convention of UNITE HERE and worked with the Culinary Workers in support of their recent contract demands in Las Vegas. According to UNITE HERE, “As President, Obama would sign into law the Employee Free Choice Act, an increase in the minimum wage, and affordable health care for every American.”

While not yet endorsing a candidate, UAW President Gettelfinger has urged union activists to mobilize to elect a presidential candidate who shares the goals of universal health care, preservation of U.S. manufacturing jobs and changing labor laws to help organizing. According to Gettelfinger, Senators Clinton and Obama “are both our friends and . . . will work with our union to pass the Employee Free Choice Act.”

According to Senator Edward Kennedy, “We’re going to bring it back again and again, until we prevail. And I guarantee this: we get a Democrat in the White House and the Employee Free Choice Act will be the law of the land.”

Support Grows for NLRB Rule Requiring Minority Bargaining – Joining seven other unions, The Change to Win labor federation has petitioned the NLRB to issue a rule recognizing that federal labor law requires employers to bargain collectively with a union that represents a minority of employees if they are not already represented by a union designated as an exclusive representative of a majority of the employees. The proposed rule is also supported by 25 labor law professors who believe it would “clarify the bargaining requirements of the Act” and encourage collective bargaining.

Brief, Spontaneous, Non-Coercive Interruptions of Union Organizing Not Surveillance – In Local Joint Bd. of Las Vegas v. NLRB, the U.S. Court of Appeals for the Ninth Circuit approved the NLRB’s three-factor objective test for surveillance. In 2005, the Board had redefined the test to include the duration of the observation, the employer’s distance from its employees while observing them and whether the employer engaged in other coercive behavior during its observation. Here, on two occasions, two human resources managers who were eating lunch interrupted pro-union employees who were soliciting union support in the employer’s dining room. The HR managers gave the employees management’s opinion about the union cards they were about to sign. The union argued the mere interruption of protected union activity, even to express opinions protected by the Act, makes the otherwise lawful observation unlawful. The court agreed with the Board’s conclusion that the HR managers’ “brief, spontaneous interruptions” were not coercive and that verbal interruptions of organizing activity do not necessarily violate Section 8(a)(1) of the Act.

10(j) Injunction Sought Against Successor Employer – The NLRB continues to pursue injunctive relief under Section 10(j) of the Act pending Board decisions. In Muffley v. Massey Energy Co., the Regional Director is asking a federal district court to order Massey and the former mine owner to offer interim employment to 85 former workers, to recognize and bargain with the United Mine Workers, and at the request of the union to rescind any unilateral changes in terms and conditions of employment. The administrative law judge found that Massey is the legal successor and, in 2004, discriminatorily refused to hire the predecessor employer’s union-represented workers. According to the ALJ, Massey told the applicants the mine was non-union and then moved employees from other subsidiaries and hired trainees who had no previous mining experience to keep from hiring all but 20 former employees – but no union officers or shop stewards.

In support of the injunction, the union argues that it takes years to reach a final resolution in an NLRB case while workers who have been harmed by an employer’s action get no relief. “The day when these miners can walk back into that mine and reclaim their rightful jobs has drawn even closer.”

Only time will tell.

Employees Who Engage in Deliberate Falsity Lose NLRA Protection  – The U.S. Court of Appeals for the Sixth Circuit has enforced a finding by the NLRB that an employer did not violated the NLRA by firing an employee who sent the employer an unsigned complaint about a supervisor’s mistreatment of employees, but listed the name of another employee as the sender of the package delivering the complaints. In Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. NLRB, during an organizing campaign involving the United Auto Workers, three employees involved with the union became concerned about the actions of a maintenance supervisor. One of the three prepared a letter to the company president complaining about the supervisor’s unfair treatment of employees and suggested the company investigate his usefulness and impact. To avoid company reprisals, the employees agreed the letter should be transmitted anonymously. However, upon arranging for the delivery of the letter, the writer was asked to provide the sender’s name and address. He decided to list a company employee who was opposed to the union. When the employer determined who had actually sent the letter the real sender was fired for violating the employer’s published rule against falsification of documents. While an administrative law judge sustained unfair labor practice charges against the employer, the Board reversed and dismissed them. The Sixth Circuit judge agreed with the Board’s ruling, finding that the employee lost the protection of the Act for two reasons – he engaged in a “deliberate falsity,” and the activity was designed to destroy the reputation or employment of another worker.


14 Years of Board Delay – But You Must Still Pay – The U.S. Supreme Court has refused to consider an employer’s argument that it should not have been ordered to pay interest on back pay and union fund contributions in an unfair labor practice case that took the NLRB 14 years to resolve. The union filed charges in 1993 alleging the employer had made unilateral changes without negotiating to a valid impasse. A 1995 NLRB decision ordered the employer to restore employee pay rates and other employment conditions, but specific amounts were not determined until 2005. In 2006, the NLRB ordered the employer to pay more than $500,000 plus interest. In August 2007, the U.S. Court of Appeals for the First Circuit enforced the Board’s order. The court agreed that the Board “took an extraordinary length of time to resolve a relatively simple labor issue” but found the delay provided no basis to excuse the relief ordered. In its petition for Supreme Court review the employer argued, in vain, that requiring it to pay interest was “confiscatory,” “punitive,” and did not serve the purposes of the NLRA. The Supreme Court denied certioriari, so this employer is stuck.

Poetic Justice – To publicize their dispute with J. Maki Construction Co., a Chicago company that employed non-union carpenters, the Carpenters union distributed handbills that contained the following limerick:

There once was a man named Maki,
who didn’t want you to know his houses were crappy.
If my homebuyer has windows that leak,
they won’t take a peek,
and see the whole house is crappy.
So said a man named Maki.

The contractor sued the union contending the limerick was defamatory – suggesting professional incompetence. A jury agreed and awarded Maki $2.25 million in punitive damages and directed three union organizers to pay amounts ranging from $22,500 to $45,000. The Appellate Court of Illinois reversed. The judge acknowledged that “delving into the meaning of the word ‘crappy’ was a dirty job for any court,” but found that the use of the term “crappy” did not, as a matter of law, imply anything more than a non-actionable opinion and was here used as “rhetorical hyperbole.” In keeping with the facts, the judge concluded:

There once was a union
that called plaintiff’s work crappy.
This made plaintiff quite unhappy;
at trial, the jury filled plaintiff’s purse;
but alas, on appeal, we must reverse.

Depends Upon Your Perspective – To employers, the possibility that Robert Battista may again serve as Chairman of the NLRB is welcome news. However, the re-nomination of Battista will face strong opposition in the Senate. Senator Kennedy, who chairs the Senate Health, Education, Labor and Pensions Committee, has stated, “It’s unbelievable that President Bush would re-nominate Mr. Battista to the Board, after he led the most anti-worker, anti-labor, and anti-union Board in its history.

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