Federal Judge Denies Hotel’s Attempt to Stay Arbitration Order Pending Appeal

RI Lawyers Weekly profiles a recent case of mine involving the validity and arbitrability of a card check neutrality agreement signed between UNITE HERE Local 217 and the operator of the Renaissance Hotel, Sage Hospitality.

An order requiring a hotel to arbitrate a dispute with a union could not be stayed after the hotel filed an appeal, a U.S. District Court judge has ruled.

The hotel argued that a stay was necessary because its appeal could be rendered moot should the hotel be ordered to comply with the arbitration order.

But Judge William E. Smith disagreed.

“[W]hile the Hotel has articulated a plausible theory of irreparable harm, it has not persuaded the Court that the damage it foresees will actually come to pass,” the judge said.

The 20-page decision is UNITE HERE Local 217 v. Sage Hospitality Resources, Lawyers Weekly No. 52-030-10. The full text of the ruling can be found by clicking here.

Providence attorneys Amato A. DeLuca and Matthew A. Jerzyk represented the union. They were opposed by Providence attorney Moshe S. Berman and Maryland attorneys Louis J. Cannon Jr. and Norman R. Buchsbaum.

ABC Show Honors Westin Boycott

Over thirty cast and crew members working on the new Body of Evidence ABC TV pilot had moved out of Westin Providence Hotel in solidarity with the Westin workers’ boycott.

The stars of the pilot, Dana Delany (Katherine Mayfair on Desperate Housewives) and Jeri Ryan (Borg Seven of Nine on Star Trek: Voyager), were among those who switched their accommodations to the Providence Biltmore Hotel.  The cast and crew, members of IATSE Locals 600, 52, 798, 161, 481 and American Federation of Television and Radio Artists (AFTRA), said that they will not be staying at the Westin Providence Hotel as long as the boycott remains in place.  Additionally members of Teamsters from Locals 251 and 817 working on the production respected the Westin Providence workers’ picket line.

Westin Providence workers, UNITE HERE, and Rhode Island Jobs with Justice commended the cast and crew for their actions.

“We’re pleased that Body of Evidence’s cast and crew took a stand to support workplace justice and moved to the Biltmore hotel. In our current economic situation, it is more important than ever to patronize employers who respect workers and provide good jobs for our communities” said Camilo Viveiros, executive director of Rhode Island Jobs with Justice.

Workers and community members have held pickets mornings and afternoons in the sun and in the rain, since the Westin Providence Hotel workers authorized a boycott of the hotel by a 138-2 vote on March 18, 2010.  The vote was taken in response to a series of unfair labor practices at the hotel, culminating in the abrupt imposition of 20% pay cuts, harsh increases in housekeeper workloads and new unaffordable health insurance rates by The Procaccianti Group management at the Westin. The Union has filed charges with the National Labor Relations Board over The Procaccianti Group’s conduct.

Pete Kuttner, of IATSE, stated “When the men and women I work with heard about the cuts in wages and benefits our sisters and brothers of UNITE HERE 217 were dealt there was no way we could continue staying at the Westin. The unions who represent the workers on ‘Body of Evidence’ support the boycott.”

“It’s an outrage that the Procaccianti management has unilaterally changed my wages and health insurance right in the middle of contract negotiations,” said Chris Cook, a Purchasing and Receiving Agent at the Westin and an Executive Board member of UNITE HERE Local 217, the Union at the hotel.  “The Procacciantis are making me choose between putting food on the table and keeping health insurance for my wife and five-year-old son.”

The boycott means that the employees of the Westin Providence are officially asking visitors and conventions not to patronize the hotel.  Some people and organizations have already decided cancel events they had planned at the hotel or book at another hotel because of the dispute.

Westin Providence workers say they will reconsider their boycott if The Procaccianti Group management resolves the unfair labor practice charges, including payment to the workers for the money they have lost in the cuts.

NLRB Rules Against Rhode Island Head Start Workers

In October 2009, District 1199 SEIU filed Unfair Labor Practice (ULP) charges with the National Labor Relations Board against Children’s Friend & Service, on behalf of the approximately 200 Head Start employees who were stripped of their union voice when Children’s Friend began managing the Head Start program for Providence & Blackstone Valley.

The charges were based on the union’s allegations of the following:

• In its Head Start grant application, Children’s Friend promised to hire all existing qualified Head Start employees and to work with staff to meet the federal 2011 and 2013 educational goals, but it reneged on these commitments after it learned that the employees were unionized and it needed a pretext to justify ending their employment.
• Out of 193 former employees that applied for jobs with Children’s Friend, only 79 were re-hired – even though they all met or exceeded the federal requirements for Head Start employment. The employer is essentially claiming that it decided that a majority of the former Head Start staff were not qualified to continue their employment, despite having never observed their work with children and families.
• Children’s Friend did not hire a single member of the union’s negotiating committee, despite the fact that these workers possessed equal or greater qualifications and experience as workers who were in fact hired.
• Children’s Friend did not follow the federal Head Start regulations that clearly require that hiring preference be given to current or former Head Start parents. Many of the displaced Head Start workers – including those on the negotiating committee – were Head Start parents before they became staff members.
• Children’s Friend has refused at every turn to meet with the union – whether it was to discuss the transition plan when it took over the grant, or to negotiate a collective bargaining agreement with the Head Start employees.

The NLRB has now formally declined to bring a complaint against Children’s Friend.

The NLRB regional director said that “there was no evidence that [Children’s Friend] had purposely refused to hire employees of a predecessor employer in order to avoid its obligation to bargain with the union.”

“Rather, it appeared from the evidence that in narrowing its field of qualified candidates from 180 to 168, union membership or active participation was not considered a factor,” Pye, the regional director, said in a letter dated Jan. 22.

Pye also said there was insufficient evidence to support the union’s allegations that Children’s Friend engaged in an anti-union campaign to “interfere with, restrain and coerce employees in their exercise of protected concerted activities.”

For their part, the displaced Head Start workers vow to continue their fight.

“We plan on appealing this decision and working to ensure that Children’s Friend & Service is held accountable for the violations of our rights and the Head Start laws,” said Tina Heyder, a leader from the union’s negotiating committee and former Head Start employee of 19 years. “We’re qualified, experienced, and committed to our children – and it is a shame that this company has used federal tax dollars to displace over one hundred child care workers out of our chosen careers.”

Nurses Union Offers Solutions to Wrong Site Surgeries

Kudos to United Nurses & Allied Professionals director, Rick Brooks, and president Linda McDonald, RN for a compelling Op-Ed in the Providence Journal about ways to address the spate of recent wrong site surgeries in Rhode Island.

As RIH spokesmen have been quick to point out, the epidemic of medical errors is not unique to RIH nor is it a recent phenomenon. Ten years ago, the Institute of Medicine reported that an estimated 98,000 patients die in U.S. hospitals each year due to errors. Yet, despite this call to action, a recent study by Consumer Union reported that the number of preventable hospital deaths has not diminished.

As representatives of the more than 2,000 exceptionally caring and talented registered nurses and other health professionals at RIH, our gut reaction is to circle the wagons and defend our hospital for being the outstanding medical facility that it is. But then, we know that defensiveness is part of the problem that has kept hospitals from getting to the root cause of errors. Thus, to more thoughtfully contribute to the analysis and prevention of medical errors, our union has undertaken a survey of our members to ask for their thoughts on how to prevent harm to patients.

From the hundreds of responses that we have received from our members, several consistent themes have emerged.

Listen to employees: Every patient-care area is unique and one-size-fits-all solutions are unlikely to be successful. Employees know the factors in their work area most likely to cause harm to patients. By enlisting employees and their union representatives in confidential, nonthreatening and respectful discussions, the hospital and its patients will benefit from the unique insights that front-line caregivers can offer.

Slow the pace: Too often, hospitals — and physicians — are driven by the pressures of the bottom line. Monthly financial reports (are we doing better or worse than budgeted?) often cause administrative panic and an excessive preoccupation with revenue and “productivity” (i.e., volume and turnover of patients), rather than a singular focus on safety and providing a positive patient experience.

Communicate clear and consistent policies: Employees report that they are deluged with lengthy, confusing and sometimes contradictory policies and procedures. What’s more, each unfortunate event triggers another onslaught of memos and meetings. For employees to understand and comply with frequently changing protocols, communication must be clear and consistent, and employees must be given adequate time to ask questions, give feedback and practice new approaches before they are implemented.

Provide sufficient staff to ensure manageable workloads: Medical and nursing research has repeatedly documented the obvious — when caregivers are assigned too many patients, bad things are more likely to happen to those patients. Over the years, hospitals across America have continually looked for ways to lower the cost of caring for patients. This has led to higher numbers of patients per nurse, even as hospital patients have become increasingly acute. Safe nurse-to-patient ratios need to be established and adhered to in Rhode Island. (California has established such ratios, which offer a reasonable benchmark for Rhode Island.)

Change the culture: Hospitals have historically been run in a hierarchical and authoritarian fashion that causes many front-line caregivers to be reluctant to speak freely about practices that may, or do, cause harm to patients. In particular, physicians are notorious for their resistance to feedback, not to mention criticism, from registered nurses and other health professionals. Administrators, in turn, have typically taken the “bad apple” approach to medical errors, seeking to root out the individual “responsible” for a mishap, rather than focus on “root cause” analysis of systemic factors. While individuals must certainly be held to the highest professional standards, a culture of blame discourages candor and reduces opportunities for continuous improvement and learning.

These are all common sense solutions generated by the very people who work in Rhode Island hospitals.  I hope that hospital management takes these suggestions to heart.

Convention Center Sues over Worker Protection Ordinance

Unsurprisingly, the anti-union, Carcieri-led Rhode Island Convention Center Authority has filed a federal lawsuit seeking to declare a recently-passed worker retention and protection ordinance as unconstitutional.

The ordinance, styled on model legislation from other cities, seeks to protect hotel workers from arbitrary layoffs and to ensure stability in the important city-based tourism economy.  The ordinance is more important than ever with Rhode Island’s unemployment rate inching north of 13%.   It was introduced by Councilman Michael Solomon and received near unanimous support from other Providence City Council members. The Council passed the ordinance twice and the measure became law when Providence Mayor David Cicilline neither signed it or vetoed it.

The lawsuit, filed by Adler, Pollock and Sheehan, argues that the ordinance is preempted by the National Labor Relations Act as well as state labor law.  In addition, the corporation argues that the ordinance violates the Constitution’s equal protection clause by including some employers and not others and that the city overreached its authority in attempting to regulate state-owned facilities.

The Court will likely uphold the constitutionality of the ordinance since ordinances such as this have been litigated in many other cities and they have passed constitutional muster.  See e.g. Washington Service Contractors Coalition v. District of Columbia, 54 F.3d 811, 817-818 (D.C.Cir. 1995).  In addition, the General Assembly has never made labor relations a subject of exclusive state preemption, as it has for education, elections, and taxation. See e.g. Providence City Council v. Cianci, 650 A.2d 499 (R.I. 1994)

Boston Hotel Workers File Discrimination Lawsuit

A lawsuit filed this week by seven current and former employees of Fairmont Copley Plaza claims that the Boston hotel and its managers discriminated against employees of Moroccan descent and with Muslim religious beliefs.  According to the lawsuit, employees were verbally and physically intimidated by co-workers following the Sept. 11 terrorist attacks. The lawsuit also includes claims of wrongful termination and retaliation.

“There became a pattern of harassment and after the attacks on Sept. 11, the level of harassment increased,” said Rahsaan Hall, an attorney with the nonprofit Lawyers’ Committee for Civil Rights Under Law of the Boston Bar Association, which filed the complaint against the Fairmont Copley yesterday in US District Court.

A spokeswoman for Fairmont Hotels and Resorts Inc., which runs the Fairmont Copley, referred questions about the case to a local representative from the hotel. However, that representative did not immediately respond to requests for comment.

According to the 71-page court filing, seven employees of Moroccan descent – all of whom are US citizens – repeatedly were disparaged by co-workers who called them “terrorists” and accused them of being members of the Taliban. In one instance, one of the employees was grabbed inappropriately by a hotel doorman. In another, during a meeting with several people, including a human resources director, the hotel’s general manager allegedly said: “I have two problems: the rats and the Moroccans. I took care of one and I can’t figure out the other.”

Read more at the Boston Globe here.

Sen. John Tassoni for Lt. Gov?

Several sources have confirmed that Sen. John Tassoni is announcing imminently that he is running for Lt. Gov. of Rhode Island in 2010 – regardless of whether the current incumbent – Elizabeth Roberts – seeks re-election.

This announcement comes as quite a surprise to political analysts since Tassoni has not been talking about running for higher office and he only has $14,000 in his campaign account.

Tassoni is the Democratic State Senator for District 22 which encompasses Smithfield and North Smithfield.  He first won election in 2000, beating Republican Michael Flynn, and has won re-election handily since.  Since Tassoni is a business agent at the state’s largest public employees union – AFSCME Council 94 – expect Tassoni to rely heavily on labor’s support for his Lt. Gov. bid.

Tassoni has been no stranger to controversy.  Just this year, Tassoni made national news for introducing legislation that would create state government oversight of local youth sports programs.  In addition, Tassoni proposed to legalize sports betting in the state.

If Roberts does in fact opt into the field of candidates running for Governor, many experts expect State Representatives Ed Pacheco (D-47 Burrillvile, Glocester) and Betsy Dennigan (D-62 East Providence, Pawtucket) to get into the race as well.  In fact, Ed Fitzpatrick profiled Dennigan in a column today.

Update: The Valley Breeze confirms my report, but they assert that Tassoni will only seek the office if Lt. Gov. Roberts does not run.

Panel on the Employee Free Choice Act

In the wake of Vice-President Joe Biden’s supportive comments at an AFL-CIO executive committee meeting, the American Constitution Society (ACS) will host a panel discussion of the Employee Free Choice Act (EFCA) on Wednesday March 11th.

Among other things, EFCA is designed to allow employees the choice of indicating their support for a union through ballot elections or by signing cards authorizing union representation, which is referred to as either majority sign-up recognition or card check recognition. As Congress considers this legislation, many different questions will need to be considered. How will EFCA change current labor law? What are the myths and truths about ballot elections and majority sign-up recognition? Can EFCA be part of a larger conversation about remedying a faltering economy?

Experts in labor policy, labor law, and human rights will discuss these and other issues in a candid conversation. The panel will feature Dean Baker, Willis Goldsmith, Julie Martinez Ortega, Carol Pier, and David Madland.  Click here for more information and to register for the event online