heading - alra · the one thing i will say about the uaw’s relationship with the domestic...

Ruthanne Okun,

Dan Nielsen

Heading

NOVEMBER 2003

Cadillac strikers, sit-down strike,January 17, 1937.

Center, head turned Walter Reuther,Right UAW President Homer Martin.

Photo: Courtesy Walter Reuther Library

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Ron Gettelfinger,President UAW

Mary Pollock,Employment Relations

Tom Featherstone, Mike Smith,

Walter Reuther Library

32967 ALRA Newsletter 12/15/03 3:45 PM

2 ALRA Advisor November 2003

Gettlefinger Speach Excerptsfrom the keynote address of UAW President Ron Gettelfinger.

The full text of his speech can be viewed on the ALRA website. (ALRA.org)

The one thing I will say about the UAW’s relationship with the domestic automakers — or as we refer tothem, the Big Three, is that our relationship shows just how well a partnership between an employer and aunion can work.

We see the Big Three continue to make gains in quality and productivity and we are proud to say that theyare the benchmark when it comes to safety in the automobile industry. All of this has been accomplishedbecause of — not in spite of — the partnership between those companies and the UAW.

Instead, it seems to us that the American economy, and certainly the American workforce, would be muchbetter off if all that energy, time and money could be focused on figuring out how other sectors of the econ-omy could duplicate the successful partnership that now exists between the UAW and the Big Threeautomakers.

Until the legal system can be fixed, we’ve also worked with employers to develop a better and more fair sys-tem for determining employee desires: the Card Check.

It’s a simple procedure: …

It’s a pleasure to write to youabout what’s happening inALRA right now, because a lotof exciting and worthwhilethings are starting to cometogether. The year for ALRAactivities runs from one annualconference to the next, and thisyear is bookended by the real-ization of one great conferenceand the promise of another.

Detroit is viewed as the classic labor town and in the lastweek of July it lived up to its billing. We kicked off theconference with an in-depth study of labor relations inorganized professional sports – we went to a Tigersgame on Saturday night. From there, the conference wasa cascade of highlights, from a Sunday morning presen-tation on the labor history of that history rich city, toMonday with perhaps the finest Advocates’ Day pro-gram in memory featuring big picture speeches by UAWPresident Ron Gettelfinger, nationally known manage-

ment attorney Harold Coxson,and a troika of leading govern-ment neutrals – NLRB ChairRobert Battista, FMCSDirector Peter Hurtgen andFLRA Member Carol WallerPope. Tuesday and Wednesdayshowcased the talent within theALRA family, as theProfessional DevelopmentCommittee organized training

sessions that rank with any I’veseen in 22 years in the busi-ness. Scot Beckenbaugh andLance Teachworth richlydeserve the accolades theyreceived for the general pro-gram, while Jaye Zanta, MaryStevens and Reg Pearson con-tinue to set a seemingly impos-sibly high standard for the

President’s ColumnDan Nielsen

Harold CoxsonDan Nielsen

Mary Stevens

32967 ALRA Newsletter 12/12/03 11:36 AM

November 2003 ALRA Advisor 3

training – a standard they thenexceed with each successiveconference.

ALRA has no staff, and therunning of a successful five dayconference is an incrediblyinvolved undertaking. Thesmashing success of the Detroitconference is attributable to thehost committee headed by thetireless Ruthanne Okun andher staff on theU.S. side of theriver, and BruceJanisse, admirablyupholding the hon-our of the Windsorside. Ruthanne andBruce orchestratedthe efforts of alarge team drawnfrom the Michigan

agencies, the NLRB, and the OntarioMinistry of Labour to create a seamless con-ference – they not only made the buses run

on time, they man-aged to transform the DetroitInstitute of Art into ALRA’sprivate dining hall. Their workled to a conference that wasgenuinely memorable in everyrespect, from the smallestdetail of registration to thebiggest name speaker on ros-trum.

The other bookend of ALRA’syear will be our meeting next summer in Halifax, NovaScotia. The Executive Board met in Halifax in Octoberto begin planning for the conference. As a first time vis-itor, I had expected to be impressed. I can only say thatthe city and the region are even more beautiful andcharming than I had expected, and the meeting facilitiesare close to perfect. The conference hotel is in the heartof the historic district and the only problem I anticipateis getting people to pay attention to the speakers whenthe view of the bay from the meeting rooms is so love-ly. My concerns about that are reduced by the fact thatProgram Co-chairs Jim Breckenridge and Les Heltzer

and their committee members have begun to construct asubstantive program that should hold the attention of

even the most seasoned confer-ence goers among us. The off-time during the week will beslightly less programmed thanusual, as Arrangements Co-ChairsSheri King and Ken Zwickerhave wisely determined to bal-ance the planned events withallowing folks to take full advan-tage of the activities and attrac-tions that lie a few steps outsidethe hotel doors.

While it is early, some of the sub-stance of what we will do in Halifax is already known.In my speech after the banquet in Detroit, I spoke of themajesty of what we do – the notion that we are the gov-ernment, and that means more than being some ADRfirm, or some set of private arbitrators, or even just somelawyers who happens to temporarily be on the publicpayroll. It is a higher calling and a greater responsibili-ty. On Tuesday morning of theHalifax conference, we willbegin to more fully explorewhat that means. At that time,we will hear and debate theinaugural report of theNeutrality Committee appoint-ed by Bob Anderson last year.This represents the beginningof a long term project to articu-late what it is we mean by a“neutral” government agency.The effort is being headed by Past President JohnHiggins. The project is more fully described elsewherein this issue of the Advisor, and I will not go into anygreat detail here, other than to say it is as important an

PRESIDENT’S COLUMN – Cont’d

Ruthanne Okun and Bruce Janisse

Scot Beckenbaugh

Lance Teachworth

Sheri King & Ken Zwicker

Bob Anderson

Reg Pearson


conference. The ultimate product of this process of giveand take will be a Handbook of Neutrality, serving as aguide to inform agencies and policy makers. The effortis expected to last for at least five years.

The project will be overseen by Committee Chair JohnHiggins and by Professor Martin Malin, of the Chicago-Kent College of Law, who will serve as the Reporter forthe Neutrality Project. In addition to his many roles atthe NLRB, John is well known to ALRA agencies as aformer President of ALRA and as the editor of theDeveloping Labor Law. Professor Malin, the Director ofthe Law School’s Institute for Law and the Workplace,is well versed in agency structure and operations fromhis work as a consultant on the original administrativerules for the Illinois agencies. He is a prolific scholarand author who has spoken at several ALRA confer-ences over the years. His book, Individual Rights Withinthe Union, is considered the definitive work on the rela-tionship between labor organizations and their mem-bers. He is also the co-author of Public SectorEmployment, a public sector law casebook, to be pub-lished in the near future.

Work on the initial Statements will begin early in 2004,and draft Statements will be circulated to member agen-


initiative as ALRA has under-taken in the past quarter centu-ry, and I am grateful to Bob forstarting the effort, and to Johnfor conceiving of the specificproject and agreeing to see itthrough.

On Wednesday morning, afterthe business meeting, we willhave two concurrent work-shops on topics of importance

to member agencies. The problems posed by pro se liti-gation before labor relations agencies will be the focusof a workshop presented by the Pro Se Working Group,chaired by Patricia Crawford. At the same time, DanRainey will moderate a session on useful technologiesto help manage caseloads and get the work done in

tough budget times. The session will be developed bythe Technology Committee, co-chaired by Dan and TomWorley.

Detroit was a great conferenceand started the ALRA year offon the right foot. Halifax can-not help but be a spectacularconference, given the venueand the talented people work-ing on it, and it will finish theyear with a flourish. As for themiddle of the year, that iswhere the hard work is donethat makes the conferences sosuccessful. It is the time whenthe Ruth Okuns and the Sheri Kings and the BobHackels of the this organization shine. If anyone wantsto shine along with them by pitching in on a committeeor a working group please just drop me a line and let meknow.

PRESIDENT’S COLUMN – Cont’d

NEUTRALITY PROJECT

Back to Basics: NeutralityProject Prepares for Takeoff

Last year ALRA President Bob Anderson appointed aNeutrality Project Committee under the leadership ofJohn Higgins, to study methods for assisting memberagencies in “cultivating, practicing and promoting neu-trality in agency operations and administration of thelabor relations statutes, and ethics in the field of laborrelations.” In order to fulfill this mandate, theCommittee has set an ambitious and far reaching goal.Beginning with next summer’s conference in Halifax,the Committee will present draft “Statements ofNeutrality” to the member agencies for considerationand debate. These statements will deal with the struc-ture, administration and practices of neutral agencies,and will attempt to define the necessary characteristicsof a neutral agency and what is expected of a neutralworking within such an agency.

Statements on which agreement can be reached will beadopted by the membership. Those which cannot beagreed will be referred back to the Committee for revi-sion in accordance with the points raised in debate at the

Dan Rainey

Tom Worley



cies in advance of theconference. In order toassist the Committee inits work, the ExecutiveBoard is asking thatagency representativesprovide John with input –questions, comments,areas that should beaddressed, areas thatshould not be addressed,absolutely anything relat-ed to neutrality – by thebeginning of the year.

The 2003-04 membership of the Committee is:

Chair: John Higgins, Deputy General Counsel,National Labor Relations Bd.1099 14th Street, N.W. Washington, [email protected]: (202) 273-3700Fax: (202) 273-4270

Reporter: Professor Martin Malin,Chicago-Kent College of Law565 West Adams Street, Chicago, [email protected] Phone: 312-906-5056Fax: 312-906-5280

Committee Members:

• Robert Anderson, General Counsel, NewJersey PERC

• Warren Edmondson, Assistant DeputyMinister, HRDC/FMCS Canada (Chair-designate, Canada Industrial RelationsBoard)

• Marlene Gold, Chair, New York City Office ofCollective Bargaining

• Mary Johnson, General Counsel, NationalMediation Board

• Arthur Pearlstein, General Counsel, FederalMediation and Conciliation Service

• Marilyn Glen Sayan, Chair, Washington PERC

• John Truesdale, Chair, NLRB (retired)

• Will Weinberg, Chair, NY-NJ PAERB

John Higgins

NEUTRALITY PROJECT – Cont’d

PRO SE LITIGANTS

Going It Alone: ALRA Studies the Challenges

of Pro Se LitigantsThe familiar axiom is that anyone who represents him orherself has a fool for a lawyer. Whether or not there is truthto that statement, cases involving pro se litigants are anincreasing percentage of the workload for many ALRAagencies. At the Philadelphia conference in 2000, a work-shop on the topic drew a large audience, most of whomexpressed frustration at the challenges posed by need toafford pro se litigants a full opportunity to make a case,while still keeping the litigation manageable.

This remains an important and difficult issue for ALRAagencies. As a follow-up to the discussion in 2000, ALRAhas formed a Pro Se Working Group which will study theissue of pro se litigation, and will present its findings in asession on Wednesday morning of the Halifax conference.The Working Group is chaired by Pat Crawford of thePennsylvania Labor Relations Board. Member agencies

are encouraged to contact Pat, or any of the WorkingGroup members, to share information about special prob-lems encountered with pro se litigants, techniques thatthey’ve found particularly effective in managing such liti-gation, or specific issues to be addressed in theCommittee’s report. The members of the Working Groupare:

Working Group Chair: Patricia Crawford, Secretary ofthe Board, Pennsylvania Labor Relations Board — [email protected] 418 Labor & Industry Building,Seventh and Forster Streets, Harrisburgh, PA 17120 /Phone: (717) 783-6018 / Fax: (717) 783-2974

Members:• Robert Anderson, New Jersey PERC –

[email protected]• Dan Nielsen, Wisconsin ERC – [email protected]• Tim Noonan, Vermont LRB – [email protected]• Mark Torgerson, Alaska LRA –

[email protected]• Edward Zuccaro, Vermont LRB – [email protected]• Marjorie Wittner, Massachusetts LRC –

[email protected]



ALRA PROFESSIONALDEVELOPMENT

COMMITTEE PLANS FORTHE YEAR

The ALRA Professional Development Committee is offto a good start for the coming year. Committee membersthis year are: Susan Baumann, Jack Buettner, MaryCappadona, Brenda Council, Jim Crawford, RickCurreri, Ed Fitzmaurice, David Gedrose, Geoff Giudice,Pierre Hamel, Craig Hoster, Liz MacPherson, BennettaMansfield, Zandra Petersen, Antonio Santos, MarilynGlenn Sayan, Abby Simms, Akivah Starkman, MaryStevens, Ed Turner, Joel Weisblatt, Clint Wolcott, JimWilkerson, Jackie Zimmerman and Jaye Bailey Zanta.

The Committee met for the first time in Halifax, NovaScotia at the hotel that will host the 2004 summer con-ference. The meeting was very productive and the cityof Halifax is a truly enticing destination for next sum-mer.

In the coming year, the Committee will be preparing forthe annual ALRA Academy to take place July 23 – July25, 2004 in Halifax. The Academy will open on Fridaynight with dinner and a welcoming presentation and willcontinue through Sunday morning. Offerings willinclude sessions on “Becoming a Neutral”, “UnfairLabor Practices”, “Representation Cases” and“Mediation Concepts”. There will be plenty of time forthe usual animated discussion and interaction. TheAcademy experience is always highly regarded. Anyagency with new Board Members or Senior Staff areencouraged to contact Jackie Zimmerman at the IllinoisLabor Relations Board for details.

The PD Committee will also present two in depth train-ing sessions on Wednesday, July 28, 2004 in Halifax.The two sessions will run concurrently on Wednesdayafternoon and will provide hands-on, interactive ses-sions on “Decision Writing” and “Mediation”. The ses-sions will be designed to provide the participants withhigh level information on the topics and the chance toparticipate, practice, ask questions and learn techniquesfrom the best in our field. The decision to run these ses-

sions is based on the members’ response to evaluationforms in the past years. Thank you for you input. Moreinformation will be coming as the sessions are devel-oped.

As always, the PD Committee is encouraging memberagencies to apply for Training Grants for staff develop-ment programs during the year. ALRA has reservedfunds of $7,000 for this purpose. The Grant criteria arelisted on the ALRA website. Multi-agency efforts arefavored and may qualify for up to $5,000 per program.Specific questions may be sent to Jaye Bailey Zanta [email protected] or at 860-566-3306.

The PD Committee will also be concentrating this yearon reviewing the PD resources that ALRA provides tomember agencies throughout the year. Anyone withideas or specific requests for training or other resources,contact Jaye Bailey Zanta. Facilitating staff develop-ment for member agencies is a priority of ALRA, so letus know how we can help.

The PD Committee is looking forward to the 2004 sum-mer conference in beautiful Halifax. Our Canadianhosts have already done a great job of setting up whatpromises to be a great conference. Mark your calen-dars!!

PD COMMITTEE SUMMARY

Jaye Zabta Bailey“Not on my shoes”



The Program Committee, which is responsible fordevising the substantive program for the annualconference, met on October 18 in Halifax.

Members of the committee are: Scot Beckenbaugh,Mike Cuevas, Carol Nolan Drake, Jacques Dore, AllanDrachman, Josee DuBois, Larry Gibbons, Gerald Joyce,Sheri King, Loren Kleeger, John Mather, JudyNeumann, Laurie Rantala, Yvon Tarte, Les Heltzer andJim Breckenridge.

The conference will open with a lunch on Sunday, July25th. This will be followed by separate, but concurrentroundtable sessions for mediators, general counsels,board members and directors/admin officers.

The on-going Neutrality Project will take up the morn-ing of Tuesday July 27th. A Pro Se session will be heldon Wednesday following the annual business meeting inthe morning. In addition, the PD committee has sched-uled sessions for the afternoon. (See PD CommitteeReport)

Plans for the program on Monday, July 26 are in theemergent stage Themes that are being consideredinclude; the cost of conflict, as well as meditative andadjudicative control strategies.

The Committee is scheduled to meet again in February.In the meantime the phone lines and cyberspace will bebusier than usual.

PROGRAM COMMITTEE

Les HeltzerProgram Co-Chair

SISTER ORGANIZATIONS INITIATIVES

ALRA AND THE BROADERWORLD OF ADR

The experience of a couple of years ago, when ALRAbecame aware fairly late in the game that theCommissioners on Uniform Laws were drafting aUniform Mediation Act, drove home the fact that theworld of ADR is expanding and that the familiar tools ofour trade – mediation, conciliation and arbitration – arenow being wielded by people with little appreciation ofthe subtleties of the labor-management field. The dra-matic turn to alternative disputes resolution in settingsranging from family law to massive corporate litigationhas understandably triggered a host of proposals for reg-ulating the process. This raises the prospect of ALRAagencies suffering collateral damage from efforts tocurb perceived abuses of ADR techniques in otherfields.

Liaisons Appointed

In order to avoid surprises such as the UMA, ALRA istaking two steps to keep apprised of the activities ofother organizations in the ADR world. First, ALRA nowhas liaisons to the National Academy of Arbitrators, theAssociation for Conflict Resolution (formerly SPIDR),the American Bar Association and the CanadianAssociation of Administrators of Labour Legislation.These liaisons are tasked with keeping abreast of theactivities of these organizations and advising theExecutive Board of any that may affect the interests ofALRA agencies. They will also inform the other organ-izations of ALRA’s stake in proposed legislation or reg-ulations to avoid unintended interference with the oper-ation of our member agencies. The liaisons to otherorganizations are:

• American Bar Association – Labor Law Section:



• John Higgins, Deputy General Counsel, NLRB –[email protected] / Phone: 202-273-3700

• Mary Johnson, General Counsel, NMB –[email protected] / Phone: 202-692-5040

• Jacalyn Zimmerman, General Counsel, IllinoisLabor Relations Boards –[email protected] / Phone: 312-793-6480

• Association for Conflict Resolution: Jack Toner,Chief of Staff, FMCS U.S. – [email protected] /Phone: 202-606-5325

• Canadian Association of Administrators of LabourLegislation: Liz MacPherson, Director General,FMCS Canada – [email protected] / Phone: 819-997-1118

• National Academy of Arbitrators: Joel Weisblatt,Member, New York-New Jersey Port AuthorityEmployment Relations Panel –[email protected] / Phone: 609-497-2324

In addition to the efforts of these dedicated individuals,each of us should take personal responsibility to keepALRA informed of any proposals for regulation ofADR, certification of practitioners, imposition of codesof conduct or other matters that have the potential tointerfere with the traditional operations of the labor rela-tions agencies. In most cases, these efforts are not aimedat ALRA agencies, and early contact by ALRA can gen-erally insure that appropriate exemptions are includedfor collective bargaining disputes.

Sister Organizations Initiative

The liaison effort is basically defensive in nature, toensure that ALRA agencies are not harmed by theefforts of other organizations. On the more positive side,ALRA is playing role in an initiative to bring togetherorganizations that have an interest in ADR to raiseawareness of one another’s goals and activities, and todiscuss possible areas of cooperation among andbetween the organizations. In late October, WaltGershenfeld, President of the National Academy ofArbitrators, convened a meeting in Colorado, with rep-resentatives of the Academy, ACR, the ABA, theAlliance for Education in Dispute Resolution, theCollege of Commercial Arbitrators, the InternationalSociety for Labor Law and Social Security, the Center

for Public Resources and ALRA to begin this discus-sion. The representatives of these organizations allexpressed enthusiasm for the notion of greater commu-nication and cooperation, ranging from sharing infor-mation about conferences to formulating joint positionson matters of public policy.

These discussions are in their very early stages, butthere are several areas in which ALRA can easily reachout to other groups. Courtesy copies of this and futureissues of the Advisor will be sent to representatives ofthe organizations that met in Colorado, and links tosome of those organizations’ websites will be added toLabor Links section of the ALRA Website. Those organ-izations will also be made aware of the Advocates’ Dayat the annual conference, and ALRA will include infor-mation in the Advisor about the meetings of thoseorganizations. As a first step, there is a brief article else-where in this issue about the NAA Annual Meeting LasVegas next May. In Halifax next summer, we will hearfrom incoming NAA President George Fleischli andfrom Nancy Peace, the Immediate Past President ofACR. Both are former officials of ALRA member agen-cies, and their presentations will help jump start our dis-cussions of the Neutrality Project report on Tuesdaymorning.

The Sister Organizations initiative is a long term projectfor all of the organizations involved, and it is likely thatALRA will find substantial areas of common interestwith some of the groups, and none or very little withothers. The Executive Board is considering what othersteps might be taken in the near term to encourage com-munication and sharing of information and resources,with the current focus on ACR and the NAA, both ofwhich have substantial interests in labor relations issues,and both of which have a good deal of membershipoverlap with ALRA agency personnel. Joel Weisblatt,ALRA NAA liaison, will represent ALRA in these dis-cussions, which will be chaired for the Academy by DanNielsen. Comments and suggestions should be directedto Joel.

SISTER ORGANIZATIONS – Cont’d

Jim CrawfordPennsylvania LaborRelations Board, elected Executive Boardat Detroit Conference


Arnie Powers, Liz MacPherson Jack Buettner, Ruthanne Okun, Marvin Schurke


Carol Walter Pope

Nicholas Nahat

Cindy Goodakre, John Toner, Vicky Thomas, Percy Hatfield

Karen Bush, Walt Gershenfeld

John Mather

Paul BornSean McAlindenBill Murnigham

Joel Weiblatt

Wanda Mayer

Larry Gibbons

Top: Dan Rainey, Robert HackelBottom: John Tone, Reg Pearson

John Pinto, Jackie McViegh, Ed Philips

Carol Nolan Drake, James Cunningham, David C. Holster Roy L. Roulhac, Clint Wolcott, Stephen Glasser

PRESENTERS



HeadingFEDERAL

UNITED STATESNational Labor Relations Board

The National Labor RelationsBoard has requested andreceived briefs from interestedpersons on the supervisory sta-tus of workers in three currentcases that raise issues similar tothose addressed in the SupremeCourt’s 2001 decision inNLRB v. Kentucky River, 532U. S. 7001.The Court upheld alower court’s refusal to enforcethe Board’s determination that

six registered nurses at a mental health facility were notsupervisors, based in part on their exercise of independ-ent judgment in performing tasks.

Supervisors do not have the right to representation orcollective bargaining under the National LaborRelations Act (NLRA) because of a perceived conflictof interest that led to their exclusion by the Taft-Hartleyamendments of 1947. This exclusion distinguishes theact from many other labor laws, including some cover-ing state and local government employees, as well ascollective bargaining laws and practices inother countries. The supervisory issue hasbeen under increasing scrutiny here in recentyears because of the increase in “knowledgeworkers” and the growing impetus towardcollective action by long-standing highly-skilled persons such as nurses and physi-cians.

On November 7, 2003, Chairman Robert J.Battista and General Counsel Arthur F.Rosenfeld announced the launching of amajor redesigned NLRB web site(www.nlrb.gov). The new site enables thepublic to more easily access information andinteract with the Agency as it expands its E-Filing projects to include more documenttransactions. The NLRB first launched thesite in April 1997. At that time, the site con-sisted primarily of static pages of informa-

tion. Since its original launch, the site has grown fromapproximately 100,000 hits a month to over 1.5 millionhits per month by outside users.

The redesigned site is more dynamic than the previoussite and provides better organization of content, animproved navigation structure and a faster searchengine. The search options enable users to perform sim-ple or advanced searches, to search for words and phras-es in All Files or by sub-categories, and to highlightsearch terms in the search results. Users who choose anadvanced search can enter several criteria, including arange of documents, whether the documents should con-tain the search terms in the body or title, and the desirednumber of results sorted by relevance, scored using dateand sorted by relevance, or sorted by title.

Other new features include four navigation channels —Workplace Rights, NLRB Documents, E-Gov and NewsRoom —, a regional office locater that allows a user tofind the nearest local NLRB office by entering a zipcode, and a site map and quick links to main topic areas.The NLRB is inviting the public to provide online feed-back on the new site.

The NLRB has expanded the research capabilities of itsweb site, www.nlrb.gov, by adding CiteNet, a search-able database comprising an index to NLRB and related

Standing: Dan Rainey, Ed Fitzmaurice, Suzanna Pequignot, Larry GibbonsSitting: Mary Johnson, Benetta Mansfield

Robert J. Battista



court decisions. Issues are synopsized from cases datingback to February 1992. Searches may be made by theBoard’s topical classification system, key word, or casename.

The Board reported that it issued 543 decisions in fiscalyear 2003, which ended September 30. Of the total, 387were unfair labor practice cases and 156 were represen-tation cases. In a statement Chairman Battista andMembers Liebman, Walsh and Schaumber said:

We are encouraged by the progress in case production.Being down to a four-Member Board since the depar-ture of Member Acosta in August slowed us down, butwe made headway in reducing the backlog and improv-ing overall case production from the previous year. Asalways, we are indebted to the outstanding efforts of ourdedicated staffs.

National Mediation Board

In October 2003 the National Mediation Board, whichhas jurisdiction over labor-management relations in therailroad and airlines industries, conducted joint trainingfor Northwest Airlines and the International Associationof Machinists in conjunction with the W. J. UseryCenter for the Workplace at Georgia State University.The parties have been engaged in negations but partici-pated in training in preparation for mediation by theBoard.

One part of the training featured online dispute resolu-tion technology, a bargaining tool advanced by theNMB. The Board and the Usery Center are convincedthat joint training and discussions create a more produc-tive environment for negotiations. They plan to offerother specialized courses for mediators, arbitrators, bar-gainers and attorneys practicing under the RailwayLabor Act (RLA). The first continuing legal educationcourse (CLE) was scheduled to be offered in Atlanta GAon November 12, 2003.

The NMB has also received public comment on a noticeof proposed rule making regarding its responsibilities inthe resolution of so-called “minor” disputes (griev-ances) under the RLA. The Board appoints and com-pensates neutrals (referees) under the National RailroadAdjustment Board established pursuant to the RLA. TheNMB sought suggestions regarding the effective resolu-

tion of deadlocks and ways to achieve more efficient andcost-effective case handling.

Further information on these matters can be obtainedfrom www.nmb.gov The Usery Center web site iswww.userycenter.org

Federal Labor Relations Authority

In October 2003 Chairman Dale Cabaniss was con-firmed by the Senate to a second five-year term as aMember of the Federal Labor Relations Authority. Shehas served as Chairman since 2001.

Federal Mediation and ConciliationService

Earlier this year, John J. Toner,a long-time official at theNational Labor RelationsBoard, was named to be Chiefof Staff at the FederalMediation and ConciliationService. He had served mostrecently as Executive Secretaryof the NLRB.

US Department of Labor

In October 2003 the Department of Labor announcedfinal rules to increase the financial reporting require-ments of labor unions pursuant to the Labor-Management Reporting and Disclosure Act of 1959(LMRDA). The LMRDA applies to unions in the privatesector, unions that include both private and public sectorworkers, and unions of Federal workers, including thepostal service. The DOL had received over 35,000 pub-lic comments about the proposed rules, many of whichopposed the proposal. Labor Secretary Chao stated thenew requirements were necessary because:

“Too many workers are being hurt by the wrongdoing ofa few. In this era of accountability and transparency,updating the financial reporting requirements willempower and protect workers who trust their unions torepresent their interests.”

Among the new requirements is one for reporting byunions on financial transactions of large trusts like“joint funds,’ which are jointly administered by unions

FEDERAL – Cont’d

Jack Toner



and employers. More information can be obtained fromthe Department’s web site, www.dol.gov

Death of John T. Dunlop

Noted labor-management relations expert Dr. John T.Dunlop died in October in Boston. He was 89. Hisknowledge extended over many fields, including healthcare, economics, agriculture and construction. His 1958book, “Industrial Relations Systems,” remains a classic.

Dr. Dunlop left the ivory tower of Harvard frequently toresolve disputes in many different industries, and toserve the federal government in many positions, includ-ing at the War Labor Board, National Labor RelationsBoard, EEOC, and to chair the Dunlop Commissionexamining the future of worker-management relations.Dr. Dunlop served for a brief time as Secretary of Labor,but he resigned in 1976 in a dispute with PresidentGerald Ford over veto of a “common site” picketing billthat Ford had promised to support. Dr. Dunlop’s obitu-ary can be viewed on the ALRA website: ALRA.org –news and publications.

Submitted by Joy K. ReynoldsOctober 2003

LIFE MEMBERSHIPPresident Bob Anderson presented Joy Reynolds with alifetime membership to ALRA in recognition of her 30year career with the US Department of Labor and on-going contributions to ALRA.

Joy K. Reynolds had a 30-year career with the USDepartment of Labor beginning in 1966. She served asa labor law advisor in the program that administers

union democracy and financialreporting requirements, and asan industrial relations specialistwith primary interests in col-lective bargaining legislationand labor-management policyissues. During her tenure sheparticipated in many taskforces, including those on thereform of the civil service laws,collective bargaining in agri-

culture, the Dunlop Commission, and the examinationof service delivery in state and local government. Shealso participated in working groups with Canadian andMexican counterparts in the development of labor issuesunder NAFTA, and as a member of a delegation to theOECD. She has been providing the ALRA Advisor witharticles and information on federal (US) agencies anddevelopments since 1997.

FMCSSouthern California Grocery Talks toResume After Recess; Mediator Calls

Talks 'Useful'

Release Date: 11/12/2003

WASHINGTON, DC — Describing the resumed nego-tiations as “useful,” Peter J. Hurtgen, the Director of theFederal Mediation and Conciliation Service (FMCS),called a recess at noon Pacific time today in talksbetween the parties in theSouthern California grocerystrike and lockout.

Hurtgen is mediating the talks,which resumed Mondaybetween representatives of theUnited Food and CommercialWorkers and the supermarketchains — Ralph’s GroceryCompany; Vons Company Inc.,a Safeway Company; andAlbertsons, Inc.

In calling the recess, Hurtgen said, “The parties haveissues and matters to reflect upon, and I will be in touchwith them in the days ahead. We will resume the nego-tiations at an appropriate time.” During the recess, bothsides will continue to honor a commitment to refrainfrom further comments to the media about the status oftalks, he said.

“I respect the good faith that the parties have demon-strated at the bargaining table and in abstaining fromcomment to the news media, and I have asked the par-ties to again refrain from all comments to the media,”the FMCS director said.

The Federal Mediation and Conciliation Service, creat-ed in 1947, is an independent agency whose mission isto preserve and promote labor-management peace and


Joy K. Reynolds

Peter Hurtgen



cooperation. Headquartered in Washington, DC, withfive regional offices and more than 70 field offices, theagency provides mediation and conflict resolution serv-ices to industry, government agencies and communities.

FMCS and Korea Labor EducationInstitute Cooperate on Workshops


FMCS and the South Korea Labor Education Institute(KLEI) are cooperating in a series of workshops to buildmediation skills among practitioners in that Asiannation. Most recently, a workshop on preventive media-tion was held at the Ritz Carlton Hotel in Seoul, KoreaOctober 1, with another series of workshops to begin inNovember. The Seoul training session, developed byKLEI with cooperation from FMCS, was designed topresent and discuss preventive mediation programs andmediation skills. The 33 participants included 15 medi-ators from South Korea’s National Labor RelationsCommission (NLRC) as well as officials of the Ministryof Labor (MOL) and NLRC, union and managementleaders, labor attorneys, professors, researchers, and theKLEI staff. Earlier this year, representatives from SouthKorea attended a FMCS training course, “MediationSkills for Workplace Disputes” held in Seattle ,WA ,June 16-20 and a preventive mediation workshop inSeattle office on June 23-24.

The program will continue in November, when a pair oftwo-day classes on mediation skills are scheduled forNLRC mediators. In addition, classes on mediationskills will be offered to labor attorneys, officials, unionleaders and others next year. Two-month-long trainingcourses in mediation skills and preventive mediation areunder development for current and potential mediatorsin South Korea.

FMCS Announces Grants for Labor-Management Partnership Program


The Federal Mediation and Conciliation Service(FMCS) has announced grants totaling nearly $1.1 mil-lion to fund initiatives throughout the country to pro-mote better labor-management relations and to encour-age cooperation and partnering in resolving workplaceissues.

“The FMCS grants program is an important initiative insupport of our mission to promote industrial peace andsuccessful dispute resolution,” said FMCS DirectorPeter Hurtgen. “This year’s grantees demonstrated avariety of innovative approaches to strengthening labor-management ties and showing the benefits for collabo-ration over confrontation.

“In many ways, these are model programs that wewould like to clone in other industries and locations,”the FMCS Director said.

FMCS Grants Program Director Jane Lorber said thatbecause of limited funding, only one out of every fiveapplications in FY 2003 could be selected for a grant.Grantees were eligible for up to $125,000 for theirlabor-management partnership projects under the pro-gram. Lorber said a goal of the program “is to enable anorganization or committee to work on a project thatwould be otherwise financially blocked.”

Grantees were selected for demonstrating “best prac-tices in labor-management cooperation as a way ofimproving collective bargaining, and proactively miti-gating disputes,” she said. Grantees in past years havereceived support for a broad range of projects, includingoutreach, communications, strategic planning, minorityrecruitment and process development.

Because of the number of outstanding applications thatwere received but could not be funded, Lorber saidmany were being encouraged to apply for funding in fis-cal year 2004. “If an applicant wasn’t selected, we willexplain why in sufficient detail to give the applicant theinformation necessary to write a successful applicationthe following year, if the organization chooses to reap-ply,” she said.

Attached is a list of the Fiscal Year 2003 grant recipi-ents.

FEDERAL MEDIATION AND CONCILIATIONSERVICE

FY 2003 FUNDING SUMMARY

AREA

San Diego-Imperial Counties (San Diego,CA) 03-CA/A-006

$113,535 Develop strategies to help workers over-come legal barriers to Employment Using LocalLabor-Management Committees




Community Services Agency of the MetropolitanWashington Council (Washington, DC) 03-DC/A-007

$110,668 Implementation of Workplace Issues andCollective Bargaining in the Classroom in theMetropolitan Washington, DC Area by giving thestudents a better understanding of the work in thesociety in both an historical and contemporary per-spective.

PLANT

Blue Ridge Paper Products Inc. (Canton, NC) 03-NC/P-002

$65,000 The creation of a new, more industry competitive “Employee Ownership” organizationalculture, through a joint Labor/ManagementPartnership.

INDUSTRY

H-CAP, INC. (Washington, DC) 03-DC/I-003

$122,829 Address workforce needs, specifically thecurrent nursing shortage crisis by creating a trainingprogram which will offer an industry-led nursingeducation program.

International Association of Machinists & AerospaceWorkers/District Lodge 141M (South San Francisco,CA) 03-CA/I-004

$125,000 Improve labor-management relations andto enhance productivity and employment security inthe airline industry by developing and supportinghighly trained and effective labor-managementcommittees.

Consortium for Worker Education, Inc. (New York, NY)03-NY/I-005

$119,243 Develop industry led training and busi-ness services to help decrease the Employmentskills shortage and help improve the workers skills.

Alpena General Hospital (Alpena, MI) 03-MI/I-008

$116,439 Enhance labor relations in two separatehospitals using a new nursing profession initiative“The Magnet Recognition Program” to mandatestandards for hospitals to create healthier work envi-ronments and stronger organizations.

Mid-Michigan Construction Alliance (Lansing, MI) 03-MI/I-011

$120,721 Enhance the chances for finding betterways to achieve positive outcomes to deal with themany labor-management problems in MidMichigan, organized construction community.

Association of Joint Labor Management EducationalPrograms (New York, NY) 03-NY/PS-009

$76,014 Development and implementation of amulti-faceted labor-management committee train-ing program in order to strengthen and promote theneed for training for the committees.

City of Fresno (Fresno, CA) 03-CA/PS-010

$70,801 Improve Labor-Management Communi-cation, Trust and Decision-making during uncertaineconomic times.

Mediators Hear Aerospace IndustryIssues in Training Seminar


The first of a series of industry workshops for FMCSmediators gave insight into aerospace industry collec-tive bargaining issues for participants from the agency’sNortheast region at two consecutive trai ning sessions inBaltimore, MD starting October 21. Gary Cantwell,Vice President, Industrial Relations, Lockheed MartinCorporation (left) and Stephen Sleigh, Director ofStrategic Resources for the International Association ofMachinists and Aerospace Workers (right) led each ofthe one-day sessions for mediators. Representing man-agement and labor perspectives, they reviewed keytechnological, organizational, demographic, politicaland sociological forces behind collective bargainingissues in the aerospace industry. In coming months, thesessions will be presented to sub-regional groups ofFMCS mediators throughout the rest of the country. Theworkshop inaugurates an FMCS program to increaseand broaden the knowledge of agency mediators aboutkey industries with the goal of assisting parties in nego-tiations in developing innovative solutions at the bar-gaining table. Similar workshops on the health care,telecommunications, transportaton and constructionindustries are in development.




CANADAMinister Bradshaw announces

appointments to the Canada IndustrialRelations Board

OTTAWA, Sept. 30 /CNW/ – The Honourable ClaudetteBradshaw, Minister of Labour, announced September30th the appointment of Mr. Warren Edmondson asChair of the Canada Industrial Relations Board (CIRB)for a term of four years. The appointment is effectiveJanuary 1, 2004.

Mr. Edmondson has served as Assistant DeputyMinister of Labour and Head of the Federal Mediationand Conciliation Service with the Labour Program ofHuman Resources Development Canada since July1998. From 1990 to 1998, he was Director General ofthe Federal Mediation and Conciliation Service. In thisposition, he led a team of mediators responsible foradministering the dispute settlement provisions of Part I(Industrial Relations) of the Canada Labour Code.

A graduate of Loyola College (Concordia) in Montreal,Mr. Edmondson began his public service career in 1981.In October 2001, he was presented with the OutstandingAchievement Award of the Public Service of Canada forsustained outstanding achievement in modernizing theconduct of labour-management relations in Canada.

In announcing this appointment, Minister Bradshawacknowledged the efforts of Mr. Paul Lordon during hisalmost six years of service. Mr. Lordon served as the

first Chairperson of the CIRB and was the lastChairperson of its predecessor, the Canada LabourRelations Board.

Minister Bradshaw also announced the appointment ofMs. Louise Fecteau of Montreal to the position of Vice-Chair for a term of four years. A lawyer specializing inlabour and commercial law, Ms. Fecteau previouslyserved as a full-time member of the CIRB.

The Canada Industrial Relations Board, which cameinto effect on January 1, 1999, is an independent, repre-sentational, quasi-judicial tribunal whose mandate is tointerpret and apply the provisions under Part I of theCanada Labour Code dealing with bargaining rights andunfair labour practices. For more information on theBoard, visit their web site at http://www.cirb-ccri.gc.ca.

Canadian Labour Congress Survey

A telephone survey of more than 2,000 Canadian adultsconducted in August, for the Canadian Labour Congressasked employees who would not vote to join a union:why not? Included in this group were unionized work-ers who would not join a union today if they had achoice. The results, discussed at the CLC conference inOctober, are:

• One third of Canadians who are not members wouldjoin a union if asked.

• Two thirds who are not members would opt for anemployee association.

• The most powerful obstacle to organizing is the fearof unions – not employers.

• Four in ten members and non union workers sayemployees have no say in how the union operates.

• Non union workers recognize that union make someaspects of work better, but they want to minimizewhat they consider to be the risks and disadvan-tages.

• Thirty-eight percent of members and 44% of nonmembers, who would not vote for a union say theseniority system is “the major reason” for not want-ing a union.

• Forty-four percent of members and 38% of nonmembers who would prefer not to be unionized saythe dues are too high.


Warren Edmondson



• Women, young people and immigrants are receptiveto unions

• Eight percent would be willing to join a unionthrough the internet

The Canadian Labour Congress has determined that thelabour movement must organize between 150,000 and200,000 new members a year to avoid further declinesin union density which has fallen to 32.2%. Union rep-resented 41.8 of the Canadian workers in 1984.

Ken Georgette, President of the CLC, told participantsat the close of the weekend conference that “the worldhas changed around us and we have to change”.

From Virginia Galt, Labour ReporterThe Globe and Mail

Public ServiceLabour Relations Board

An Act to modernize employment and labour relationsin thew Canadian Federal public sector was finallyapproved by the Canadian Parliament on Tuesday 4November,2003.

The Act creates a staffing regime that is more flexible tofacilitate the hiring of employees when and where theyare needed. It also sets up a new staffing tribunal whoseresponsibility will be to hear appeals against certainstaffing practices.

With respect to labour relations, the existing PublicService Staff Relations Board (PSSRB) will be restruc-tured and renamed the Public Service Labour RelationsBoard (PSLRB). Important changes in the new mandatewill include dealing with human rights issues arising inthe Federal public sector workplace and the responsibil-ity for pay research and analysis. ADR practices areactively promoted. The new legislation promotes coop-eration and consultation between labour and manage-ment.

Fianally a Canada School of Public Service, amalga-mating several existing institutions, will be created. Itsfocus will be to promote a culture of continuous learn-ing and innovation in the Federal Public Service.


Yuon Tarte, Pierre Hamel, Gilles Grennier



ALRAACADEMY

2003Ed Fitzmaurice Jr.,

NMBLynn Morrison,

MichiganSusan Bauman,

WisconsinPaul Gordon,

Wisconsin

Ed Turner, Ohio

James Cunningham Jr., Minnesota

Peter Maydonis,Phoenix

Les Heltzer, NLRB

Benetta Mansfield, NMB



Heading

CALIFORNIA“The California Supreme Court has determined that thestate’s 2001 interest arbitration statute for public safetyemployees is unconstitutional. In a unanimous ruling,the Court held that the statute unconstitutionally inter-fered with local government agencies’ duty to set com-pensation for their employees. The law, SB 402, gavelabor organizations representing local police officersand firefighters the right to interest arbitration to resolvetheir collective bargaining disputes.

Although there are a few cities and counties that haveenacted interest arbitration by local ordinance, this rul-ing eliminates the unions’ right to pursue the process inall other localities.

The Court’s ruling may have implications forCalifornia’s new “mandatory mediation” statutes forfarmworkers. Governor Davis signed two bills last yearthat set forth a new method for resolving collective bar-gaining disputes involving agricultural employees.Under the statutes, a union may demand mandatorymediation of its collective bargaining dispute. In theevent there is no settlement, the mediator drafts a col-lective bargaining agreement for implementation.These statutes have already been challenged in court bythe growers.”

FLORIDAFISCAL PROBLEMS ANDUNILATERAL CHANGES

By Jack E. Ruby

In the past twelve years there have been significant deci-sions by the Public Employees Relations Commission,the Florida District Courts of Appeal, and the FloridaSupreme Court, as well as legislation as a result of thosedecisions, regarding fiscal problems and the duty ofpublic employers to collectively bargain. Recently, therehave been three Florida Circuit Court lawsuits involvingrecent legislation addressing the duty to bargain changescaused by fiscal problems. One of the Circuit Court law-suits has resulted in a decision, discussed below. A pre-

liminary discussion of the background of the recent leg-islation is necessary to determine the importance of therecent Circuit Court decision.

Background Prior to 1991, Without Consideration of“Underfunding”

Article I, Section 6, of the Florida Constitution isboth simple and succinct: “The right of employees, byand through a labor organization, to bargain collectivelyshall not be denied or abridged.” The Florida SupremeCourt has held that public employees have the right to“effective collective bargaining.” Hillsborough CountyGEA v. Hillsborough County Aviation Authority, 522So.2d 358, 363 (Fla. 1988). As an integral part of theconstitutional right, a public employer must maintainthe established status quo during the collective bargain-ing process. School Board of Orange County v.Palowitch, 367 So.2d 730, 731 (Fla. 4th DCA 1979). Aunilateral change in terms and conditions of employ-ment during the status quo period may be a violation ofthe statutory duty to negotiate in good faith.§ 447.501(1)(a) and (c), Fla. Stat. (2003).1

By statute, the subjects of wages and other economicterms and conditions of employment are mandatory sub-jects of negotiations. § 447.309(1), Fla. Stat. (2003).Nassau Teachers Association, FTP-NEA v. SchoolBoard of Nassau County, 8 FPER ¶ 13206 (1982). Apublic employer may take unilateral action to changethese and other mandatory subjects of negotiations pur-suant to the impasse resolution mechanism of Section447.403, Florida Statutes, to change terms and condi-tions of employment, but only after (1) completion ofnegotiations which fail to end in an agreement and (2)exhaustion of the statutory impasse procedures. Thisprovision only applies after the completion of theimpasse process, and it does not authorize unilateralaction during pending negotiations. Palowitch v. OrangeCounty School Board, 3 FPER 280 (1977), aff’d, 367So.2d 730 (Fla. 4th DCA 1979) (the bargaining table isthe legislatively mandated forum to determine wages,hours, and terms and conditions of employment). Inaddition to legislative body action, a public employermay lawfully take unilateral action where there has been

AROUND THE STATES AND PROVINCES

1Where the 2003 statutes are cited, this provision of the statute hasremained unchanged since before 1991. If there has been a statutorychange, an earlier version of the statute is cited.



a waiver by the employee organization or where thereare exigent circumstances. Florida School for the Deafand Blind v, Florida School for the Deaf and BlindTeachers United, 483 So.2d 58 (Fla. 1st DCA 1986).Absent such defenses, a public employer’s unilateralchange is a per se unfair labor practice violating the dutyto bargain in good faith. Pasco County School Board v.Pasco County CTA, 3 FPER 9, 13 (1976), 353 So.2d108 (Fla. 1st DCA 1977).

The “Underfunding” Cases of 1991

Section 447.309(2), Florida Statutes (1991), stated:

Upon execution of the collective bargaining agree-ment, the chief executive officer shall, in his annu-al budget request or by other appropriate means,request the legislative body to appropriate suchamounts as shall be sufficient to fund the provi-sions of the collective bargaining agreement. Ifless than the requested amount is appropriated, thecollective bargaining agreement shall be adminis-tered by the chief executive officer on the basis ofthe amounts appropriated by the legislative body.The failure of the legislative body to appropriatefunds sufficient to fund the collective bargainingagreement shall not constitute, or be evidence of,any unfair labor practice.

In 1991, two school districts were the subject ofunfair labor practice charges filed by employee organi-zations for unilateral acts allegedly taken pursuant to theunderfunding provision of Section 447.309(2), becauseof admittedly significant revenue shortfalls during therecession that year. In both cases, the Commission heldthat the underfunding provision did not apply and thatexigent financial circumstances were not alleged orshown. In both cases, the Commission was reversed andthe Courts of Appeal held that the underfunding statutedid apply. Sarasota Classified Teachers Association v.Sarasota County School District, 18 FPER ¶ 23069(1992), reversed, 614 So. 2d 1143 (Fla. 2nd DCA 1993),review dismissed, 630 So.2d 1095 (Fla. 1994); MartinCounty Teachers Association v. School Board of MartinCounty, 18 FPER ¶ 23061 (1992), reversed, 613 So.2d521 (Fla. 4th DCA 1993).

1992-1993 Florida Supreme Court Decisions onCollective Bargaining

In 1992, the Florida Supreme Court decided a case inwhich the Florida Legislature decided in the general

appropriations act to alter certain state employee leavebenefits during the middle of the term of a collectivebargaining agreement. State of Florida v. Florida PBA,613 So.2d 415 (Fla. 1992). A divided Court reversedlower holdings that the changes were unlawful and heldthat, unlike the private employer, a public employer’ssignature of the executive cannot bind the appropriationof funds by the legislature. 613 So.2d at 418-19.

In addition to concluding that Section 447.309(2)allowed underfunding, the Second District Court ofAppeals reversed the Commission citing to the FloridaPBA Supreme Court decision in also reversing theCommission:

Under the separation of powers doctrine, the rightto bargain must be considered along with ArticleVII, Section 1(c) of the Florida Constitution,which provides that “no money shall be drawnfrom the treasury except in pursuance of appropri-ation made by law.” Accordingly, even thoughschool board employees have the right to bargainwith their employer, the school board in its capac-ity as the legislative body has the absolute rightand obligation under the Constitution to fund ornot fund any agreement entered into between theemployees and the school board as employer. TheLegislature clearly reserved this right when itenacted Section 447.309(2) and made it clear thatunderfunding an agreement was not an unfair laborpractice. Any other rule would permit the execu-tive branch of government, by entering into collec-tive bargaining agreements calling for additionalappropriations, to invade the legislative branch’sexclusive right to appropriate funds.

Sarasota County School District, 614 So.2d at 1148.

Subsequent to this opinion, however, the FloridaSupreme Court issued an opinion that called this rea-soning into question, Chiles v. United Faculty ofFlorida, 615 So.2d 671 (Fla. 1993). In that case, thestate Legislature refused to fund pay increases under acollective bargaining agreement because of a shortfall infunds. The Court held that to be unlawful, distinguish-ing its prior opinion:

We begin by noting that the present case is factu-ally quite different from our recent opinion in Statev. Florida Police Benevolent Association, 613So.2d 415 (Fla. 1992). There we dealt with a situ-ation in which no final agreement had beenreached between the parties, unlike here where anagreement was reached and funded, then unilater-ally modified by the Legislature, and finally uni-

AROUND STATES & PROVINCES – Cont’d



laterally abrogated by the Legislature.Accordingly, we do not believe that the result inPolice Benevolent Association dictates the resulthere.

The state now argues that whatever agreement wasreached between it and the unions somehow failedto reach the level of a fully enforceable contract.Indeed, the logical conclusion of the state’s posi-tion is that public-employee bargaining agree-ments cannot ever constitute fully binding con-tracts, even after they are accepted and funded. Wecannot accept this position.

615 So.2d at 672.

The Court then stated ground rules for the abrogationof an agreement where there are revenue shortfalls:

We recognize that in the sensitive area of a contin-uing appropriation obligation for salaries, and per-haps in other contexts as well, the Legislature mustbe given leeway to deal with bona fide emergen-cies. Accordingly, we agree with the trial court thatLegislature has authority to reduce previouslyapproved appropriations to pay public workers’salaries made pursuant to a collective bargainingagreement, but only where it can demonstrate acompelling state interest. Art. I, § § 6, 10, Fla.Const.; Hillsborough County GovernmentalEmployees Ass’n v. Hillsborough County AviationAuthority, 522 So.2d 358 (Fla. 1988).

Before that authority can be exercised, however,the Legislature must demonstrate no other reason-able alternative means of preserving its contractwith public workers, either in whole or in part. Themere fact that it is politically more expedient toeliminate all or part of the contracted funds is notin itself a compelling reason. Rather, the legisla-ture must demonstrate that the funds are availablefrom no other possible source. Accord UnitedStates Trust Co. v. New Jersey, 431 U.S. 1, 97S.Ct. 1505, 52 L.Ed2d 92 (1977); Association ofSurrogates and Supreme Court Reporters v. NewYork, 940 F.2d 766 (2d Cir. 1991); SonomaCounty Organization of Public Employees v.County of Sonoma, 23 Cal.3d 296, 152 Cal. Rptr.903, 591 P.2d 1 (1979). That has not happenedhere.

615 So.2d at 673.

Statutory Amendment of the Underfunding Statute

In 1995, Section 447.309(2)(b) was amended to state:

If the state is a party to a collective bargainingagreement in which less than the requested amountis appropriated by the Legislature, the collectivebargaining agreement will be administered on thebasis of the amounts appropriated by theLegislature. The failure of the Legislature toappropriate funds sufficient to fund the collectivebargaining agreement shall not constitute, or beevidence of, any unfair labor practice. All collec-tive bargaining agreements entered into by thestate are subject to the appropriations power of theLegislature and the provisions of this section shallnot conflict with the exclusive authority of theLegislature to appropriate funds.

Ch. 95-218, § 1 at 1943, Laws of Florida. The effect ofthis amendment was to limit the applicability of theunderfunding statute to the State of Florida.

Creation of New Statute on “Financial Urgency”

As a part of the statutory amendment to Section447.309(2)(b), the Legislature created a new statute,Section 447.4095, which provides:

Financial Urgency. In the event of a financialurgency requiring modification of an agreement,the chief executive officer or his representative andthe bargaining agent or his representative shallmeet as soon as possible to negotiate the impact ofa financial urgency. If after a reasonable period ofnegotiation which shall not exceed 14 days, a dis-pute exists between the public employer and thebargaining agent, an impasse shall be deemed tohave occurred and one of the parties shall sodeclare in writing to the other party and to the[Public Employees Relations] Commission. Theparties shall then proceed pursuant to the provi-sions of Section 447.403 [to resolve the impasse].An unfair labor practice charge shall not be filedduring the 14 days during which negotiations areoccurring pursuant to this section.

Ch. 95-218, § 2 at 1944, Laws of Florida.

Subsequent Case Law on Section 447.4095

In February 2002, the Commission received a requestfrom the School Board of Miami-Dade County for theappointment of a special master to resolve impasseswith employee organizations involving the applicationof Section 447.4095, Florida Statutes. Thereafter, twocircuit court lawsuits and two unfair labor practice




charges were filed concerning the application of thestatute. The lawsuits and unfair labor practice chargesinvolved the School Board of Miami-Dade County andthe School Board of Madison County. Each caseinvolved the alleged abrogation of existing collectivebargaining agreement economic provisions because ofsignificant shortfalls in revenues. The lawsuits filed bythe various employee organizations alleged the facialunconstitution-ality of Section 447.4095, using theSupreme Court’s standard that the defendant school dis-tricts were allegedly unable to show that the “funds [topay contractual benefits] are available from no otherpossible reasonable source.” The parties resolved thelawsuits and unfair labor practice charges without anystatutory interpretation in mid-2002. Therefore, neitherthe Commission nor the Florida Courts have had anopportunity to interpret Section 447.4095 and the cir-cumstances in which it may be applied until a recentdecision from the Florida Circuit Court for theNineteenth Circuit.

The Circuit Court action was predicated upon amotion by the Indian River County School Board(School Board) to vacate an arbitrator’s award in favorof the Communications Workers of America (CWA)relating to changes to benefit levels and employee con-tributions to the School Board’s health insurance planwithout negotiations. The School Board defended itschanges by arguing that they were made pursuant toSection 447.4095. The Circuit Court held that the arbi-trator incorrectly held that the remedy of arbitration wasavailable and that the arbitrator could interpret theSchool Board’s actions under Section 447.4095. TheCircuit Court held that the unfair labor practice provi-sions of Sections 447.501 and 447.503 preempted thearbitrator’s consideration of the issue of whether theSchool Board violated the provisions of Section447.4095. The Court held that, if injunctive relief wasnecessary to prevent a change in the status quo, theinjunction provisions of Section 447.503(3) were avail-able.

In addition, the Circuit Court held that:

Just as the activities at issue here were matters forPERC, that interpretation is also a matter clearlywithin the jurisdiction of PERC. For this same rea-son and because the Court must avoid reachingconstitutional issues where it can resolve matterson other grounds such as the preemptive jurisdic-tion of PERC, the Court will not reach the CWA’s

claim that Section 447.4095, Florida Statutes, isunconstitutional.

Accordingly, the Circuit Court set aside the arbitra-tor’s decision pursuant to Section 682.13(1)(c), FloridaStatutes (2003) for exceeding the powers granted to thearbitrator and ruling upon matters arguably covered byChapter 447, part II, Florida Statutes, and within thepreemptive jurisdiction of the Commission. See IndianRiver County School Board v. CommunicationsWorkers of America, No. 20020354-CA-17 (Fla. 19thCir. Ct. Aug. 28, 2003) (unpublished opinion). TheCommission did not participate as a party in the lawsuit.A representative of the Commission has been informedthat the CWA intends to file an appeal of the CircuitCourt’s decision to a Florida District Court of Appeal.

ILLINOISAs of November 1st, the Illinois State Labor RelationsBoard State Panel has five new members. JackieGallagher takes over as Chair of the Board, replacingManny Hoffman who retired last summer. ChairGallagher has long been involved in labor, governmen-tal and political affairs. Immediately prior to herappointment as Chair, she was a legislative and politicalconsultant for the Chicago Teachers Union. JoiningChair Gallagher as new members of the State panel are:

Rex Piper, retired Secretary-Treasurer of the UnitedMine Workers in Southern Illinois. Member Piper wasformerly a County Commissioner in WilliamsonCounty, and Mayor of the city of Energy, Illinois.

• Charles Hernandez, a project manager for JohnsonControls who has represented management interestsin the Hispanic American Construction IndustryAssociation.

• Letitia Taylor, formerly an Area Field ServicesDirector for the American Federation of State,County and Municipal Employees.

• Michael Hade, former President of the Springfieldand Central Illinois Trades Council, and retiredField Service Director for the Illinois Federation ofTeachers.

The Illinois Labor Relations Board has jurisdiction overnon-education public sector cases. Cases within CookCounty are decided by the Local Panel, and those out-side of Cook County are decided by the State Panel.Chair Gallagher will also serve as Chair of the LocalPanel. Ed Sadlowski remains the appointee of the




Mayor of Chicago on that panel, and Donald Hubertcontinues as the appointee of the President of the CookCounty Board.

MARYLANDThe first institution and union to complete negotiationsunder the new higher education collective bargaininglaw that went into effect July 1, 2001 are St. Mary’sCollege of Maryland and AFSCME. The agreementcovers both the exempt and nonexempt units. Its life isfrom October 23, 2003 through 10/23/2006 (3 years’duration is the maximum under the law).

The agreement does not include pay increase as that wasproscribed in budget language passed in the 2003General Assembly, although the contract provides forautomatic reopeners on compensation should the bar belifted and monies become available.

In one interesting provision the parties agree to submitdisputes over unit clarification to the SHELRB whosedecisions shall be binding.

The only other unit to have completed MOU negotia-tions so far is the sworn police officers unit at theUniversity of Maryland College Park, but the MOU hasnot yet been ratified by the governing body (UniversitySystem of Maryland Board of Regents) though thataction is anticipated shortly. St Mary’s College is one ofthree State higher education institutions independent ofthe USM Board of Regents. The SMC governing boardapproved the MOU at its quarterly meeting Oct 23.

— Karl Pence

MICHIGANNORA LYNCH APPOINTED MERC

CHAIRMAN

Nora Lynch was appointed Chairman of the MichiganEmployment Relations Commission by GovernorJennifer M. Granholm on July 10, 2003. Ms. Lynchserved as an Administrative Law Judge with theMichigan Bureau of Employment Relations for over 25years and retired from that position in November of2002 to begin a labor arbitration practice. She is cur-rently on arbitration rosters for the American Arbitration

Association and the Federal Mediation and ConciliationService.

Ms. Lynch received a B.A. degree from MarygroveCollege, and an M.S.L.S. and J.D. degree from WayneState University in Detroit, Michigan. She resides inWest Bloomfield, MI, with her husband Mark Rubin, anAdministrative Law Judge with the National LaborRelations Board.

NEWFOUNDLAND ANDLABRADOR

Loblaw locks out 1,600 workers Employees began rotating strikesUnion says no to wage concessions

Canada’s biggest supermarket chain has locked outabout 1,600 workers at its 15 Dominion stores inNewfoundland after the workers began rotating strikes.

Loblaw Cos. Ltd. said in a brief statement it had lockedout the employees due to a labour disruption.

The workers, members of the Canadian Auto WorkersLocal 597, said they began picketing the stores toprotest the company's demand for wage and benefit con-cessions.

The Toronto-based company said the offer containssigning bonuses, pay increases for existing employeesand pension improvements.

However, it also said it needs more room to manoeuvreagainst lower-cost rivals.

“We’re asking for flexibility so we can compete in a pre-dominantly non-union retail environment,” Loblawspokesperson Geoff Wilson told Bloomberg News.

Wilson said a wage agreement would allow Loblaw toopen warehouse-type stores in Newfoundland, similarto new stores in Ontario that carry more profitable non-

food merchandise.

The stores are seen as Loblaw’sresponse to the growing threatfrom low-cost operators, suchas Wal-Mart, which are carry-ing more and more groceries.

But CAW president BuzzHargrove said too many retail-ers are using the threat of low-paying competitors to demandcontract concessions.


George Joyce



“All the companies want to use Wal-Mart to set the low-est standards they can even where Wal-Mart isn’t aproblem,” he said, noting Loblaw enjoys industry-lead-ing profits and dominates up to half of theNewfoundland grocery market.

Loblaw’s offer to its Newfoundland workers is “insult-ing,” he said.

The workers, who are seeking a first contract, are amongthe lowest paid in the industry already. Starting rates arejust 50 cents above the provincial minimum, the unionsaid.

Some members of Loblaw’s much larger Ontario work-force are watching the dispute with interest after theirown union, the United Food and Commercial WorkersUnion, agreed to concessions at the new superstoreswithout consulting them.

One unhappy union member, Ben Blasdell, is challeng-ing the United Food deal at the Ontario LabourRelations Board, saying it should have been put to ageneral membership vote.

The union’s leaders said it agreed to Loblaw’s terms inexchange for automatic recognition in those stores, anextension of its Real Canadian Superstore concept inWestern Canada

— Dana Flavelle, Business ReporterTORONTO STAR

NEW JERSEYThe New Jersey Supreme Court has affirmed per curiama case holding, among other things, that a 24/72 hourwork schedule for firefighters was mandatorily nego-tiable and could be awarded by an interest arbitrator.Teaneck Tp. and Teaneck FMBA Local No. 42, 353 N.J.Super. 289 (App. Div. 2002), aff’d ___ N.J. ____(2003). Pursuant to N.J.S.A. 34:13A-16, the PublicEmployment Relations Commission has jurisdiction toenterain appeals of interest arbitration awards. TheAppellate Division panel approved the Commission’snarrow standard of review in such cases: theCommission will not disturb an arbitrator’s exercise ofdiscretion in weighing the evidence unless an appellantdemonstrates that the arbitrator did not adhere to thestandards in the interest arbitration statute or the gener-al arbitration act or unless it shows that an award is not

supported by substantial credible evidence in the recordas a whole. The panel also approved the Commission’sstandards for analyzing an employer's supervision con-cerns when a work schedule proposal covering rank-andfile officers would place them on a different work sched-ule than their superior officers: an arbitrator may awarda different schedule if he or she finds that the schedulewould not impair supervision or if there are compellingreasons to grant that proposal that outweigh any super-vision concerns. The Supreme Court had granted certi-fication to consider the negotiability of a proposal toplace rank-and-file officers on a different work sched-ule, but at oral argument the Justices realized that theemployer had not properly preserved that argument sothe Court elected to issue a per curiam affirmance.

The New Jersey Legislature has amended the NewJersey Employer-Employee relations Act, N.J.S.A.34:13A-1 et seq, to prohibit school boards from unilat-erally imposing their contract positions after negotia-tions reach impasse. N.J.S.A. 34:13A-33. If fact-findingproceedings do not produce a settlement, the amend-ments expressly authorize a super concilation process.N.J.S.A. 34:13A-34, 35, and 36.

The New Jersey Legislature has also amended section5.3 of the Act, N.J.S.A. 34:13A-5.3, to permit the Stateand majority representatives of its employees (exceptState troopers) to enter contracts requiring binding arbi-tration of all major disciplinary disputes. This amend-ment overrides the previous prohibition against arbitrat-ing a dispute when an employee had an alternate statu-tory appeal procedure — for example, a Civil Serviceemployee who could appeal a discharge to the MeritSystem Board.

— Bob Anderson

ONTARIOThe third annual collective bargaining conference, host-ed by Labour management services of The Ministry ofLabour, was held on October 23rd in Toronto.

One hundred and thirty participants – from public andprivate sector unions and management – attended theconference and contributed to its success through facili-tated discussion and questions for the keynote speakerand panellists.

Jim Sanford, an economist with the Canadian AutoWorkers delivered the keynote address. The HonourableMr Justice Warren Winkler addressed the conferenceduring lunch.




Two panels complemented the program: The benefitspanel consisted of Irene Klatt, Assistant Vice Presidentof the Canadian Life and Health Insurance Association,Randy McGlynn, Chief Operating Officer of the OntarioTeachers’ Insurance Plan and Robert J. Bass, of Bass

Associates. The second panel dealt with the issue ofpensions and included Keith P. Ambactsheer, author ofThe Ambactsheer Letter, Isla Carmichael. SeniorResearcher at OPSEU, and Mark Zigler, of KoskieMinsky.

OREGONNelson and Gamson join Thomas on

Oregon ERB

Luella Nelson has been appointed to replace DaveStiteler as Public Member of the Oregon ERB. Luella isa veteran neutral, who started work with the NationalLabor Relations Board upon her graduation fromHarvard Law School in 1976. While with the Board, sheserved as Board Counsel and Senior Counsel inWashington, where she worked closely with formerALRA President John Truesdale. In 1981, she leftWashington to become a Field Attorney in the Board’sOakland office for five years.

In 1986, Luella opened a private ADR practice on thewest coast. A member of the National Academy ofArbitrators, Luella is Past Chair of the Labor andEmployment Law Sections of both the Oregon State Bar

and the State Bar of California, and currently chairs thatsection for the Bar Association of San Francisco. Luellais also Past President of the Oregon Chapter of theIRRA.

Luella joins Paul B. Gamson as newly appointed mem-bers of the Oregon Board. Rita Thomas, a member ofthe Board for the past six years, took over as Chair lastsummer.

NLRB CASESListed below are NLRB cases of significance that issuedbetween May and October 2003. Copies of these deci-sions are available on the NLRB website www.nlrb.gov.

(1) Reliant Energy – 339 NLRB No. 13: Discussionof a new NLRB rule provision for supplementinga brief when authorities come to the attention of aparty after it has filed its brief. The new procedureis modeled after Rule 28(j) of Federal Rules ofAppellate Procedure.

(2) Wal-Mart – 339 NLRB No. 10: Discussion of theJencks provisions limiting disclosure of pretrialstatements for cross-examination only and the fur-ther requirement that they be returned to counselfor the General Counsel at the close of the hearing.

(3) Jano Graphics, Inc. – 339 NLRB No. 38:Discussion of the employer’s insistence that aunion submit the employer’s final offer for a ratifi-cation vote as a condition of further bargaining,and the impact of that insistence on the employer’sdeclaration of impasse.

(4) Aesthetic Designs, LLC – 339 NLRB No. 55:Discussion of whether a “yes” vote, cast on thesample ballot provided with the official electionkit rather than on an official ballot, should becounted.

(5) USF Red Star, Inc. – 339 NLRB No. 54:Discussion of an employer’s overbroad prohibitionon the wearing of a union button.

(6) Armored Transport, Inc. – 339 NLRB No. 50:Discussion of the Board’s finding that the employ-er violated Section 8(a)(5) by dealing directly withits employees by attaching to a series of letters toemployees copies of a proposed contract beforeaffording the Union either an opportunity to con-sider the proposal or to bargain.


Jim Stanford, Economist CAW



(13) Staten Island University Hospital – 339 NLRBNo. 135: Discussion of whether a union agent’sconduct, although directed against supervisors,managers, and security guards, violated Section8(b)(1)(A) under the circumstances of the case.

(14) Pieper Electric, Inc. – 339 NLRB No. 160:Discussion of circumstances under which anemployee stock purchase plan constitutes a per-missive subject of bargaining, and distinguishingprior Board decisions in which such plans werefound to be mandatory bargaining subjects.

(15) IBEW, Local 236 – Discussion of who is a “co-worker” for purposes of an employee’s exercise ofthe right to co-worker representation (“Weingartenrights”) under Epilepsy Foundation of NortheastOhio, 331 NLRB 676 (2000).

(16) American Steel Erectors, Inc. – 339 NLRB No.152: Discussion of whether disparaging statementsdirected at a prospective employer are sufficient tocause a job applicant to lose the protection of theAct.

(17) Federated Logistics and Operations – 340 NLRBNo. 36: Discussion of the appropriateness of spe-cial remedies, including a broad order, supplyingnames and addresses of unit employees to theUnion, a public reading of the notice, and posting(and reading) the notice in additional languages.

(18) Exxon Chemical Company 340 NLRB No. 51:Discussion of when a company’s refusal to arbi-trate grievances amounts to a repudiation of thecontract’s grievance-arbitration provision and aviolation of Section 8(a)(5).

(19) King Soopers, Inc. – 340 NLRB No. 75:Discussion of an employer’s obligation to bargainover the implementation of new work rules thatcan be grounds for discipline.

(20) Campbell Electric Co., Inc. 340 NLRB No. 93: –Discussion of the circumstances under which it isappropriate to deny reinstatement and toll thebackpay of an unlawfully terminated employeewho was considering resigning at the time of thetermination.

(7) International Protective Service, Inc. – 339NLRB No. 75: Discussion of whether the strike bysecurity guards lost the protection of the NLRAbecause they failed to take reasonable precautionsto protect the employer’s operations from suchimminent danger foreseeably that would resultfrom their sudden cessation of work.

(8) Fantasia Fresh Juice Company – 339 NLRB No.112: Discussion of the Board’s conclusion that theRespondent employer is entitled to an award ofattorney fees under the Equal Access to Justice Act(EAJA) because the General Counsel’s exceptionsto the ALJD, which the Board adopted, were basedalmost entirely on an unwarranted attack on theALJ’s credibility findings and, hence, were notsubstantially justified as required by EAJA.

(9) Nations Rent, Inc. – 339 NLRB No. 101:Discussion of the Board decision that theRespondent’s continued maintenance of an overlybroad no-solicitation/no-distribution rule, and itsfailure to send a written expunction letter to anemployee were violations of an earlier settlementagreement that warranted setting the agreementaside for noncompliance.

(10) Trane, an Operating Unit of American StandardCompanies – 339 NLRB No. 106: Discussion ofthe Board’s single facility presumption. First, theBoard found that the excluded site lacked any sem-blance of local autonomy based in large part on theabsence of separate supervision. Second, theBoard found that the geographic distance betweenthe facilities and the absence of evidence of inter-change were outweighed by other factors support-ing a multi-facility unit.

(11) U.S. Postal Service – 339 NLRB No. 151:Discussion of the rights of off-duty employees of aproperty owner’s subcontractor to have access tothe owner’s property for purposes of union organ-izing.

(12) Alexandria Clinic, P.A. – 339 NLRB No. 162:Discussion of the requirements under Section 8(g)that union-represented health care employees pro-vide 10-day notice of the date and time of an intentto strike, and reversing the Board’s prior rule per-mitting unilateral extensions of the 10-day periodfor as much as 72 hours.



Reader Survey for ALRA AdvisorTo our readers: we are asking for your opinions about the overall usefulness of the ALRA Advisor, whatfeatures you like, which ones you feel are less useful, and what else you would like to see included.Given the hi-tech world we live in, we also ask whether you prefer to receive the news letter elec-tronically or whether you would prefer to continue to receive a hard copy.

We look forward to hearing from you.

SURVEY1. In general, do you find the ALRA Advisor useful?

2. Do you share it with others in your agency or work-place? How many?

3. What current features do you find most useful: spot-light on agencies; reports on federal and state and localdevelopments; longer feature articles on topics of inter-est, e.g., training; committee and project reports; pres-ident’s column; report on annual conference?

4. What would you like to see included or expanded on inthe Advisor: letters to the editor; personalities; occa-sional book reviews; more photos; profiles of keyagency members or staffers; articles on training of thetype covered in ALRA Academy; other (please specify)?

5. Any items you would like to see de-emphasized or deleted?

6. Is the frequency of the issues about right, too few, too many?

7. Regarding format, would you prefer to receive the Advisor on line or in hard copy?

8. Do you have any other suggestions or comments?

Some people read a national newspaper atbreakfast. Others, like Harry Hoglander

of the NMB above, read the ALRA Advisor.

ASSOCIATION OF LABOUR RELATIONS AGENCIESDan Nielson, President

Reg Pearson, President Elect

Bob Anderson, Immediate Past President

Tom Worley, Vice President – AdministrationJack Toner, Vice President – Finance

Jaye Bailey Zanta, Vice President – Professional Development

Executive Board Members

Scot Beckenbaugh Phil HanleyJim Crawford Mary JohnsonWarren Edmonson Mariln Glenn Sayan

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