EXECUTIVELABOR SUMMARY EXECUTIVE CHAIR, LABOR RELATIONS PUBLICATIONS EDITOR CHIEF MARKETING EDITOR PRACTICE GROUP Robin Shea OFFICER Bob Lemert Cliff Nelson, Atlanta, GA Winston-Salem, NC Victoria Whitaker Atlanta, GA Steve Schuster, Kansas City, MO Atlanta, GA Atlanta • July / August 2009 Asheville • IN THIS ISSUE Austin • News and Analysis Birmingham Beware of NLRB Nominee Becker, Chamber of Commerce says • Union must give hospital 10 days’ notice of workers’ refusal to work Boston voluntary overtime • D.C. Circuit nixes employer-friendly NLRB ruling on non-work solicita- Chicago tions • “Full capacity” language in contract comes back to bite steel company Columbia • The Good, the Bad and the Ugly Fairfax NYC Carpenters Union leaders are nailed for bribery scheme that • cheated union members Greenville Walmart Canada seeks to stop union’s “look-alike” anti-Walmart web- • site Jacksonville Back in the USA, unions join forces to increase pressure on Walmart. • “If you thought we were a pain before . .” Kansas City UNITE HERE/Workers United “divorce” draws employer into criminal • court Lakeland Just when you thought it was safe to fl y again... • Los Angeles County NEWS & ANALYSIS • Beware of NLRB Nominee Becker, Chamber of Commerce says. – The Senate Macon has begun its four-week recess without taking any action on President Obama’s • three nominations for the NLRB. The Democrat nominees are Craig Becker, as- Milwaukee sociate general counsel for the SEIU, and Mark Pearce, who represents unions in • private practice. The Republican nominee is Brian E. Hayes, a labor policy direc- Nashville tor for the Senate Health Education, Labor and Pension Committee. If confi rmed, • these nominees will join Democrat Board Chair Wilma Liebman and Republican Tampa Member Peter Schaumber on the Board. • Ventura County Regardless of their respective political party affi liations, the newly constituted • NLRB will be decidedly more pro-union, and signifi cant changes in Board law and Winston-Salem policy are anticipated. Although the senior Republican member of the Senate com- mittee has called for a hearing on all three nominees, such hearings have histori- cally been rare and are considered unlikely now. www.constangy.com Of particular interest is the Becker nomination. According to the U.S. Chamber Toll free 866.843.9555 of Commerce, the SEIU is one of the most aggressive unions in the United States, and “has a record of using questionable pressure tactics with the goal of forcing employers and workers to recognize unions without the democratic protection of July/August 2009 secret ballot elections.” The Chamber believes the Committee should assess whether Becker’s role at the SEIU might prompt him to push to implement portions of the Employee Free Choice Act even if it is never enacted by Congress. Becker has written that the “core defect in union election law . is the employer’s status as a party to labor representation proceedings” and believes that “employers should be stripped of any legal cognizable interest in their employees’ election of representatives.” Becker also believes employers should be banned from virtually all NLRB proceedings related to organizing elections, even in cases of unfair labor practice charges. Becker has also argued that labor’s use of intermittent strikes to resolve grievances should be protected by the Board. Ac- cording to the Chamber, “what is especially troubling” is that Mr. Becker “. appears to believe that such changes do not require Congressional approval, but could be implemented unilaterally by the Board even though they are in direct confl ict with Board precedent and numerous court cases.” Union must give hospital 10 days’ notice of workers’ refusal to work voluntary overtime. – Under Section 8(g) of the National Labor Relations Act, a union must give a health care institution 10 days’ written notice of any strike, picketing, or “other concerted refusal to work,” as well as the date and time that such action will begin. Housekeepers and linen aides at California Pacifi c Medical Center had a labor agreement providing that the Medi- cal Center could not require overtime unless there was an emergency. Accordingly, the Medical Center normally asked for volunteers. The employees’ union was the Service Employees International Union, United Healthcare Workers-West. After the Medical Center proposed a change in linen processing that the union believed would violate the con- tract’s prohibition on subcontracting, a majority of employees in the unit signed a petition protesting the proposal and authorized their shop stewards to designate one-week periods in which the employees would refuse to volun- teer for overtime or extra shifts. The petition was presented to management with only four days’ notice, and, for seven days, every employee who was asked to work overtime declined to do so. A union newsletter published the same week said that the refusal was intended as a protest of the proposed subcontracting and to expose alleged short staffi ng. The Medical Center fi led an unfair labor practice charge, and an administrative law judge found that the union violated Section 8(g) by failing to provide the full 10-day notice of its concerted refusal to work overtime. The NLRB (then-Chair Battista and then-Member Kirsanow) agreed because the union had orchestrated the refusals to work overtime as a means to pressure the hospital to withdraw its proposal. Then-Member (now Chair) Lieb- man dissented, arguing that an employee’s refusal to work overtime should be considered a “concerted refusal to work” under Section 8(g) only when the overtime is mandatory. In a decision issued August 3, 2009, the U.S. Court of Appeals for the Ninth Circuit agreed with the Board and the Medical Center. Speaking for the court, Judge Mary M. Schroeder wrote that the 10-day notice requirement “was intended to prevent disruption of patient care by giving hospitals time to plan ahead for strikes, pickets, or other work stoppages.” The union contended that because the hospital had agreed that each employee could de- cline to work overtime on a individual basis, the union could direct its members to decline to perform work on a collective basis, without engaging in a concerted refusal to work within the meaning of Section 8(g). In response, Schroeder said that there would not have been a “concerted” refusal if the employees had independently refused to volunteer for overtime. However, “[i]n this case, the Union itself called for the overtime work stoppage” and therefore the refusal to volunteer for overtime was “concerted” and implicated Section 8(g). The union also argued that it could not have given proper notice unless it knew, at the time that notice was given, July/August 2009 whether the hospital would need overtime on a particular day. The court rejected that argument, holding that the union could have provided 10 days’ notice “of the date when employees planned to begin declining overtime.” If the union had done so, the court said, “the notice would not have been rendered defective no matter how [the hospital] reacted, even if the hospital decided not to offer overtime on the specifi ed date.” D.C. Circuit nixes employer-friendly NLRB ruling on non-work solicitations. – Calling it a “post hoc inven- tion,” the U.S. Court of Appeals for the District of Columbia Circuit has overruled part of the NLRB’s Register- Guard decision, which approved an employer’s ban on all non-work-related solicitations. The NLRB had found that the company’s policy was consistent with Board and court precedent governing employee use of employer- owned equipment, such as bulletin boards and telephones. Although the company had previously allowed non- work-related solicitations by individuals, the Board found that the company could lawfully ban solicitations by a union president on behalf of the union because the latter communications were made on behalf of an organization rather than an individual. The D.C. Circuit, in Guard Publishing Co., d/b/a Register-Guard v. NLRB, disagreed. Judge Merrick Garland, writing for the court, noted that the policy itself did not distinguish between “group” and “individual” solicita- tions. Moreover, he noted, a warning to the union president said that he could not use company systems “for union/personal business,” thus “making it clear that the offense did not depend on whether an organization was involved.” Finally, he noted that the company had never invoked the distinction between groups and individuals before the unfair labor practice complaint was fi led. It is important to note that the union did not ask the court to address the Board’s ruling on the legality of maintain- ing such a policy, apparently believing that the NLRB under the Bush Administration and the D.C. Circuit were unlikely to fi nd in its favor on that issue. However, it is very likely that the Board will revisit this issue in the future and reach a different decision as President Obama’s nominees join the Board. “Full capacity” language in contract comes back to bite steel company. – AK Steel Corporation of Ashland, Kentucky, was a major supplier to General Motors Corporation and Chrysler Corporation. Devastating cutbacks by both automobile manufacturers, as well as the continuing global recession, rippled to AK Steel, which sought to shut down the Ashland plant for the last half of 2009 and lay off 750 employees. The United Steelworkers Union said “no,” fi led a grievance, took the issue to arbitration, and won. At issue was “full capacity” language that the company had agreed to in 2003 in exchange for union concessions on pension benefi ts. That language provided, in part, as follows: The Company agrees that no plant covered by this Agreement will operate its facilities at other than full capacity, except during maintenance and repair outages .