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Legal issues confronted as strike drags on.

As the Service Employees Strike drags on at deadline past its fifth week, building managers and owners are feeling compassion for their loyal employees and are wondering what they can legally do during the strike.

The Realty Advisory Board (RAB), that acts as the owners negotiating team for 900 of the largest city buildings, will be issuing a bulletin on this topic this week if the strike continues. James Berg, the RAB director, was unavailable to contribute to this article as he was negotiating at the Sheraton New York.

No Threats or Bribes

Attorneys say that while it is legal for employers to express an opinion, i.e. "I'd like you to come back to work," there can be no conduct that would provide 'interference, restraint ox coercion' with respect to employees' rights that are guaranteed by the National Labor Relations Act.

"The classic case is 'Come back to work or you're fired'," said Gary H. Glaser, a partner in the labor employment law group at Winston & Strawn.

On the other hand, the employer also can't offer the worker say, an extra $1,000 to induce her to start work again either.

"You can't buy somebody back," said Daniel Silverman, regional director of the National Labor Relations Board, which has oversight of employee/employer relationships in this area.

"The other side of a threat is like bribery and that would constitute interference," said Glaser.

In fact, the only way a worker can come back to work while the legal strike continues, the attorneys say, in on the employees' former terms and conditions, because then there would be no interference with the collective bargaining that is presumably underway.

"If the employee is returning under the old conditions it's not a problem," said Silverman, "so then the employer is still a part of RAB."

The workers, however, have their own union contract to worry about. According to David Gregory, professor of Labor Law at St. John's University School of Law, unions in general usually can pursue workers for "high multiples of their salary" for crossing a picket line and returning to work.

The union attitude, says Gregory, is that they will subject the workers to the union constitution and by-laws and sue them to enforce a fine against them.

"When the smoke clears, the union may pursue them in terms of fining them for 'conduct unbecoming a union member,'" Gregory explained. "If the union can obtain those fines, they can pursue them to a money judgement. So the workers are caught between a rock and a hard place."

Dennis Sheenan, a spokesperson for Local 32B-32J, called the notion "ridiculous."

"Why would a union strike and set up a picket line," he wondered, "and then set up conditions under which the workers could cross by paying fines? He said he was familiar with the union constitution and by-laws and it was "very straight-forward."

And yet all of the labor attorneys questioned said it was a very typical part of a union agreement with its members. Counsel to the union did not respond to a phone call and follow up explanatory fax, as they were deep in the negotiation process.

Resign and Cross Line

Glaser said union members can also cross picket lines if they resign their membership, but cautioned they may face a quandary if the strike ends and the building once again comes under union work rules.

"A union shop clause that requires the employees to become members of the union has been interpreted by the U.S. Supreme Court to mean 'financial core membership," explained Glaser.

This means, he said, that it is unlawful for the union to make them join, but if they are "willing to pay the freight, [the union dues] that's sufficient and the only extent to which it can be enforced."

The NLRB's Silverman agreed the employees have the right to go back to work. "The question that comes up is whether or not they would be subject to any union discipline," he said, adding that would depend on the circumstances of each case. "If they are not active union members they may not be subject to discipline."

Unemployment Eligibility

Since the strike fund is paying the workers a paltry $7 day, Gregory cautions that Bevona "may not be fully in tune with his members, because if the strike fund can't give them high percentage of weekly wage, no worker can subsist for more than a few weeks."

Since New York State has traditionally been unionized, unlike in other states, one cheerful note for the strikers is that they will be able to collect unemployment benefits, but that is after seven weeks of striking.

By then, the $60 million in the union coffers will have been depleted by about $12 million. It would also take the workers about 156 weeks, or about seven weeks more than three years, to make up the lost $4,130 in wages, should they get the expected $12 increases for the first two years and $14 more for each of the remaining years and weeks.

If they return this week, they will be out $2,950 and it will take them 25 months to recover the lost five weeks of wages.

Gregory said there is a rule of thumb for strikes: "If you don't win a strike in the first 72 hours, both sides lose." In this instance, he observed, "the employees are losing their compensation and the tenants are being under-served."

Issues to Settle

In this labor dispute, Gregory said, the employers position is "quite reasonable they want to control their costs."

The building owners want to retain the senior workers at "a relatively high salary" and get new ones as "low as possible" and over a period of years bring them up to full salary.

The owners, through the RAB, have made an offer of a starting salary of $352, with step-ups to full salary over six years. Full salary is currently $578 and the RAB has offered a package that would bring that up to $611 over three years.

Gregory said that a lower starting wage "is normal" in almost every industry that is not unionized. "Unions are always wary about management prerogatives, especially when it comes to compensation," he said, "because the union fears management will have pernicious incentive to terminate senior workers."

Permanent Replacements

But if the strike is not settled, Gregory says the owners position can harden and they "will go from stop-gap to permanent replacement" workers.

The owners technically cannot permanently discharge the strikers, said Gregory, "but at the end of the strike you don't have the automatic right to get your job back and if the employers permanently replace the workers, they are under no obligation to give strikers back their jobs."

But at the end of strike, before bringing in anyone else, "the employers have to offer any open spot to the most senior former striker."

Reserve Gates

Another ongoing legal problem for owners is the "reserve gate" issue. According to the union contract with the RAB members, for each building there is a designated area for strikers to stand in the event a strike is called, and a building entrance where others can enter and leave the building.

Under the National Labor Relations Act, this is so that strikers do not interfere with the employees of other employers who are not involved in the strike, i.e. your tenant businesses and their own employees.

"The law says the employer can separate the employees involved in the dispute," said Silverman of the NLKB. "They can get together and say those employers being struck use one entrance, and those employers not being struck use another.

Silverman says charges have been filed against the union by building owners and are pending on all 900 RAB buildings. "Each one is a separate charge, but we haven't gotten evidence on every single building yet," he admitted. The basis of the charges filed on behalf of the member owners by the RAB is that the union members have "threatened, coerced and restrained tenants... persons engaged in commerce or in an industry affecting commerce, where the object thereof is to force or require tenants... to cease doing business with such buildings."

The Port Authority of New York and New Jersey filed its own charges against the union for conducting unlawful picketing at locations other than the reserve gate.

Other specific charges were filed by Lord & Taylor for "picketing... with the object of forcing... the neutral employer, to cease doing business with Ogden Allied Services."

Silverman said if the situation involved one building it would take two or three days to investigate. Nevertheless, he expects to have investigated all the charges by this week. "I wake no promises but to get as much evidence as possible on each building," he said.


A settlement was reached in the strike by Local 32B-32J of the service Employees Union against the commercial building owners of New York City this past Sunday after intervention by Mayor Rudolph Giuliani and special labor advisor Randy Levine. The owners' Realty Advisory Board was expected to approve the contract Monday.

The settlement calls for a three-year contract with a 2.6 percent raise for current workers and a rise in pension benefits. Summer replacements will come in at 60 percent of current wages.

Despite calling the strike - which lasted 30 days - on the basis of never accepting a lower starting wage, Union President Gus Bevona finally agreed to a 20 percent reduction in starting wages to $470 for new employees, with a one-step phase-in of 30 months and a three-month waiting period for health benefits.

This year's regular wage will increase $15 a week to $588 for current employees, with an additional $15 and $16 weekly raise the following two years. Pensions will be increased immediately from $650 to $800 per month and will rise another $50 monthly on January 1, 1998.

Medical reimbursement goes from 80 to 85 percent, and in 1998 goes to 90 percent on the first $7,500. Workers with 20 years or more on the job will receive one additional vacation day per year to a maximum of 25 days for a 25-year employee.
COPYRIGHT 1996 Hagedorn Publication
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Copyright 1996, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

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Author:Weiss, Lois
Publication:Real Estate Weekly
Date:Feb 7, 1996
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