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For the Good of the Union

by Leviticus Argos

It's a century-old question, really. What is the good of the Union? Here's a little story that illustrates the dilemmas that face two modern unions and you can decide whether either Union did good. It is a story that "pits" these two Unions against each other over a dispute regarding the rights of the worker, the National Labor Relations Act, contractual obligations, and plain old integrity. In the end, the two Unions kissed and made up. . .leaving the workers bleeding from collateral damage.

The tale begins really in the middle because it is the middle that illustrates the tragedy of the beginning and the (as yet) undetermined end. One Union, the Carpenters Regional representative in the four corners area once known as the Rocky Mountain Regional Council of Carpenters (RMRCC) was the Employer in this case. They're now called the Mountain West Regional Council of Carpenters (MWRCC) and it was that change which is part of the controversy that has already netted one NLRB decision against them as an employer engaging in essentially anti-union activity.

You heard right. A fairly substantial Union (with over 4000 members across three states) was found engaging in actions that violated the National Labor Relations Act. To cover up their actions, they've agreed to a voluntary compliance order to pay out some back-pay as recompense but they're not really being required to tow the line as other employers would, and that's where this story comes in.

Unions are employers, too, sometimes. The question becomes, then, when they are employers should they be held to the same basic standards and labor law which they legislated through their representatives in Congress? Apparently the answer is "almost."

Here's what happened: The RMRCC employed seven members of the Office and Professional Employees International Union Local #5. Sometime in the past year, they started making excessive demands for more work from one of the Senior union members. That member had been asked to do this before and under the guidance of a previous Business Agent from OPEIU, was given adequate compensation for the increase in duties. However, times change and the new Business Agent for OPEIU chastised the member for expecting increased compensation for increased duties. This new Business Agent wanted the employee to either refuse to do the work and thus allow a new position to be created for a new Union employee, or to call her to begin the negotiation process. At the same time this was happening, that Union employee (due in part to the increased stress of the situation), developed some debilitating health problems: hypertension, medical/clinical depression, insomnia, chronic back pain, and substantial weight gain. The employee, concerned that he couldn't work full time doing even the work he'd already been retained to do, utilized the Leave of Absence clause in the current contract to address these issues under the guidance of his physician. Although the employee did not at the time consider himself disabled, the medical conditions were sufficient to warrant direct attention. Since he worked for a Union and had a Union backing him, he really didn't think there would be any problems.

He couldn't have been more wrong.

Reluctantly, the Employer granted the Leave of Absence, insisting on periodic reports regarding the status of the employee and even trying to get that employee to come in during the Leave to take care of projects that no one else could complete (none of the other OPEIU staffers had the skills or job experience). After helping the Employer a couple of times, the employee was advised by his new Business Agent to refuse to go back to work until the Leave was over. The employee, though, did advise the RMRCC (remember, these guys are UNION) to contact OPEIU for a temporary replacement. OPEIU, however, could not supply the employer with a sufficiently skilled individual to perform even just one of the major tasks needed during the Leave. The RMRCC asked the employee again for advice on what to do to get his job covered and he advised contacting a non-Union temp agency for assistance. He reminded the RMRCC that this temporary person would probably be required to pay associate dues to OPEIU and the RMRCC acted offended that such a remark should be made. After all, they were a Union, they understood the rules.

Within one month, RMRCC hired the temporary employee as a permanent replacement for the temporarily disabled employee. Of course, they didn't tell anyone they'd done this. (At least that's what OPEIU is saying. The contract in force at that time required they be notified if the temporary was going to be retained and the Union steward asked that new Business Agent several times if anything had been done about it but was never given a definitive answer). It took several months of digging for this reporter to find out about what happened with that temporary because the Employer paid him "under-the-table", carefully keeping him off the payroll records when he was "converted" from his employment through the temporary agency to the employment of the RMRCC. Now why would they do that?

The answer to that question becomes apparent in the rapid-fire sequence of events that followed and it is these actions that are probably the most suspect from the RMRCC. As you read the following sequence of events, always keep in mind that the RMRCC is a Union.

As life is full of funny coincidences, one major one was about to take place: the contract between these two entities (RMRCC and OPEIU) was about to become due. The Business Agent contacted her Steward at the RMRCC and mentioned the need to begin the process of notifying the Employer (RMRCC) of any changes they'd like to make to the new contract. The Steward called the other unit members together for an informal unit meeting to run through the contract and ask for suggestions and to suggest everyone review the contract prior to an upcoming formal meeting within a few days. Only four of the seven unit members deigned to show up to that meeting even though it was held during a delayed lunch break at the RMRCC offices (in the lunch room, actually). The four that attended were the four most Senior members of the OPEIU staff, including the employee that was out on a Leave of Absence. Within one month, three of those individuals would be terminated.

At least three times during this meeting, officers from RMRCC interrupted to find out what was going on. In a "finding" by the NLRB, the RMRCC was found to have violated several elements of the NLRA by these actions. One of the officers even tried to tell the employees they couldn't meet on company property or during company hours. These violations only netted them a slap on the wrist (they had to post a little sign in the break rooms to tell the remaining employees that they couldn't do those things). Remaining employees?

That's where this story gets juicy. Rapid-fire here is the sequence of events that took place over the next three weeks after that unit meeting: Next morning, the lone female member present at that unit meeting was taken to breakfast by the same individual that insisted the unit couldn't meet on company property. The following Monday (that meeting had been held in the middle of the week) the RMRCC attempted to terminate the employee out on a Leave of Absence. Two days later, the RMRCC attempted to terminate one of the other attendees at that meeting (the assistant to the employee on a leave of absence). Within three weeks, all three male attendees at that unit meeting to discuss upcoming contract negotiations were gone, terminated, (almost) history.

Here's what the Employer, a Union, says about why they got rid of those senior employees: We changed our name and we're a new Company! The positions no longer exist. We had to do it because we reorganized into a new entity and some of the work needed to be sent somewhere else.

When asked, they admitted that they are still a Carpenters' union and they still represent Carpenters and their contracts with their Companies are still valid; it's just the contract with OPEIU that's being tossed aside.

Actually, within two months, they negotiate a new contract with OPEIU. The four remaining OPEIU staffers (the one senior member and the three that didn't attend the meeting) vote unanimously to approve a new slightly altered contract. (The new contract was essentially the same except for two sections: the Seniority section and the Leave of Absence section. Under analysis, there is no Seniority for anything but vacations now. Language that once stated "shall" has been replaced with a useless phrase saying "consider".) This new contract becomes important later because, you see, the NLRB considers this new contract to be valid when determining how to approach the unlawful terminations of two of those three members of the bargaining unit. And, since it looks like they would have been fired anyway, then the compensation for their unlawful firing will only go from the date they were unlawfully fired to the date the new contract takes affect. . .a contract they weren't allowed to vote on, they weren't allowed to discuss, a contract that is nothing like the one discussed in that initial unit meeting where only one of the current employees was present. . .the one taken to breakfast.

Is that the spirit of Union brotherhood?

Here's the details of what went on behind the scenes:

The first thing you should notice is that the first two terminations were attempts to terminate. The Employer was unsuccessful in each of those attempts to violate a fairly straight-forward contract with fairly standard Union language regarding Seniority rights. They weren't allowed to terminate Senior skilled employees for no readily apparent reason. In the first case, they tried to terminate an on-Leave employee by stating that his job had once again been split into two separate jobs (once again because it had originally been two jobs before they found out he could do both and then they dumped the work on him; this was the work that was done under a previous Business Agent and he had been compensated for the increase in duties). Now, he wasn't needed anymore to fulfill either one. With the help of the Steward and in the presence of the Business Agent (who hardly said a word), the Employee used the current contract to fight off the unlawful termination attempt. It is important to remember at this point that the temporary employee has already been converted to the employment of the RMRCC but only they knew about it. They haven't told either OPEIU or the affected employee that the temporary has been hired. They don't reveal it during this meeting either. In the end, all parties agree that the Employer cannot terminate a Senior employee who has the skills to perform duties in that office. (Also remember, this is the most senior OPEIU member on that staff; he's the only one that has been there more than three years, actually).

As for the second attempt at termination: the RMRCC claimed again that it was because now this position was being dissolved and the work no longer existed. Again, with the help of the Steward and the advice of the absent employee, this termination attempt was thwarted. In e-mail correspondence, the Chief Executive officer of RMRCC admitted their blunder and acknowledged that the current contract did not allow them to terminate Senior employees when their jobs ostensibly dissolved. This correspondence acknowledged that the such affected employees had to be given work elsewhere should they desire it (these are called "bumping" rights in Union terms; it simply means that less-senior employees are terminated first as long as more-senior employees have the skills to perform work within the company). Since this employee had seniority over three other members of that staff, he had the right to bump any one of them out of their jobs. Though this might sound harsh, it really is simple. First, keep in mind that one of those other employees had only been hired in the last three months and the other two were there less than six months; the affected employee was approaching his one year anniversary. Second, keep in mind that although the Company was saying the work was going to go away, it wasn't. The work was just going to be given to someone else, someone less senior, someone who would have the fear of termination hanging over them should they refuse and who would know that there was nothing that could be done about it if the Employer was allowed to terminate the Senior employee so easily. But they weren't allowed to. In the end, this employee decided, however, to resign when offered a substantial sum of money as a severance package. He didn't want to fight the Union's battles for them. He didn't think the Union was worth it. During the grievance process, even after the Employer agreed that they had screwed up, the Business Agent allowed them to suddenly change their reasons for terminating the Employee to issues that were never in evidence. This greatly distressed that employee. Then, even as the Employer agreed they had violated the contract, the Business Agent negotiated a one week suspension without pay for the employee after he'd already been off work for several days due to the Companies screw-up. When the employee protested, the Company again had to admit they couldn't do this (the Business Agent never did admit her mistake) and asked the employee if he'd take a severance package to just leave. After seeing the level of animosity that was apparently directed at him, he accepted.

After several weeks of prodding by the two unlawfully terminated employees, OPEIU finally filed an Unfair Labor Practice (ULP) against RMRCC. The two employees also collaborated on the filing of another ULP delineating the belief that part of the reason they were terminated grew out of their Union activities (the Leave of Absence, contract negotiations, preventing unlawful terminations under the original contract, etc.). The NLRB basically stated in their decision that they would like the Employer to comply with the terms of their contract. The NLRA did not allow them to just walk away from an enforceable contract without due notice and they gave none. They couldn't. The time frame for giving a notice would have meant that the very employees they wanted to get rid of would have been able to vote on the contract in an office drastically reduced in size. . .meaning they would have had a majority for the vote. (Remember, they reduced the staff size from 7 to 4; if they got rid of three of the less senior employees, that would have left the four people who had been in that first meeting). Of course, this doesn't take into account the individual they paid "under-the-table". Or the new "part-time" employees they've been retaining to help them with the work-load. Or the non-Union subcontractor they've hired to do the "extra" work they wanted to dump on the original employee that started this whole thing in the first place.

Here's where it stands. The Employer has "voluntarily" settled with the NLRB by offering to pay the two months salary for those employees terminated prior to the new contract being signed. This is called a "Make Whole" remedy. Usually, "Make Whole" remedies require the employees to be rehired, given back pay for the entire time they were off work, but because OPEIU signed a new contract (over the objections of those employees unlawfully fired), the NLRB isn't going to concern itself with the remaining 6 months or more). Nor are they requiring that the employees be offered their jobs back.

There are still several grievances outstanding in this case and OPEIU is putting on an outward face that they're pursuing it (though they have made all parties aware that they don't plan on going all the way to arbitration should the process send them there; they don't have the money they say although they were able to donate substantial sums to political campaigns over the last several years. . .). Armed with this attitude, the Employer has everything to gain by stonewalling the grievance process. It'll never be arbitrated so why worry about it. The Employer still faces some problems though: an ADA filing with the Colorado Civil Rights Division; a potential FMLA claim (depending on some interpretations of the Family Medical Leave Act as regards to the central control of Employees in three states and whether that adds up to liability or not).

The final question is the one first raised at the beginning of this story: What is the good of the Union if even one such errant child can perpetrate such obviously anti-union actions? I think that will all be decided if and only if they are held accountable, if and when they make it right.

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