The Coastal Post - August, 1997

Whistlestop Revisited

BY KAREN NAKAMURA

For the past three months, the Coastal Post has been looking into problems at the Marin Senior Coordinating Council, better known as Whistlestop, the respected and much-needed community organization which serves the disabled and elderly-our family and friends.

We've found that drivers at Whistlestop Wheels are paid low wages and receive only a 50/50 split on health benefits. In contrast, the CEO Ed Ryken, paid by the County of Marin, receives an excellent salary, full benefits and pension options available to county workers.

When full-time drivers tried to unionize so they could receive a living wage and similar health and pension benefits, Ryken and the Board of Directors called in a high-powered, union-busting law firm to out-maneuver the workers. They then "downsized" the drivers' organizers.

Central to the discussion is whether the ERISA Act applies. This federal statute states that if one employee receives X benefits, then all other employees are eligible for the same. The act does not apply to wages.

The U.S. Supreme Court handed down a decision in May concerning this issue in a case filed by former employees against the Atchison, Topeka and Santa Fe Railroad and its parent company, Santa Fe Terminal Services, Inc.

In the downsizing frenzy of the early '90s, Santa Fe followed suit. They laid off employees and contracted out work by opening up to bidding jobs that had previously been performed by its employees. Santa Fe then gave its employees a brutal choice: Go with the new company, which offered no benefits, or be laid off.

This switch has been cleverly achieved many times by using such methods as closed shops (in this case, closed to unions such as at Whole Foods), use of temporary workers (temp agencies are America's biggest employer), and the extended use of independent contractors.

Workers charged that contracting out their work was a way for Santa Fe to get out of providing benefits it promised under a collective bargaining agreement.

Supreme Court Justice Sandra Day O'Connor stated in her opinion that the court was clarifying federal benefits protections. It ruled that companies cannot reduce or discharge workers just to cut the cost of providing health and other benefits.

The Justices said the main federal benefits law, ERISA-Employee Retirement Income Security Act-covers benefits from health, pension and disability insurance to scholarship programs.

Business groups argued that such a ruling would prevent employers from considering the costs of benefits in discussions concerning closing plants, outsourcing or divestment of subsidiaries.

But groups representing workers (i.e., unions) rebutted that Congress's intent, when ERISA was enacted in 1974, was to restrict the companies' ability to interface with the benefits employees rely on. Restated, the familiar tactic of business to shaft their workers for increased profits was declared illegal.

The House recently interjected a provision into the current tax bill approving a new test to determine who's an independent contractor. The new guidelines are opposed by the Clinton administration, which states it would strip millions of workers of basic benefits.

Many feel Congress is trying to redefine the law and change the court's decisions so that they can eliminate all employment taxes including withholding, social security, and Medicare taxes. Workers would also be excluded from pension plans. In effect, if passed, a small employer could hire only independent contractors and still qualify for tax-exempt benefits for himself and his family.

How does this impact the local situation of the CEO of Marin Senior Coordinating Council receiving full benefits while his employees receive less?

Both the County of Marin and the Golden Gate Bridge Transit, which oversee the Whistletop Wheels transportation program, have collective bargaining agreements that provide excellent health insurance and pensions.

However, in the crunch, the Golden Gate Bridge District and the County of Marin devised a plan to privatize their services to the elderly and disabled by contracting out the work to Whistlestop. By doing this, they avoided paying equal wages and benefits awarded in contracts hammered out by negotiators from the union, the county, and the bridge district.

The Post called Bernie Chiravelli, president of the Communications Workers of America Local #9404 about the status of the situation.

Referring to Congress' new move, he answered:

"That's the same way they brought in temporary workers in the 1984 Tax Reform Act. Changes were made in the tax laws that made it more profitable for employers to use temporary workers and contractors to avoid paying pensions and benefits.

"In '84, the labor movement was able to slow down the employers by the legal interpretation of what was an employee. Case law had established that the one who has the right of control over someone else's work is the legal employer. So in most cases it was found that employers were violating the law by arbitrarily calling employees independent contractors.

"Congress changed the tax laws so tax exemption applies only when the qualifications are met. And one of those is that everyone must be treated equally. Just like the Whistlestop situation. The Marin Senior Coordinating Council is clearly subject to ERISA laws.

"Both the County of Marin, which employes Mr. Ryken, and the Golden Gate Bridge Transit receive federal and state tax dollars to provide transportation services to the elderly and disabled.

"They decided to follow in the footsteps of corporate America and join in the downsizing and the privatizing of government services. To avoid negotiated health and pension benefits, the county and GGBT decided to contract this service out.

"That action appears to be right in line with what the Supreme Court said was illegal. It appears that either the County of Marin, Golden Gate Bridge Transit or the Marin Senior Advisory Council, or all, are going to be liable for equal benefits that have been denied to those employees for a number of years."

This could have considerable impact. We'll continue to watch developments both local and national.

Whistlestop's Ed Ryken

BY KAREN NAKAMURA

In the Post's series on Whistlestop, it should be understood that the CEO of Marin Senior Coordinating Council, better known as Whistlestop, Ed Ryken, is a well-meaning man and has basically done a good job.

The problems surrounding him, however, are indicative of management methods used for the past 12 years and which are now coming home to roost.

Machivellian methods have gained a hold in the workplace. Step on whoever's under you because they're too stupid to understand what's happening, and profits are more important than a sense of fair play.

As a result, the overworked, underpaid employees of America have had enough.

For instance, this reporter received an anonymous letter from what could be termed a "disgruntled employee." With well-documented accusations, the employee states that not only does Mr. Ryken receive an excellent salary and benefits, he also receives numerous perks. One of these is leading most of the interesting trips Whistlestop affords its members, for example, the Spring Fling to Hawaii April 28-May 7. This luxury package included three nights on the Big Island, four nights on Maui, two nights on Oahu and a day trip to Lanai. There was a catamaran ride, tour of the volcanos National Park, a picnic on a beach and visits to Pearl Harbor and Iolani Palace. The cost was $2,756 for a double and $3,476 for a single.

Most trips, however, are day or overnight trips such as visits to Sacramento, Tahoe and the wine country. There are stops at lovely restaurants and strolls to shops and vineyards. They also see almost every Broadway play and musical that comes to San Francisco. In short, they're trips most Marinites would enjoy.

The problem lies in the fact that, as travel director, Mr. Ryken takes these trips free. Most senior organizations have someone other than the CEO in charge of trips.

His wife often goes along, although she may pay her own way. However, from available information, her travel agency, Rainbow Chasers, handles arrangements.

Like Mr. Ryken's salary being paid by the County of Marin, this arrangement was probably begun for the sincere greater good of all concerned. It's conceivable the agency was formed solely to gain cheaper prices on group rates.

However, these trips are not put out to bid and Mrs. Ryken can be assumed to receive the standard commission. As far as Mr. Ryken receiving a freebie trip as travel director, well, maybe that's okay. No doubt he works hard and has many responsibilities.

However, at the same time, he's being well paid to run the Whistlestop day-to-day. The travel schedule shows approximately two one-day or overnight trips a month with a longer trip scheduled every six months.

Nice work if you can get it.