Labor interests increasing transport muscle ahead of pending “sea change” in Washington

John D. Schulz, Contributing Editor -- Logistics Management, 10/18/2007

LAS VEGAS—Organized labor has greatly increased its investment in an attempt to win contracts at traditionally non-union trucking companies. But its biggest windfall could be capitalizing on a possible Democratic sweep of the Congress and White House next year.
 
The Teamsters union spent more than $47 million in organizing efforts last year, up from barely $10 million five years ago. But it’s an open question as to whether that investment will result in any large trucking companies going unionized, a top legal expert said recently.

The Teamsters’ net worth is up to nearly $100 million after having a negative $57 million net worth in 2001, said Tom Krukowski, a veteran labor attorney with Krukowski & Costello, a Milwaukee law firm, at the 21st annual membership meeting of the North American Transportation Employee Relations Association (NATERA) last month.

Still, Krukowski doubted that the Teamsters union’s greater investment in organizing would pay off in any contracts at trucking companies. There has not been a large non-union trucking company organized by the Teamsters since deregulation hit the industry in 1980.

There are other changes coming on the legal horizon in transportation—and in the country, experts say.
   
Robert Batista, chairman of the National Labor Relations Board, said the future of labor rulings at the board could change if a Democrat wins the White House next year.
Currently there is a 3-2 Republican majority at the board, which has fairly consistently supported employers in the years of the Bush administration.
   
Harold P. Coxson Jr., an attorney with Ogletreem Deakins, Nash, Smoak & Stewart in Washington, is predicting a “sea change” in labor relations because of possible changes in political leadership in Washington.
 
“I think it’s going to be difficult to stop Hillary Clinton,” he said. “I think she very well could win. Right now I would prepare for a Democratic president, which could very well be Hillary Clinton.”
 
That could increase labor’s clout.  Organized labor currently represents 12 percent of all workers, down from nearly 35 percent in the 1950s. Only 7.8 percent of private-sector workers are unionized last year, according to the Bureau of Labor Statistics.
 
The unions are seeking changes to the National Labor Relations Act. Specifically, they want more liberalized card check agreements, which make it easier to organize workers, rather than through individual union elections. Under a card check agreement, a company agrees to recognize a union if a majority of workers at a single location simply signs a petition to organize.

It comes at a time of renewed interest in trucking by organized labor, which has been in retreat since deregulation in 1980. More than 500,000 Teamster jobs have been lost in trucking since that time, and non-union truckers outnumber unionized workers by more than 20-to-1 currently.
  
The Teamsters union currently is in contract talks with both UPS and the freight carriers. Those new contracts could help the union to help organize some workers at UPS Freight (formerly Overnite Transportation, which endued a three-year unfair labor practice strike from 1999 to 2001).

UPS wants greater flexibility in its heavy freight operations. Teamsters union President James P. Hoffa wants to be the first union president since 1980 to organize a large non-union trucking company such as UPS Freight or one of the FedEx ground freight units.
 
“(UPS Freight) is a non-union company owned by a unionized company that’s right in the middle of all these contract talks,” Krukowski said. “Who knows what it all means?”
 
Retaliation is becoming a new rich area for some employees to sue transportation companies, Krukowski said. Some companies recently have gotten sloppy regarding retaliation, which Krukowski called a major unsung issue in transport law. In a Supreme Court case decided last year involving the Burlington Northern Santa Fe Railroad, the high court expanded the definition of bias retaliation by creating a “reasonable employee” standard.
 
In that ruling, the court reduced the extent of harm or injury an employee must endure in order to win a lawsuit for retaliation. In a case that went all the way to the Supreme Court, a former employee was awarded $46,000 in compensatory damages, as well as $3,250 in medical expenses.
  
Krukowski said those damages were actually light. That’s because the BNSF lawsuit was an individual, not a class action, where damage awards easily can run into the millions.
 
Transportation employers are worried that labor interests in Washington could win an indexed minimum wage, increases in paid family and medical leaves, and restrictions on CEO pay.
   
It also is possible that transport companies could face greater scrutiny at federal labor agencies as well as at the Environmental Protection Agency and the Labor Department’s Occupational Health and Safety Administration.
“The unions are using the mantra of ‘restoring the middle class’ for all these initiatives,” Coxson said. “But if you put all this legislation together, we would become France. This would Europeanize U.S. labor and employment law.”