Articles Posted in Collective bargaining

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The Portland Press Herald ran an article this week about the history of labor activism at the Portland Co. during the nineteenth century. The Portland Co. was renowned for building locomotives and there is an ongoing debate over whether to preserve its former site as a historic landmark.

The article in the Press Herald discussed the efforts of workers at Portland Co. to force the company to institute a 10-hour workday, instead of the 12-to-16 hour workdays common during that time. These workers organized to press management for a 10-hour workday and went on strike as a result. They also urged the company to abolish the “store order” form of payment, which was a system where the company paid workers in credit at the company store. This system lessened the pay of workers and created a sense of bondage to the company. The workers’ efforts did not bear fruit right away but eventually the Portland Co. instituted a 10-hour workday and did away with the “store order” system.

Today, organized labor is on the decline. Only a small percentage of the American workforce is unionized. In 1983, the union membership rate in the United States was over 20% but in 2014 the union membership rate was only a little over 11%, and it was just 6.6% for private-sector workers. At the same time that organized labor has declined, many workers have come to believe that employers should offer more benefits such as paid family leave. Workers’ wages are also stagnating. Many employers use tactics such as misclassifying workers as exempt from overtime or as “independent contractors” in order to depress wages. Other employers pay merely the federal minimum wage which has gradually fallen, when adjusted for inflation, over the past 40 years.  If more workers today organized into unions, like the workers at Portland Co., could they get employers to provide additional benefits and higher wages? Unless more workers come together to form unions, we may never know.

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Yesterday the Washington Post ran a story about a hotel maid who a reporter had interviewed for an article on the minimum wage. The reporter spoke to the maid at the suggestion of the maid’s boss. The maid had told the reporter that she looked forward to receiving a $0.25/hour pay raise because her state, Arkansas, was going to raise the minimum wage. The maid contacted the reporter after he published the story and told him that her boss had fired her because of what she said to the reporter. Her boss did not think that a minimum wage increase was a good idea.

As unfair as this sounds, the maid’s termination was probably legal because of the at-will employment rule. Under the at-will employment rule, it is presumed that employers can fire employees for any reason whatsoever, no matter how unfair. There are exceptions to the at-will employment rule, such as laws that prohibit certain types of discrimination, but many cases of unfair employment practices do not fall under any of these exceptions to the at-will employment rule.

In the case of the hotel maid, she claims that her boss fired her because she spoke to a reporter and expressed an opinion contrary to the opinion of her boss. If the maid had worked for a government agency, the First Amendment may have protected her from this type of retaliation. But the maid did not work for a government employer; she worked for a private company. And the First Amendment protects people from government action, not the actions of private companies.

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The Town of Dixfield and the Teamsters Union are engaged in a dispute over Dixfield’s treatment of long-time employee Darlene Brann, who served as an administrative assistant in Dixfield’s Public Works Department and the Shop Steward for the union. According to the Teamsters, Dixfield has spent over $29,000 in legal fees in an effort to eliminate Ms. Brann’s position. The Teamsters allege that Dixfield went so far as to negotiate with the Mexico Water District, behind the union’s back, to subcontract Ms. Brann’s duties to the Mexico Water District and on December 9 notified Ms. Brann that her employment with the Town of Dixfield would be terminated as of December 31.

The Dixfield Town Manager, Linda Pagels-Wentworth, has said that Maine law prohibits her from discussing the town’s pending negotiations with the Teamsters and, so, she refused to speak to the media about those ongoing negotiations. She did say, however, that removing Ms. Brann from her employment with the town “made fiscal sense” because it was “an opportunity for regionalization.

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firefighter.jpgEarlier this week, the Maine Supreme Court held that the City of Augusta could not evade its obligation under a collective bargaining agreement (CBA) to pay for retired firefighters’ health insurance. The City had argued that it could stop paying the premiums on this insurance because the CBA had expired. The Maine Labor Relations Board rejected this argument and so did the Court. Relying on the well established “static status quo” doctrine, the Court held that the City had to continue to comply with the expired CBA while a new CBA was being negotiated.

“This case was a dispute over whether certain items in the contract continued post-expiration,” said Douglas L. Steele, the attorney who represented the firefighters’ union. “The Maine Labor Relations Board decided they do. If management could withhold something, it would put a lot of pressure on employees. The static status quo is designed to say you’re negotiating and you both need to play by the same set of rules to get an agreement.”

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In recent weeks, a Maine-based trailer manufacturer, ALCOM, and Maine’s largest medical marijuana company, Wellness Connection of Maine (WCM), have reportedly faced accusations that they retaliated against employees who tried to organize labor unions. Complaints have been filed against both employers with the National Labor Relations Board. The complaints allege, among other things, that the employers fired employees because they tried to organize unions.

With respect to ALCOM, a group of employees began to meet earlier this month to discuss organizing a union. Shortly afterwards, ALCOM fired four employees who attended those meetings as well as a fifth employee who supported the formation of a union. “This is a clear example of an employer firing people for union activity and trying to create a climate of fear in the workplace when workers are trying to organize,” said Matt Schlobohm, executive director of the Maine AFL-CIO. ALCOM, of course, denies any wrongdoing.

With respect to WCM, the alleged retaliation arose on the heels of the Maine Department of Health and Human Services (DHHS) citing the company for 20 state code violations. DHHS discovered the code violations when it conducted a surprise inspection after it received information from a whistleblower who worked for WCM. In a statement issued by the Maine AFL-CIO, one of the workers who claims that WCM retaliated against her for union organizing activities, Barbara Heap, said “for months me and my co-workers were forced to break the law as a practice of business at WCM. When we took a stand and joined together to address our health and safety concerns, we were intimidated and retaliated against.” WCM, like ALCOM, denies any wrongdoing.

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Today, the Maine Legislature’s Labor, Commerce, Research and Economic Development Committee voted down so-called “right to work” bills that would hamper unions’ ability to advocate for Maine workers. The bills would permit employees, both public and private, to reap the benefits that unions obtain for them without requiring them to pay dues that are necessary for the unions to operate. Governor LePage and some Republicans in the Maine Legislature have championed these bills arguing that they would make Maine more business friendly.

Mike Williams, a firefighter from South Portland who was in Augusta for a news conference regarding these bills, reportedly said right-to-work legislation “will make it harder for firefighters like myself, nurses, snowplow drivers, corrections officers and other hardworking public employees to establish safe working conditions for themselves and safe communities for all of us. Putting hard-working public service workers at risk will make it harder to find and keep the best people for these jobs. The fact is this governor was elected to work on creating jobs but instead he’s attacking working people.”

Although unions have had success in improving the working conditions of employees, union membership is at all-time low levels. In 2012, the percentage of American workers that belonged to a union was just 11.3%. These so-called “right to work” laws would further weaken unions and further inhibit workers’ ability to collectively bargain for better working conditions.

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The Maine State Employees Association (MSEA), which represents employees of the State of Maine, will resume negotiations with the State this week in an attempt to reach an agreement on a new collective bargaining agreement (CBA). The last CBA expired about 18 months ago but remains in effect until the MSEA and the State reach a new agreement.

During the past 18 months, the LePage administration tried to eliminate “fair share” requirements which prevent State workers from free riding on the benefits the union attains for them by deciding not to pay union dues. Eliminating the “fair share” requirements probably would have led to a reduction in the MSEA’s power to advocate for its members. The LePage administration failed to gain sufficient support among lawmakers for its desire to eliminate “fair share” and the State is reportedly no longer pressing this issue during negotiations.

Among other things, as part of these negotiations, the state is seeking to eliminate pay for union members when they go to their annual conventions or attend monthly meetings. It also wants to reduce the amount of interest paid to employees who are reclassified into higher paying jobs. From the MSEA’s perspective, Chris Quint, the MSEA’s executive director, points out that “we’re now going on four years where state employees have not had a pay raise.” He has also stated that workers who perform tasks beyond their classifications should receive additional pay for their extra effort.

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In Michigan this year, Proposition 2 will give voters an opportunity to amend the Michigan state constitution so that it protects the collective bargaining rights of public and private employees. Labor unions spearheaded the effort to place this issue on the ballot out of fear that anti-union legislation in nearby states like Wisconsin would spread to it. Four states have enshrined collective bargaining rights in their constitutions but this is the first time voters could do it through a ballot initiative.

“Collective bargaining gave us the 8-hour workday, weekends, and health care benefits — things that we all rely on but sometimes take for granted,” says Sierra Club Executive Director Michael Brune, who supports the proposed constitutional amendment. “It’s important that we pull together to build on that progress and give working families the opportunity to provide better lives for their children, and Prop 2 does just that.”

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The National Labor Relations Board (“NLRB”) has issued a rule requiring most private sector employers to hang a poster up in their workplaces which notifies employees of their rights under the National Labor Relations Act (“NLRA”). Most employers will likely hang these posters amongst the other posters they’re already required to hang up in the workplace. Among other things, the poster will inform employees that they have the right to organize a union to negotiate with their employer concerning wages, hours, and other terms and conditions of employment. According to the federal Bureau of Labor Statistics, as of 2010, only 6.9% of private sector employees were unionized. To the extent that low number is attributable to a lack of understanding about the right to unionize, this new NLRB rule could result in more employees forming unions.

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On August 29, 2011, the Kennebec County Superior Court ruled in favor of the Maine State Nurses Association (MSNA) and affirmed an arbitration award in favor of MSNA member Krista McCormick. Ms. McCormick worked as a nurse at Down East Community Hospital (DECH) until she was terminated on September 11, 2009. In accordance with MSNA’s collective bargaining agreement (CBA) with DECH, MSNA filed a grievance on behalf of Ms. McCormick contesting the termination. The grievance process led to an arbitration where a neutral arbitrator, who serves a role similar to a judge, found that DECH terminated Ms. McCormick without just cause in violation of the CBA. Consequently, the arbitrator ordered DECH to reinstate Ms. McCormick and compensate her for lost wages and benefits. This would’ve been a relatively straightforward case except for the fact that a court-appointed receiver, Eastern Maine Healthcare Systems (EMHS), was in control of DECH at the time of Ms. McCormick’s termination.

After the arbitrator ruled in favor of MSNA and Ms. McCormick, EMHS refused to abide by the arbitrator’s decision. So, MSNA had to file a lawsuit in court to enforce the arbitrator’s decision. EMHS argued that the court could not enforce the arbitrator’s decision against DECH because EMHS was the entity that terminated Ms. McCormick, not DECH. EMHS further argued that the court could not enforce the arbitrator’s decision against it because, as a court-appointed receiver, it was immune from MSNA’s lawsuit.

If EMHS had prevailed with its arguments, it would have deprived Ms. McCormick of any remedy for her wrongful termination. After thoroughly evaluating the various complex legal arguments that EMHS made, and MSNA made in response, the court rejected EMHS’s position and ruled in favor of MSNA and Ms. McCormick.