Cognition Issue 10
Bicycle Messengers at Aero Special Delivery Service, San Francisco's oldest and largest Messenger service and a key part of the SF DMS branch, rode out on strike yesterday, Friday March 12, to protest thedismissal of union supporter and team leader Clive Lightwood following a meeting at 8 a.m. with SF DMS/RMS Branch Managers Tom Finlay and Ramesh Patel. It was the first Messenger strike in San Francisco since the mid-80s when the crew at Bay Area Rapid Delivery struck for one day.
The meeting, held under the sycamore trees of SF's South Park (site of numerous wakes for departed Messengers), lasted one hour and was attended by over 20 DMS Messengers including 3 Drivers. The Messengers also objected to having their team leaders demoted by management pointing out that DMS policies require team leaders to be elected by the teams.
Messengers from other companies and activists from the International Longshoremen and Warehousemen Union (ILWU) also attended. DMS Managers were opposed to attendance by non-DMS persons. The Messengers responded that they were with the ILWU and that they wanted them there. The Managers also stated that they could not discuss Clive's case with him because the union had filed a legal protest on his behalf against DMS. They claimed his situation was now between the union and DMS.
"Does that mean you recognize the union?" asked ILWU Local 6 Business Agent Fred Pecker.
"No," one of the managers replied.
The meeting threatened to disintegrate when the ILWU and non-DMS members of SFBMA excused themselves in the hope that the Managers would discuss Clive's case with the DMS Messengers. This was agreed to and the meeting continued. However after about a half hour of discussion, there was still no commitment by the managers to reinstate Clive. They did promise to respond by noon when they left but the Messengers remained angry. After that the ILWU and other SFBMA members rejoined the DMS Messengers. Sentiment for a strike was strong. It was also pointed out that the strike would probably be legally considered an Unfair Labor Practice strike because of Clive's dismissal. Under US law strikers can not be permanently replaced in an Unfair Labor Practice strike (as distinguished from an Economic strike).
At about 9 a.m. the Messengers made a decision to strike that was nearly unanimous. The Messengers then rode to the Wall (Sansome & Sutter Streets in SF's Financial District) and wrote signs. DMS responded by assigning Aero tags to other bike boards but there were few takers. DMS began assigning bike tags to the Drivers who protested against being sent downtown for lower paid work. When one Driver asked why they were getting so much Bike work another Driver got on the radio to announce that the Bike Messengers were striking. Walkers were also given Bike work.
At 10:30 a Walker was about to join the strike (most Walkers were uninformed about it) when one of the Managers went on the radio to announce that Clive was reinstated!
The union situation at DMS brings up the issue of the DMS claim to be a democracy for Messengers as stated by their literature. A fundamental principle of democracy is self-determination. Another is the acceptance of majority will. Both principles are now on the line at DMS where a majority of staff have designated the ILWU to represent them before management and where that same management must now decide whether to accept that will or in the custom of most old fashioned companies choose to oppose the majority's will. The strike also proved that Messengers are not selfish and unconcerned about their fellow workers. This strike wasn't about economic issues or general working conditions. It was about standing up for a fellow Messenger in his time of need. "An injury to one is an injury to all!"- H
Clive, Meghan, and Derek were all stripped of their team leader status without warning. The DMS also laid-off Tristen Michael Maria and Carlos "RKO" Ruiz.- A
STEALING PEOPLE'S MAIL DEPARTMENT:
DMS Courier's Demand for Recogntion
Re: Recognition of Local 6 as Collective Bargaining Agent for DMS Corp. Employees in San Francisco
Dear Mr. Finlay:
The Warehouse Union Local 6, ILWU has been designated by the overwhelming majority of the full-time and regular part-time bicycle, driver, motorcycle, walker messengers, order takers, dispatchers and warehousepersons employed by DMS Corporation in San Francisco as their exclusive representative for the purpose of collective bargaining over wages, hours, benefits and other terms and conditions of employment.
Local 6 hereby demands that DMS Corporation recognize it as the exclusive collective bargaining representative for the above employees pursuant to Section 9 of the National Labor Relations Act and commence immediate negotiations for a union contract. If necessary Local 6 is prepared to substantiate its claim of majority status through an immediate authorization card check conducted by an impartial third party or by some other mutually agreeable method.
We must also advise you at this time that federal and state labor laws protect the right of employees to participate in union activities and to be presented in collective bargaining by the union of their choice. Any form of employer conduct which interferes with, restrains or coerces employees in the exercise of these protected rights is unlawful. Similarly, any discrimination against employees in retaliation for their union activities is unlawful. We therefore request that you immediately instruct all of you supervisory and managerial personnel to refrain form any threats, harassment, intimidation, coercive interrogation regarding union activities, surveillance of union activities, discrimination against union supporters, or other unlawful conduct.
A prompt response is requested. We look forward to hearing from you.
West Bay Business Agent
Warehouse Union, Local 6, ILWU
March 9 1999
Mr Fred Pecker
West Bay Business Agent, ILWU
Re: Demand for Recognition
Dear Mr Pecker:
I received your letter dated March 2 1999 which demands that DMS recognize ILWU, Local 6 as the exclusive bargaining representative of the employees employed at the San Francisco facility. I wish to inform you that, in good faith, DMS and I doubt that your organization truly represents an uncoerced majority of our employees in an appropriate unit. The only reliable way to determine these questions is through a secret ballot election conducted by the National Labor Relations Board.
The Company will, of course, cooperate fully with any investigation of a petition filed with the Board by your Union, and in any such NLRB secret ballot election which may be conducted among our employees. I also wish to inform you that we further insist on such an BLRB election, not only because of our genuine doubts concerning your organizationâs alleged majority status and the notorious unreliability of so-called "authorizations," but also for the purposes of obtaining the important protections of Section 8(b)(4)(c) and 8 (b)(7)(b) of the National Labor Relationships Act, as amended. As you probably know, any recognition in the absence of such an election would deny DMS and our employees these important protections.
Under all these circumstances, any recognition or collective bargaining negotiations would be inappropriate and premature at this time. Accordingly, your demand for recognition bargaining, and meeting concerning the so-called "authorizations" are denied at this time. We regret you attempt to deny our employees the right to vote by secret ballot in an NLRB election.
DMS San Francisco
LAWYERS LETTER TO DMS
from: Leonard, Carder, Nathan, Zuckerman, Ross, Chin & Remar
to: Tom Finlay, DMS Corporation
March 17, 1999
Re: Legal Claims of DMS employees
Dear Mr. Finlay:
My firm has been retained by the International Longshore and Warehouse Union and a group of current and former employees of DMS Corporation to represent them in litigation regarding a variety of unlawful pay practices. I am writing to acquaint you with these claims and to request that you address these concerns prior to the institution of a lawsuit.
My clients are willing to discuss means of correcting these practices and settling claims prior to the filing of any lawsuit. There are many good reasons to do this. First, because these claims involve wage and hour issues, such as overtime compensation, the statutes protecting the employees require the employer found responsible for violating the law to pay the employeeâs attorney fees as well as their unpaid wages and liquidated, double damages. In many cases the legal fees match or exceed the liability itself. It is therefore often in the employer's best interest to address the claims prior to amassing litigation expenses and attorney fees. Second, the employees we represent are quite willing to discuss a full range of options now; in the future, after litigation has begun, often positions harden and become less flexible than they are prior to legal action. Third, the on-going relationship between your company and their current workforce is an important factor in your company's profitability. Considering these factors, we urge you to discuss these concerns while discussion can be most fruitful, prior to the filling of a lawsuit.
In order to permit you to evaluate your company's liability, we will explain the claims we intend to assert in any lawsuit that we file. We hope that our candid disclosure of these issues prior to filing a lawsuit will encourage a productive effort to resolve the dispute.
(1) Failure to Pay Legally Required Overtime & Minimum Wage Compensation
State and federal law requires overtime compensation for all work performed in excess of 40 hours per week. Prior to January 1, 1998, state law also required overtime for work in excess of 8 hours per day. The law further requires that the "regular" rate of pay used for determining the amount of overtime compensation due an employee paid on a piece rate basis be calculated by dividing the employee's total compensation for a pay period by the total number of hours worked during that period. The employee is then entitled to receive a half-time premium for each hour of work in excess of forty hours in a work week (and, during the period prior to January 1, 1998, in excess of eight hours in any work day). DMS has failed to pay any overtime premium to any of its messengers using the legally mandated methodology.
Instead, DMS has ignored the reality that it has always hired its messengers on a piece rate basis and has fraudulently misrepresented on the messenger's Daily Record of Hours & Expenses their status as piece rate workers. You have attempted to circumvent the overtime law by falsely representing, on these company documents, that they are paid minimum wages for their regular workweek, "overtime" at time and one half the minimum wage for hours over forty. However, on their paychecks the wage is represented as a "commission" payment and the amount does not coincide with the amount resulting from use of the fictitious minimum wage calculation. In addition, you require your employees to "deduct" for a lunch hour they rarely if ever are permitted to take, thus requiring them to falsify their time records. Moreover, it is clear from the paychecks that no overtime is paid. It is well settled under both federal and state law than an employer may not lawfully avoid paying overtime by creating an artificial "regular" pay rate, as DMS has done with its employees. There are numerous state and federal court decisions over the course of the past 50 years holding that such subterfuge to avoid overtime is illegal.
Moreover, it also appears that DMS refused to pay messengers at all from some of their piece work. The employees have been told that they will receive no piece rate payment for deliveries which do not meet an arbitrary time deadline and they have also been refused payments for deliveries about which corrections have been disputed by the company, on the basis that the asserted errors are uncovered of clarified "too late." Thus, the Company is failing to pay the messenger at all for that work.
The failure to pay overtime or to pay even minimum wages for some of the work performed for the company as required by state and federal law results in a finding of liability for unpaid wages but also requires the imposition of liquidated, double damaged under the law for three years. In addition, costs and attorney fees are imposed on the employer who is found to have failed to pay overtime compensation as required.
(2) Improper Page Fee Deductions & Failure to Pay For Losses
You deduct from the employees wages a "fee" of $18 per month for use of your pagers.
Since such pagers are necessary for work, your company is required to provide them without cost to the employee under the California labor code. We are also informed that your company does not compensate employees who suffer losses as a direct consequence of their work, such as having vehicles towed, damaged or stolen while at work. Under state law, an employer is required to compensate employees for all losses they suffer as a consequence of their work, including the replacement of stolen equipment belonging to the employee and replacement of parts needed as a result of work.
The employees are entitled to be reimbursed for their expenses, with interest, for three years.
(3) Business & professions Code Section 17200 Action
The International Longshore and Warehouse Union and the individual employees, current and former, intend to file an action on behalf of the general public and those they represent alleging the Company's various unlawful pay practices constitute unfair business practices in violation of state law. Such an action may be maintained on behalf of all those who have suffered, whether named or unnamed in the suit. We will seek injunctive relief and restitution for all losses suffered by all former and current employees for these illegal practices which have harmed ops many people between 1995 and the present. In a successful action for unfair business practices, the losing party is also required to pay attorney fees.
These substantial concerns are raised in the hopes that your company will take a reasoned approach to resolution of these disputes. We are willing to forego filling this lawsuit for the next two weeks, in order to accommodate efforts to resolve the issues. Please let me know if you wish to set up a meeting to discuss resolution. If we do not hear from you, we will be forced to institute legal action. Thank you for your attention to this matter. We look forward to your earliest reply.
LEONARD, CARDER , NATHAN, ZUCKERMAN, ROSS, CHIN, & REMAR
By Lynn Rossman Faris
A similar letter has also been sent to UltraEx. These aren't just DMS issues. -A