Labor Law Update

On March 27, President Bush announced his nominations of current member Harry R. Hoglander for a second term to expire July 1, 2008, and Peter W. Tredick, a labor attorney, to fill the spot of Edward Fitzmaurice for the National Mediation Board.

Labor Disputes

AK Steel's Middletown, OH, plant locked out 2700 of its hourly workers on March 1, having failed to reach a new labor agreement with Armco Employees Independent Federation. Although the company reported record sales in 2005, it experienced a net loss of $2.3 million due to labor costs. Temporary replacements and salaried personnel took over production duties for the locked-out workers.

On Feb. 28, members of the Service Employees International Union's United Healthcare Workers-West, which represents about 300 licensed vocational nurses, certified nursing assistants, dietary and housekeeping workers, pharmacy technicians, respiratory care, clerical, and other classifications, entered a 7-day strike at Eden Medical Center, located near San Francisco. On March 7, the hospital locked out the striking employees.

On March 27, negotiators for 3500 striking Teamsters members at Sikorsky Aircraft Corp.'s Black Hawk helicopter manufacturing plant in Stratford, CT, rejected the company's most recent contract offer, which included a ratification bonus offer of $3000 per worker, because it did not address health care concerns. Sikorsky has continued to operate the facilities using salaried employees, temporary contract workers, and Teamster-represented workers whohave crossed picket lines.

The number of major work stoppages (strikes and lockouts involving 1000 or more workers) increased to 22 in 2005 from 17 in 2004, according to figures released March 2 by the Labor Department's Bureau of Labor Statistics. The total amount of working time lost declined to 1.7 million days from 3.3 million workdays lost in 2004. The number of employees involved in major work stoppages also declined last year from 171,700 workers in 2004 to 99,700 in 2005.

Administrative & Court Decisions

On Feb. 28, the United States Court of Appeals for the DC Circuit reversed the District Court for the District of Columbia's enforcement of an NLRB subpoena because the underlying dispute was not nationwide in scope. The subpoenas related to a 1992 cease-and-desist order connected to an unsuccessful union-organizing campaign at Cooper Tire & Rubber Company. The DC Circuit stated that the federal trial court did not have jurisdiction to enforce the subpoenas because the employer and activities were located in Mississippi. NLRB v. Cooper Tire & Rubber Co., No. 04-5418 (D.C. Cir. Feb. 28).

The U.S. Court of Appeals for the Eleventh Circuit ruled on March 9 that a fired Roadway Express Inc. driver failed to prove that the Teamsters violated its duty of fair representation by assigning a biased business agent to handle his grievance and had waived his argument that he received bad-faith representation by failing to raise it before the grievance panel Bianchi v. Roadway Express Inc., No. 04-16596 (11th Cir. Mar. 9).

The U.S. Court of Appeals for the DC Circuit found on March 7, that the International Brotherhood of Electrical Workers improperly influenced a representation election by promising apprenticeship referrals to employees of an Ohio electrical contractor prior to the election, reversing the NLRB hearing officer. Although the employees accepted the referrals after the election, the Court stated that there is no bar to considering post-election conduct, and therefore the hearing officer erred in not considering the conduct. King Elec. Inc. v. NLRB, No. 04-1440 (D.C. Cir. Mar. 7).

The U.S. Court of Appeals for the Seventh Circuit affirmed a lower court's grant of Rule 11 sanctions against CUNA Mutual Insurance Society, finding that the company's attempt to vacate an arbitrator's ruling was meritless. CUNA appealed to vacate the arbitrator's ruling, claiming that the arbitrator exceeded his authority by considering collective bargaining agreement provisions that were not cited by the union in its grievance and by retaining jurisdiction to address the issue damages. CUNA Mut. Ins. Soc'y v. Office and Prof'l Employees Int'l Union Local 39, No. 05-1021 (7th Cir. Mar. 16).

On Feb. 22, the U.S. District Court for the District of Columbia permanently enjoined the Department of Defense (DOD) from implementing parts of its National Security Personnel System (NSPS), because the final rule implementing the system failed to ensure continued collective bargaining at the DOD, independent third-party review of labor relations decisions, or fair treatment of employees appealing adverse actions. AFGE v. Rumsfeld, No. 05-2183 (EGS), (D.D.C. Feb. 27).

The United Transportation Union asked a federal court on March 17 to force Burlington Northern Santa Fe Railway Co. to bargain with the union through the national collective bargaining agent for the major railroads, instead of seeking individual bargaining, on a profit-sharing proposal. The union sought declaratory judgment that compensation is an issue for 'obligatory national handling' under the Railway Labor Act and that BNSF has violated the RLA by withdrawing from national handling. United Transp. Union v. BNSF Ry. Co., No. 06-CV-00503 (D.D.C., filed 3/17/06).

On March 24, Comcast of Califor-nia/Colorado sued the city of Oakland, California regarding a new city ordinance that requires employers that hold franchise agreements with the city to sign a card-check recognition agreement with any union that requests one, arguing that the ordinance is preempted by the National Labor Relations Act and Section 301 of the Labor-Management Relations Act. Comcast of Cal./Colo. LLC v. Oakland, No. 3:06cv02163 (N.D. Cal., complaint filed Mar. 24).

On March 30, the NLRB issued a press release inviting interested parties and organizations to file amicus briefs in case pending before the NLRB involving a neutrality/card-check agreement and whether an employer and a union can lawfully negotiate an agreement on the conditions of union organizing, card-check recognition, and the terms of future collective-bargaining agreements. An administrative law judge found that the neutrality/card-check agreement in the case did not constitute pre-recognition bargaining. Dana Corp., NLRB No. 7-CA-46965, notice Mar. 30.

Crime & Corruption

The New York City Central Labor Council, an AFL-CIO umbrella organization for 375 local unions in the city of New York that represents 1.5 million workers, is the subject of a federal criminal investigation regarding the award of certain city streetlight contracts.

Other Developments

AFL-CIO-affiliated unions committed on Feb. 28 to engaging 500,000 union stewards in member education to address the 'current crisis in collective bargaining and organizing rights' and to 'mobilize an army' for labor's goals.

The AFL-CIO Executive Council adopted rules on March 1 which would allow independent unions to directly affiliate with the AFL-CIO even though they do not qualify for a national charter. The 'Unity Partnerships' program will allow independent unions to participate in the federation and receive the benefits and protections of being part of the AFL-CIO by paying a 'unified per capita tax' of $3.50 per member, per month.

The AFL-CIO has issued nearly 900 solidarity charters to 516 locals of five unions that disaffiliated from the federation and are now members of the Change to Win federation. The charters allow locals of unions that have disaffiliated at the national level to reaffiliate with state federations and central labor councils. According to the AFL-CIO, about half of the 1000 to 1100 locals of the Change to Win unions have rejoined the AFL-CIO.

On March 13, the AFL-CIO voluntarily dismissed a suit it had filed against the SEIU to recover $3.9 million owed in back dues when the SEIU agreed to pay the balance. The AFL-CIO has already recovered $6.7 million in unpaid dues from the United Food and Commercial Workers, the Teamsters and UNITE HERE.

The Change to Win federation plans to launch a campaign the week of April 24 targeting major industries in more than 35 cities to reach out to unorganized workers, members of the public, and politicians to gain support for the idea that the United States cannot exist without a 'vibrant middle class.' The goal of the effort is to organize 50 million workers in industries where jobs cannot be outsourced easily.

The Center for Union Facts, an organization headed by management attorney Richard Berman and opposed to card-check recognition, released a survey on March 21 that found that 75% of the general public believe secret ballot elections are the 'most fair and most democratic' voting method for organizing, in contrast to 12% who found card check was the best method.

American Rights at Work, a Washington, DC-based labor policy organization that seeks to facilitate workers' ability to form unions and supports card-check recognition, announced results of a new survey which found that 46% of workers experienced management pressure to oppose unionization during an NLRB supervised election versus only 23% of respondents reporting such pressure during a card-check organizing campaign.

The Labor Law Update was prepared by the Labor and Employment Relations Department of Winston & Strawn LLP.

Legislation & Politics

Members of the AFL-CIO Executive Council approved a political budget of $40 million for the 2006 political election, the largest budget in history for a mid-term election. The program will attempt to mobilize 11.4 million union households in 21 'battleground' states, focusing on 40 House races, 15 Senate races, and the governors' races in California, Florida, Iowa, Michigan, Minnesota, New York, Ohio and Pennsylvania.

The Labor Department's Office of Labor-Management Standards announ-ced on March 7 that employers whose fiscal years end on Dec. 31 will have until May 15 to file fiscal year 2005 LM-10 forms which disclose payments and gifts made to unions, their officers, and their employees.

On March 27, President Bush announced his nominations of current member Harry R. Hoglander for a second term to expire July 1, 2008, and Peter W. Tredick, a labor attorney, to fill the spot of Edward Fitzmaurice for the National Mediation Board.

Labor Disputes

AK Steel's Middletown, OH, plant locked out 2700 of its hourly workers on March 1, having failed to reach a new labor agreement with Armco Employees Independent Federation. Although the company reported record sales in 2005, it experienced a net loss of $2.3 million due to labor costs. Temporary replacements and salaried personnel took over production duties for the locked-out workers.

On Feb. 28, members of the Service Employees International Union's United Healthcare Workers-West, which represents about 300 licensed vocational nurses, certified nursing assistants, dietary and housekeeping workers, pharmacy technicians, respiratory care, clerical, and other classifications, entered a 7-day strike at Eden Medical Center, located near San Francisco. On March 7, the hospital locked out the striking employees.

On March 27, negotiators for 3500 striking Teamsters members at Sikorsky Aircraft Corp.'s Black Hawk helicopter manufacturing plant in Stratford, CT, rejected the company's most recent contract offer, which included a ratification bonus offer of $3000 per worker, because it did not address health care concerns. Sikorsky has continued to operate the facilities using salaried employees, temporary contract workers, and Teamster-represented workers whohave crossed picket lines.

The number of major work stoppages (strikes and lockouts involving 1000 or more workers) increased to 22 in 2005 from 17 in 2004, according to figures released March 2 by the Labor Department's Bureau of Labor Statistics. The total amount of working time lost declined to 1.7 million days from 3.3 million workdays lost in 2004. The number of employees involved in major work stoppages also declined last year from 171,700 workers in 2004 to 99,700 in 2005.

Administrative & Court Decisions

On Feb. 28, the United States Court of Appeals for the DC Circuit reversed the District Court for the District of Columbia's enforcement of an NLRB subpoena because the underlying dispute was not nationwide in scope. The subpoenas related to a 1992 cease-and-desist order connected to an unsuccessful union-organizing campaign at Cooper Tire & Rubber Company. The DC Circuit stated that the federal trial court did not have jurisdiction to enforce the subpoenas because the employer and activities were located in Mississippi. NLRB v. Cooper Tire & Rubber Co., No. 04-5418 (D.C. Cir. Feb. 28).

The U.S. Court of Appeals for the Eleventh Circuit ruled on March 9 that a fired Roadway Express Inc. driver failed to prove that the Teamsters violated its duty of fair representation by assigning a biased business agent to handle his grievance and had waived his argument that he received bad-faith representation by failing to raise it before the grievance panel Bianchi v. Roadway Express Inc., No. 04-16596 (11th Cir. Mar. 9).

The U.S. Court of Appeals for the DC Circuit found on March 7, that the International Brotherhood of Electrical Workers improperly influenced a representation election by promising apprenticeship referrals to employees of an Ohio electrical contractor prior to the election, reversing the NLRB hearing officer. Although the employees accepted the referrals after the election, the Court stated that there is no bar to considering post-election conduct, and therefore the hearing officer erred in not considering the conduct. King Elec. Inc. v. NLRB, No. 04-1440 (D.C. Cir. Mar. 7).

The U.S. Court of Appeals for the Seventh Circuit affirmed a lower court's grant of Rule 11 sanctions against CUNA Mutual Insurance Society, finding that the company's attempt to vacate an arbitrator's ruling was meritless. CUNA appealed to vacate the arbitrator's ruling, claiming that the arbitrator exceeded his authority by considering collective bargaining agreement provisions that were not cited by the union in its grievance and by retaining jurisdiction to address the issue damages. CUNA Mut. Ins. Soc'y v. Office and Prof'l Employees Int'l Union Local 39, No. 05-1021 (7th Cir. Mar. 16).

On Feb. 22, the U.S. District Court for the District of Columbia permanently enjoined the Department of Defense (DOD) from implementing parts of its National Security Personnel System (NSPS), because the final rule implementing the system failed to ensure continued collective bargaining at the DOD, independent third-party review of labor relations decisions, or fair treatment of employees appealing adverse actions. AFGE v. Rumsfeld, No. 05-2183 (EGS), (D.D.C. Feb. 27).

The United Transportation Union asked a federal court on March 17 to force Burlington Northern Santa Fe Railway Co. to bargain with the union through the national collective bargaining agent for the major railroads, instead of seeking individual bargaining, on a profit-sharing proposal. The union sought declaratory judgment that compensation is an issue for 'obligatory national handling' under the Railway Labor Act and that BNSF has violated the RLA by withdrawing from national handling. United Transp. Union v. BNSF Ry. Co., No. 06-CV-00503 (D.D.C., filed 3/17/06).

On March 24, Comcast of Califor-nia/Colorado sued the city of Oakland, California regarding a new city ordinance that requires employers that hold franchise agreements with the city to sign a card-check recognition agreement with any union that requests one, arguing that the ordinance is preempted by the National Labor Relations Act and Section 301 of the Labor-Management Relations Act. Comcast of Cal./Colo. LLC v. Oakland, No. 3:06cv02163 (N.D. Cal., complaint filed Mar. 24).

On March 30, the NLRB issued a press release inviting interested parties and organizations to file amicus briefs in case pending before the NLRB involving a neutrality/card-check agreement and whether an employer and a union can lawfully negotiate an agreement on the conditions of union organizing, card-check recognition, and the terms of future collective-bargaining agreements. An administrative law judge found that the neutrality/card-check agreement in the case did not constitute pre-recognition bargaining. Dana Corp., NLRB No. 7-CA-46965, notice Mar. 30.

Crime & Corruption

The New York City Central Labor Council, an AFL-CIO umbrella organization for 375 local unions in the city of New York that represents 1.5 million workers, is the subject of a federal criminal investigation regarding the award of certain city streetlight contracts.

Other Developments

AFL-CIO-affiliated unions committed on Feb. 28 to engaging 500,000 union stewards in member education to address the 'current crisis in collective bargaining and organizing rights' and to 'mobilize an army' for labor's goals.

The AFL-CIO Executive Council adopted rules on March 1 which would allow independent unions to directly affiliate with the AFL-CIO even though they do not qualify for a national charter. The 'Unity Partnerships' program will allow independent unions to participate in the federation and receive the benefits and protections of being part of the AFL-CIO by paying a 'unified per capita tax' of $3.50 per member, per month.

The AFL-CIO has issued nearly 900 solidarity charters to 516 locals of five unions that disaffiliated from the federation and are now members of the Change to Win federation. The charters allow locals of unions that have disaffiliated at the national level to reaffiliate with state federations and central labor councils. According to the AFL-CIO, about half of the 1000 to 1100 locals of the Change to Win unions have rejoined the AFL-CIO.

On March 13, the AFL-CIO voluntarily dismissed a suit it had filed against the SEIU to recover $3.9 million owed in back dues when the SEIU agreed to pay the balance. The AFL-CIO has already recovered $6.7 million in unpaid dues from the United Food and Commercial Workers, the Teamsters and UNITE HERE.

The Change to Win federation plans to launch a campaign the week of April 24 targeting major industries in more than 35 cities to reach out to unorganized workers, members of the public, and politicians to gain support for the idea that the United States cannot exist without a 'vibrant middle class.' The goal of the effort is to organize 50 million workers in industries where jobs cannot be outsourced easily.

The Center for Union Facts, an organization headed by management attorney Richard Berman and opposed to card-check recognition, released a survey on March 21 that found that 75% of the general public believe secret ballot elections are the 'most fair and most democratic' voting method for organizing, in contrast to 12% who found card check was the best method.

American Rights at Work, a Washington, DC-based labor policy organization that seeks to facilitate workers' ability to form unions and supports card-check recognition, announced results of a new survey which found that 46% of workers experienced management pressure to oppose unionization during an NLRB supervised election versus only 23% of respondents reporting such pressure during a card-check organizing campaign.

The Labor Law Update was prepared by the Labor and Employment Relations Department of Winston & Strawn LLP.