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In this issue:

News and Analysis

The Good, the Bad, and the Ugly

News and Analysis

Mighty Short Strike. The United Auto Workers and General Motors reached a tentative agreement on Wednesday, September 26, ending a nationwide strike that had begun only two days earlier, and (briefly) affected about 80,000 hourly workers. Details of the deal are unknown at this time, but it is clear that GM achieved its top priority by shifting most of its $51 billion unfunded retiree health care obligation to a voluntary employee benefit association. The association would be run by the union after initial funding by GM. Sources also say that GM made no specific commitment to maintain current levels of production in its U.S. plants. Now the UAW must decide whether Ford or Chrysler will go next in negotiations.

A bit of strike trivia: The last UAW strike against GM was in 1970, and lasted 54 days.

You Dirty Rat! The New Jersey Appellate Division has upheld a criminal fine and court costs assessed against an official of the International Brotherhood of Electrical Workers over an inflatable rat. The IBEW, accusing a Gold’s Gym in New Jersey of unfair labor practices, displayed a 10-foot-tall balloon in the shape of a rat in front of the gym. The gym called the local police, who asked an IBEW official about the balloon.  The union removed the balloon, and the police left. After about 45 minutes, the union put the rat balloon back up. The police returned and issued a summons to the senior IBEW official at the scene, charging that the inflatable rat was prohibited by the municipal sign ordinance. At trial, the union official was found guilty of violating the ordinance, fined $100 and charged $33 for court costs. The matter was ultimately appealed to the New Jersey Appellate Division, which upheld the conviction and penalties.

Historically, a union’s use of a rat is considered confrontational conduct intended to persuade third persons not to do business with the employer and a signal that there is an invisible picket line they should not cross. However, the NLRB General Counsel has advised that the use of a rat in the form of an inflatable balloon or a costume, in connection with handbilling, does not violate the NLRA and, accordingly, is protected activity. On the other hand, an administrative law judge has determined that the use of inflatable rats in addition to handbilling to promote a secondary boycott is unlawful on the ground that the combination constitutes a “surrogate picket.”

In State v. Deangelo, the New Jersey court, after finding that the rat balloon was clearly prohibited by the ordinance as a “balloon” or “or other inflated” sign, held that the ordinance was not preempted by the NLRA because it applied to everyone and did not curtail the ability of the union to handbill. Moreover, the ordinance was content-neutral, narrowly tailored, and did not prevent communication of the union’s message, and therefore did not violate the First Amendment.

Take that, you dirty rat!

Foreman’s Statement Did Not Create Impression of Surveillance.  It is an unfair labor practice for a manager or supervisor to spy on employees’ union activities. In fact, it is unlawful to even create the impression that such surveillance is taking place. Determining whether an employer actually spies on employees engaged in union activity is usually straightforward. On the other hand, determining whether an employer has created an impression of surveillance requires an analysis of what the supervisor’s statement “reasonably” suggests. 

Sunshine Piping, Inc., was an “impression” case. A supervisor told employees that he had told the owner that “employees had been to the union hall” and that “about 80 percent of the shop” had signed authorization cards. A majority of the National Labor Relations Board found that neither statement created the impression that employees were under surveillance.

The first statement was lawful because employees soliciting authorization cards in the employer’s parking lot were wearing “organizing committee” pins. Therefore, the Board reasoned, the foreman’s statement may have been based on these observations rather than surveillance. Similarly, the “80 percent” comment appeared to be based on observations of an openly conducted card drive. Board Member Liebman dissented, pointing out that by professing to know the precise, quantified percentage of employees who supported the union, the statement would “reasonably lead employees to believe their organizing activities were under vigorous surveillance.” 

Employee Complaint Procedure Is Lawful Despite Employee Involvement.  Effective internal complaint resolution procedures and employee involvement reduce complaints to unions and government agencies, and contribute to employee morale. However, employers must establish such procedures according to NLRB guidelines; otherwise, the procedure might be considered an employer-dominated “labor organization,” in violation of §8(a)(2) of the National Labor Relations Act.

In Syracuse University and Teamsters Local 317, the University, in the midst of an organizing campaign, called attention to its complaint procedure and touted it as an effective way for employees to resolve complaints without having to pay union dues. The union countered with a §8(a)(2) charge. The Board found in favor of the University, holding that the complaint procedure was not designed to “deal with” the employer on terms and conditions of employment. The procedure, developed with employee input, had three-person panels that were convened to  consider employee grievances. One member of the panel was in management, and the other two were employees. The Board found that there was no evidence to indicate that the “management” and “employee” panel members acted as if they were on opposite sides. Moreover, the majority vote was final, regardless of whether management agreed.

What? No More Twinkies?  Interstate Bakeries Corp., maker of such products as Hostess Twinkies and Wonder Bread, announced last week that it will have to liquidate if it cannot obtain major concessions from its 20,000 union workers. IBC had filed for Chapter 11 bankruptcy reorganization in September 2004, citing rising costs, including those associated with employee benefits, coupled with declining sales. Before the filing, IBC employed 32,000 workers at 54 bakeries in the United States. Since filing for reorganization, IBC has closed nine bakeries and laid off more than 7,000 employees.

Shortly after filing for bankruptcy, IBC went through a round of negotiations with The Bakery, Confectionary, Tobacco Workers, and Grain Millers Union, and the Teamsters, the two unions representing the majority of IBC workers. (IBC has approximately 450 separate labor contracts with its workers.) According to Teamster officials, the talks resulted in concessions worth about $30 million.

But last month, under its new chief executive officer, IBC announced that it would seek additional health and welfare benefit concessions from all of its unions and close four additional bakeries as well as more than 30 related facilities in Southern California, eliminating about 1,300 more jobs. Since that time, talks between IBC and the unions have not gone well.  On September 5, after several meetings with IBC, Teamsters General President James P. Hoffa announced that the Teamsters had broken off talks after IBC refused to postpone closures in Southern California or to retreat from its proposal to cut sales commissions for route drivers. At the same time, several of the Teamsters locals in Southern California asked for authority to strike, and two days later, the BCTGM – IBC’s largest union – also broke off negotiations.

Stay tuned for developments.

It doesn’t look as if IBC’s road to recovery will be a piece of cake.

Board Upholds Employer's Refusal To Provide Union With Requested Information.
The Board has found that Disneyland did not have to provide information about subcontracting to the International Association of Bridge, Structural, Ornamental, and Reinforcing Iron Workers because the union had failed to make a showing that the information was relevant to the union’s fulfillment of its responsibility as a bargaining agent.

An employer has a statutory obligation to provide, upon request, information that a union needs for the proper performance of its duties as collective bargaining agent.  This, of course, includes the decision to file or process grievances. Where a union’s request is for information pertaining to unit employees, the information is presumptively relevant and must be provided. Where information requested is not presumptively relevant to the union’s role as bargaining representative, the burden is on the union to demonstrate relevance. Information about subcontracting agreements, even those relating to unit employees’ terms and conditions of employment, is not presumptively relevant.

In Disneyland Park the Iron Workers Union believed that the employer was subcontracting in violation of the collective bargaining agreement, but the agreement provided that subcontracting was allowed so long as it did not result in the termination or layoff, or failure to recall from layoff, of any permanent employee qualified to do the work. The union had not claimed that the subcontracting displaced any employees. According to the Board, a union must do more than cite a provision of the contract. Rather, it must demonstrate that the contractual provision is related to the matter about which the information is sought and that the matter is within the union’s responsibilities as a bargaining agent.

The Good, the Bad, and the Ugly

*Say “Ughhhhh.” The AFL-CIO has announced a renewed effort to overhaul the nation’s health care system and to make universal health care coverage a key issue in the 2008 elections.

*Ouch! The Labor Department recently announced that during the month of July, it secured four indictments and six convictions involving the embezzlement of union funds. The convictions involved officials at the United Auto Workers, the Rural Letter Carriers, the Kansas State Nurses Association, the United Transportation Union, and a former executive assistant to the secretary-treasurer of the AFL-CIO.

*Goose, gander, and all that. In connection with an on-going dispute with the NLRB General Counsel, the National Labor Relations Board Union (NLRBU) announced that it would picket a program to mark the 50th anniversary of the Board’s regional office in Newark. After a number of speakers from organized labor expressed concerns and concluding that a picket line would deter “numerous attendees” from participating, the event sponsors cancelled the celebration.  Undeterred, the NLRBU says it will picket other events that the General Counsel plans to attend.

*Sign of a unionized future? A recent Gallup Poll found that 60 percent of Americans approve of unions. Thus far, that approval rating has not translated into gains in union membership in the private sector, where only about 7 percent of the workforce is currently unionized. 
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