{"id":50,"date":"2019-12-09T18:16:41","date_gmt":"2019-12-09T18:16:41","guid":{"rendered":"https:\/\/www.fedbar.org\/labor-employment-law-section\/\/may-2018\/"},"modified":"2019-12-09T18:16:41","modified_gmt":"2019-12-09T18:16:41","slug":"may-2018","status":"publish","type":"page","link":"https:\/\/www.fedbar.org\/labor-employment-law-section\/le\/circuit-updates\/2018-2\/may-2018\/","title":{"rendered":"May 2018"},"content":{"rendered":"

Second Circuit<\/span><\/strong><\/p>\n

\nMontero v. City of Yonkers<\/em>, 890 F.3d 386 (2d Cir. 2018).<\/strong>\n<\/p>\n

The Court of Appeals holds that police officer spoke on matters of public concern in his capacity as a union representative. As vice president of the union, Montero criticized the police commissioner\u2019s decision to discontinue several police units \u2014 including those dealing with domestic violence and burglary and one dedicated to the Police Athletic League \u2014 that would adversely affect the police department and the community. After Plaintiff suffered retaliation for this speech, he brought this lawsuit, which the district court dismissed on Garcetti grounds, holding that plaintiff spoke pursuant to his job duties. The Second Circuit rejects the district court analysis and finds that Plaintiff engaged in protected speech.\n<\/p>\n

\nThe Court notes \u201cthere may be some confusion as to whether\u201d the issues of \u201cwhether (1) the speech was outside the speaker\u2019s official responsibilities and (2) there was a civilian analogue \u2014 must be answered in the affirmative for the speech to be protected under Garcetti.\u201d But the Court settles that issue in this case. \u201cAlthough the presence or lack of a civilian analogue may be of some help in determining whether one spoke as a citizen, \u2018the critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee\u2019s duties.'\u201d\n<\/p>\n

\nThe Second Circuit issues three primary holdings. First, since Plaintiff\u2019s speech as a union official was not \u201cpart and parcel of his concerns about his ability to properly execute his duties\u201d as he spoke \u201cas union vice president, a role in which he was not required to serve,\u201d his remarks \u201cdid not fall within his employment responsibilities.\u201d The Court does not, however, categorically hold that all speech in the Plaintiff\u2019s capacity as a union member constitutes speech as a private citizen. Since \u201chis union speech was not composed of statements made as a \u2018means to fulfill\u2019 or \u2018undertaken in the course of performing\u2019 his responsibilities as a police officer,\u201d he spoke as a citizen. Second, plaintiff spoke on a matter of public concern because his union remarks opposed the commissioner\u2019s personnel cuts and plaintiff called for a no-confidence vote with respect to the commissioner. Speech about the terminate of police units that would endanger public safety constitutes speech on a matter of public concern.\n<\/p>\n

\nHowever, most of the defendants are entitled to qualified immunity, because the law was not clearly-established at the time of the violation. The Court of Appeals says the state of the case law at the time of the retaliation was too unclear to put Defendants on notice that they were violating the First Amendment. One defendant does not get qualified immunity, at least, for now, because he has not requested it yet.<\/p>\n

Submitted by:<\/strong>
Stephen Bergstein<\/strong><\/a>, Esq.
\nBergstein & Ullrich, LLP
\n5 Paradies Lane
\nNew Paltz, New York 12561
\n(845) 419-2250
www.TBULaw.com<\/a> \u00a0
www.secondcircuitcivilrights.blogspot.com<\/a>\u00a0\u00a0<\/p>\n

\nFifth Circuit<\/span><\/strong><\/p>\n

Benson v. Tyson Foods, Inc<\/em>., 889 F.3d 233 (5th Cir. 2018).<\/strong>\n<\/p>\n

Vanity Benson alleged that she suffered an ankle injury while operating a forklift on the job as an employee of Tyson Foods, causing several broken bones and requiring multiple surgeries, including the placement of screws in her foot. Tyson ultimately terminated the plaintiff for attendance issues and alleged job abandonment, and she sued claiming discrimination under the Americans with Disabilities Act (\u201cADA\u201d), 42 U.S.C. \u00a712101 et seq. on the account of a disability \u2013 her injured foot.<\/p>\n

\nAt trial, the jury determined that the plaintiff did not meet the ADA\u2019s definition of \u201cdisability\u201d and dismissed the claims. The plaintiff did not move for judgment as a matter of law, but later filed motions to interview the jury post-trial and for a new trial, arguing that the jury ignored the evidence in finding that she was not disabled. The district court denied both motions, and the plaintiff appealed.\n<\/p>\n

\nOn appeal, applying an abuse of discretion standard, the Fifth Circuit held that there was ample evidence in the record to support the jury\u2019s conclusion that the plaintiff was not disabled. Among other things, a doctor testified that the plaintiff\u2019s ankle injury had healed correctly and that she required no further treatment, and the plaintiff herself admitted to \u201cfictionalizing details in the initial account of her foot injury,\u201d weakening her credibility. She also acknowledged that she was able to play basketball and work two jobs that required her to stand on her feet. Based on this evidence, the Fifth Circuit concluded that the district court did not abuse its discretion in denying the plaintiff\u2019s motion for a new trial.\n<\/p>\n

\nRegarding the district court\u2019s denial of plaintiff\u2019s counsel\u2019s request to interview the jurors post-trial for purposes of learning the basis of the verdict and improving his trial advocacy, the Fifth Circuit concluded that the First Amendment interests of the plaintiff and her counsel in interviewing the jurors did not balance, and were in fact outweighed by, the jurors\u2019 interests in privacy and the public\u2019s interest in the efficient administration of justice. The Court thus determined that the district court did err in denying the plaintiff\u2019s request to interview the jury. Justice Graves concurred in this ruling, but on different grounds \u2013 that is, that there was no benefit to the plaintiff in interviewing the jury because there could be no retrial.\n<\/p>\n\n


\nDavenport v. Edward D. Jones & Co<\/em>., 891 F.3d 162 (5th Cir. 2018).<\/strong>
\n<\/p>\n

\nTyanne Davenport worked as the Branch Office Administrator for a manager named \u201cCoyne.\u201d During her tenure, Coyne verbally insulted and abused Davenport on various occasions, and when a wealthy potential client (\u201cFisher\u201d) expressed interest in Davenport, Coyne told her that she should date Fisher in exchange for \u201cbig bonuses.\u201d Davenport said that she had a boyfriend and was not interested, but Coyne repeated his offer several more times. Davenport never dated Fisher. At her next performance review, Coyne rated Davenport as \u201cexceeding expectations\u201d and recommended that she receive a 4% salary raise, but she did not receive a bonus.\n<\/p>\n

\nSeveral weeks later, at an informal meeting between Coyne, Fisher, and another financial advisor, at which Davenport was present, Coyne suggested that Davenport provide Fisher with a \u201cnudie picture\u201d so that he would switch his accounts to Coyne\u2019s office. There were no \u201cnudie pictures,\u201d but Davenport was offended and embarrassed. The next day, she reported the incident to associate relations, and an investigation was opened. Davenport requested, and was granted, an extended leave of absence. She then filed a charge of discrimination with the EEOC describing the \u201cnudie picture\u201d incident and her resulting leave of absence, but did not mention the alleged bonus offers. Subsequent discussions regarding a transfer to another branch office did not pan out, and Davenport formally resigned from Edward Jones.\n<\/p>\n

\nAfter receiving a notice-of-right-to-sue from the EEOC, Davenport filed suit alleging quid pro quo and hostile work environment sexual harassment under Title VII as well as various state-law claims, including sexual discrimination, defamation, and \u201cfalse light\u201d invasion of privacy. Edward Jones moved for summary judgment on each of the claims, and the district court granted the motion in its entirety, reasoning that: (1) Davenport had not administratively exhausted the quid pro quo constructive discharge claim; (2) the quid pro quo claim based on the receipt of bonuses in exchange for acquiescence to sexual advances was not cognizable under Fifth Circuit precedent because it did not involve advances with the supervisor; (3) Coyne\u2019s behavior did not rise to the level of an actionable hostile work environment; (4) and the \u201cnudie picture\u201d comments did not demonstrate \u201cmalice\u201d or seriously interfere with her privacy as required for the state law claims. Davenport appealed only the constructive discharge claim, the bonus-based quid pro quo claim, and the invasion of privacy claim.\n<\/p>\n

\nOn appeal, the Fifth Circuit affirmed the district court\u2019s ruling, but on somewhat different groups. As to the constructive discharge claim, the Court agreed that the plaintiff had not presented the claim to the EEOC and thus had not exhausted her administrative remedies on the claim. The Court observed that, among other things, Davenport\u2019s charge did not allege that she left her employment or her reasons for doing so, and while it briefly mentioned the \u201cnudie picture\u201d incident and her extended leave of absence, it did not suggest a link between that incident and her departure from the company.\n<\/p>\n

\nAs to the bonus-related quid pro quo claim, the Fifth Circuit opined that it did not matter that a third-party was to be the beneficiary of the sexual harassment: Coyne made the requests and thus engaged in the sexual harassment, which was enough. Stated another way, the propositioning in a quid pro quo case does need to be for the benefit of the supervisor. In addition, Coyne\u2019s open-ended suggestion that Davenport \u201cdate\u201d Fisher could be regarded as an actionable \u201crequest for sexual favors.\u201d However, two of the three panelists found that Davenport failed to present evidence of a tangible employment action insofar as she did not show that there was actually an available bonus that she was eligible for, which Coyne could approve or disapprove. The third panel member \u2013 Justice Higginson \u2013 would have found a genuine issue as to whether Coyne possessed such authority.\n<\/p>\n

\nFinally, the Fifth Circuit agreed with the district court in its dismissal of Davenport\u2019s state-law invasion of privacy claim, finding that, while offensive, Coyne\u2019s \u201cnudie picture\u201d comment was merely a distasteful joke that was not an unreasonable invasion of Davenport\u2019s privacy.\n<\/p>\n

\n
\nCarley v. Crest Pumping Techs<\/em>., LLC, 890 F.3d 575 (5th Cir. 2018).<\/strong>\n<\/p>\n

\nOil well services provider Crest employed the plaintiffs as cementers. After leaving the company, the plaintiffs filed suit alleging that Crest failed to pay them overtime as required by the Fair Labor Standards Act, 29 U.S.C. \u00a7 201 et seq. (\u201cFLSA\u201d). Crest answered asserting that it was exempt under the Motor Carrier Act (\u201cMCA\u201d).\n<\/p>\n

\nGenerally speaking, the MCA exempts from the FLSA\u2019s overtime provisions employees whose job duties affect the operation and safety of motor transportation on highways in interstate commerce. The exemption primarily applies to truck drivers, mechanics, loaders, and closely related positions. However, the SAFETEA-LU Technical Corrections Act (\u201cCorrections Act\u201d) provides an exception and states that the MCA exemption does not apply \u2013 and overtime must be paid \u2013 if the vehicle in question weighs less than 10,000 pounds.
\nFollowing the close of the plaintiffs\u2019 evidence at trial, Crest moved for judgment as a matter of law, arguing that the exception to the MCA exemption provided by the Corrections Act did not apply because the plaintiffs had not refuted Crest\u2019s evidence that the plaintiffs\u2019 vehicles had a gross vehicle weight rating (\u201cGVWR\u201d) of 11,500 pounds, though they had attempted to show the actual, unloaded weight of the vehicles. The parties disputed the allocation of the burden of proof with respect to the Corrections Act, but in charging the jury, the Magistrate placed the burden of proof on Crest as the employer. The jury returned a verdict for plaintiffs, finding that Crest had failed to carry its burden of proof on the MCA exemption. Crest timely moved for JMOL and, alternatively, for a new trial, both of which motions were denied. Crest appealed.\n<\/p>\n

\nOn appeal, the Fifth Circuit addressed the more technical question of which party must prove the vehicle\u2019s weight in determining whether the Corrections Act provides an exception to the MCA exemption in a given case. As is generally the case with exemptions under the FLSA, the burden of proof with respect to the application of the MCA exemption lies with the employer; however, as the Court observed, the Corrections Act creates an exception to that exemption \u2013 or an exception to an exception \u2013 and was further included in Section 7 of the FLSA, which pertains to the plaintiff\u2019s burden of proof. Thus, while the employer has the initial burden of proving the application of the MCA exemption, the Court held that the employee has the burden of proving a weight that provides an exception to that exemption.\n<\/p>\n

\nThe Fifth Circuit then turned to the question of what constitutes \u201cweight\u201d under the Corrections Act \u2013 GVWR or the actual, unloaded weight of the vehicle. Citing a 2010 Department of Labor bulletin, the Court held that the GVWR is the relevant measure. As Crest\u2019s evidence of the GVWR was undisputed, the Court not only vacated the ruling, but rendered judgment in favor of the employer.\n<\/p>\n\n


\nSubmitted by:<\/strong>
\nLaura E Carlisle
\nBaker, Donelson, Bearman,
\nCaldwell & Berkowitz, PC
\n201 St. Charles Avenue, Suite 3600
\nNew Orleans, Louisiana 70170
\nDirect: (504) 566-8643
\nEmail: lcarlisle@bakerdonelson.com<\/a> \u00a0<\/p>\n

\n<\/span><\/strong>\n<\/p>\n

Sixth Circuit<\/span><\/strong>\n<\/p>\n

\nMys v. Michigan Department Of State Police,<\/em> ___Fed. App\u2019x.\u00ac\u00ac\u00ac___, 2018 WL 2448093 (6th Cir. May 31, 2018)<\/strong>\n<\/p>\n

Linda Mys (\u201cPlaintiff\u201d), a former desk sergeant with the Michigan Department of State Police (\u201cDefendant\u201d), alleged she was retaliated against after filing two complaints of sexual assault and sexual harassment against one of her coworkers. In the district court, Plaintiff was awarded $350,000 in compensatory damages. On appeal, Defendant argued that the district court erred in denying its motion for judgment as a matter of law and requested a new trial or in the alternative its motion for a remittitur. The court of appeals denied Defendant\u2019s request for new trial. Likewise, the court denied Defendant\u2019s motion for remittitur because the jury award for Plaintiff\u2019s pain and suffering was not \u201cclearly excessive.\u201d<\/p>\n

\nAfter Defendant\u2019s appeal was denied, Plaintiff moved for attorney fees and sanctions against Defendant. Defendant did not contest the attorney fees award. However, it contested the $225,000 Plaintiff sought as sanctions for the factual and legal misrepresentations made by Defendant\u2019s attorney. At one point, Defendant\u2019s counsel argued that there was no desk-sergeant vacancy at the post where Plaintiff had been temporarily reassigned, despite multiple witnesses testifying to the contrary. The court found that, although Defendant\u2019s actions merited sanction, $225,000 was excessive as the amount was not tailored to Plaintiff\u2019s actual legal expenses. On this basis, the court awarded $2,500 in sanctions against Defendant in addition to Plaintiff\u2019s attorney fees and costs.\n<\/p>\n\n


\nHutson v. Fed. Express Corp.,<\/em> ___Fed. App\u2019x.\u00ac\u00ac\u00ac___, 2018 WL 2435537 (6th Cir. May 30, 2018).<\/strong><\/p>\n

Cheri Ann Hutson (\u201cPlaintiff\u201d) sued her employer, Federal Express Corp. (\u201cDefendant\u201d) alleging that Defendant discriminated against her due to gender. As evidence of this discrimination, Plaintiff alleged that Defendant denied her a promotion because of her gender. At trial in the district court, the jury found for Defendant and thereafter Plaintiff appealed to the Sixth Circuit requesting a new trial. Eight employees applied for the promotion at issue; seven men and Plaintiff. Plaintiff was selected for an interview; three men did not receive an interview. Plaintiff alleged that the interview process was a pretext for Defendant\u2019s discrimination. However, the testimony of Defendant\u2019s interview team did not indicate that Plaintiff was discriminated against, nor did it indicate that any member of the interview team was sexist or misogynistic. Accordingly, the Sixth Circuit affirmed the decision of the district court.<\/p>\n

\n<\/strong><\/p>\n

Submitted by:<\/strong>
Jessica B.K. Pask<\/a>
\nMiller, Canfield, Paddock & Stone, P.L.C.
\n150 W. Jefferson, Suite 2500
\nDetroit, Michigan, 48226
pask@millercanfield.com<\/a> \u00a0<\/p>\n

\nSeventh Circuit<\/span><\/strong>\n<\/p>\n


\nCarleton Harris v. Allen County Board of Commissioners<\/em>, 890 F.3d 680 (7th Cir. 2018).<\/strong>\n<\/p>\n

The plaintiff sued, the Allen County Board of Commissioners for violations of the Americans with Disabilities Act arising out of his termination, when medical restrictions related to a work-related injury prevented him from returning to his previous position and he could not successfully find other employment with the County. The district court granted summary judgment in favor of the Allen County Board of Commissioners after determining the Board was not Plaintiff\u2019s employer. The Court of Appeals upheld the district court\u2019s grant of summary judgment. In so holding the Seventh Circuit agreed that Plaintiff did not prove the Board sufficiently controlled his employment to qualify as his direct or indirect employer. Under Indiana\u2019s statutory scheme, the Board Commissioners had little, if any, authority to control Plaintiff\u2019s employment. Instead, the control of Plaintiff\u2019s hiring, firing, day-to-day duties, and salary was statutorily delegated to the Allen Superior Court. The Board was given only the statutory ministerial duty to pay certain expenses and Plaintiff presented no evidence that the Board had the ability to terminate or discipline him if his performance evaluation was poor.<\/p>\n

\n<\/em><\/strong><\/p>\n

Quinn R. Heath v. Indianapolis Fire Department<\/em>, 889 F.3d 872 (7th Cir. 2018).<\/strong><\/p>\n

The Plaintiff sued the Indianapolis Fire Department, claiming that the Department denied his application to become a firefighter in retaliation for his father\u2019s False Claims Act complaint. The district court granted summary judgment in favor of the Fire Department on Plaintiff\u2019s retaliation claim, determining that the False Claims Act\u2019s anti-retaliation provisions do not cover job applicants or prospective employees. The Court of Appeals upheld the district court\u2019s grant of summary judgment, but on other grounds. The Seventh Circuit found that even assuming that the meaning of \u201cemployee\u201d under \u00a7 3730(h) of the False Claims Act is broad enough to encompass job applicants or prospective employees, there were no facts from which a jury could conclude that Plaintiff was retaliated against because of his father\u2019s qui tam suit. Under a local ordinance governing the Department\u2019s hiring, an academy class is to be filled in rank order, starting with the top candidate on the list. Then, the fire chief can exercise discretion to fill the remaining twenty percent of the class. Plaintiff could not demonstrate based on his academy ranking that he would have been hired as an automatic or discretionary selection. Plaintiff was ranked, at best, five spots too low to receive an automatic selection to an academy class. And every discretionary pick in both classes had more markers than Plaintiff, consistent with the Department\u2019s policy for discretionary selections. Thus, Plaintiff failed to present any evidence that his father\u2019s qui tam suit was even a motivating factor in the decision not to hire Plaintiff.<\/p>\n

\n<\/em><\/strong>\n<\/p>\n

Lorenzo Davis v. City of Chicago<\/em>, 889 F.3d 842 (7th Cir. 2018).<\/strong><\/p>\n

Plaintiff, a supervisor for Chicago\u2019s Independent Police Review Authority, sued his employer, the City of Chicago, for violating his First Amendment Rights after he was terminated for refusing to change his findings in a number of investigations into police misconduct. The district court dismissed Davis\u2019s claim, after determining that Plaintiff\u2019s refusal to change his reports was not protected speech under the First Amendment. The Court of Appeals upheld the district court\u2019s dismissal. In so holding, the Seventh Circuit reiterated that for a public employee to show that his speech is protected under the First Amendment, s\/he must demonstrate that s\/he made the speech as a private citizen, the speech addressed a matter of public concern, and his\/her interest in expressing that speech was not outweighed by the state\u2019s interests as an employer in \u2018promoting effective and efficient public service.\u2019 Whether an employee speaks as an employee or a citizen depends on whether the speech was made pursuant to his or her official duties. Because Plaintiff\u2019s refusal to change the reports was pursuant to his job duties, he spoke as a public employee rather than a private citizen. His speech, therefore, fell outside of the First Amendment\u2019s scope.\n<\/p>\n

\n<\/em><\/strong>\n<\/p>\n

Webb v. Financial Industry Regulatory Authority, Inc<\/em>., 889 F.3d 853, 859 (7th Cir. 2018).<\/strong><\/p>\n

Plaintiff, a former executive with a securities firm, challenged his termination in the Financial Industry Regulatory Authority\u2019s (\u201cFINRA\u201d) arbitration forum pursuant to the terms of his employment agreement. FINRA also required Plaintiff to sign an arbitration agreement. Prior to the arbitrator entering a final decision, Plaintiff withdrew his claim. Plaintiff then sued FINRA in the Circuit Court of Cook County, Illinois, alleging that FINRA breached its contract to arbitrate his employment dispute. FINRA removed the dispute to federal court. The district court held that FINRA was entitled to arbitral immunity and dismissed the suit. The Court of Appeals independently raised a jurisdictional challenge and vacated the district court\u2019s judgment for lack of jurisdiction with instruction to the district court to remand the case to state court. The Seventh Circuit Court of Appeals held that diversity jurisdiction did not exist, as the amount in controversy did not exceed $75,000. In so holding, the Seventh Circuit Court of Appeals found that the complaint satisfies the amount in controversy requirement only if Illinois law permitted the Plaintiff to recover his legal expenses from the underlying arbitration, the present suit, or both. The Court concluded that while Illinois law permits the recovery of legal fees as damages in limited circumstances, those circumstances were not present in this case. In addition, because Plaintiff\u2019s suit against FINRA was a state-law contract claim for breach of an arbitration agreement, federal question jurisdiction did not exist.\n<\/p>\n

\n<\/strong><\/p>\n

Submitted by:<\/strong>
Kathleen A. Barrett<\/a>
\nAttorney At Law
\n312.795.3262
\nkabarrett@littler.com
\n321 North Clark Street, Suite 1000
\nChicago, IL 60654 <\/p>\n

\nD.C. Circuit<\/span><\/strong>\n<\/p>\n

\nDrielak v. Pruitt<\/em>, 890 F.3d 207 (D.C. Cir. 2018).<\/strong>\n<\/p>\n

In Drielak v. Pruitt, the D.C. Circuit affirmed the trial court\u2019s grant of summary judgment in favor of the federal government agency employer, holding that the employee had failed to timely exhaust his administrative remedies with respect to the bulk of his claims, and that the claims that were exhausted did not involve adverse employment actions.<\/p>\n

\nThe employee\u2019s claim largely revolved around his allegation that his unsuccessful applications for numerous open positions within the agency were the result of age discrimination. However, the court found that this claim had not been timely exhausted because the employee had not contacted an EEO counselor at his agency within 45 days of the alleged discriminatory acts as required by federal employment regulations. The court declined to extend the deadline due to the employee\u2019s ignorance because the employee was on notice of the alleged discrimination each time that he knew he had been passed over in favor of a younger applicant.\n<\/p>\n

\nAs to the employee\u2019s timely claims, the court held that they did not involve adverse employment actions. The court analyzed the employee\u2019s contention that he had been disinvited from meetings and had some of this subordinate employees reassigned, and found that these changes did not significantly affect the employee\u2019s employment.\n<\/p>\n

\nInternational Longshore & Warehouse Union v. National Labor Relations Board<\/em>, ___ F.3d ___, 2018 WL 2406295 (D.C. Cir. May 29, 2018).<\/strong><\/p>\n

In International Longshore & Warehouse Union v. National Labor Relations Board<\/em>, the D.C. Circuit reviewed a dispute between two rival unions, and affirmed the NLRB\u2019s ruling that the successor union had committed an unfair labor practice by accepting recognition from the employer where the predecessor union\u2019s bargaining authority had been wrongfully terminated.
\n,p>
\nThe two rival unions, ILWU and IAM, represented West Coast port workers. The employer had a collective bargaining agreement with ILWU, but when it won a contract requiring the use of IAM labor, it formed a subsidiary to perform the contract, which subsidiary entered a collective bargaining agreement with IAM. Years later, the various contracts performed by the employer and its subsidiary were consolidated, and the employer\u2019s bid was selected over the subsidiary\u2019s due to a difference in price attributable to labor and benefit costs. The subsidiary then shuttered its operations and laid off all of its employees, though more than 75% of the employees were immediately re-hired by the employer to perform the same jobs they had previously performed for the subsidiary. The re-hired employees were required to become ILWU members. The subsidiary refused to bargain with IAM regarding the termination, arguing that it did not control its cessation in operations due to the loss of the contract.\n<\/p>\n

\nIAM filed an unfair labor practice charge against ILWU, the employer, and the subsidiary. The employer and subsidiary settled the claims against them, leaving the dispute as one between the two unions. The court noted that under the NLRA, a union commits an unfair labor practice where it exercises exclusive bargaining authority it does not have or causes an employer to require employees to become members of a union that does not represent the bargaining unit. Although the employer had settled and was no longer part of the case, the critical analysis turned on whether IAM remained the appropriate representative because the subsidiary\u2019s decision to shut down operations without bargaining was improper.\n<\/p>\n

\nCritical to the court\u2019s holding was the fact that all parties had stipulated that the employer and subsidiary were a \u201csingle employer\u201d for purposes of the NLRA. Based on that stipulation, the employer could not unilaterally divert work away from the IAM-represented subsidiary to its ILWU-represented operations without bargaining with IAM. Although an employer can make such decisions for independent economic reasons unrelated to labor relations, the court noted that the subsidiary had lost its contract due to its higher labor costs, which are a prime subject of bargaining. On this point, the court noted that the two employers had always been a single employer (thus distinguishing merger cases), the same employees continued to perform the same work, and the employer did not lose its client but merely shifted the contract from one part of its operation to another.\n<\/p>\n\n


\nStaffCo of Brooklyn, LLC v. National Labor Relations Board<\/em>, 888 F.3d 1297 (D.C. Cir. 2018).<\/strong>\n<\/p>\n

\nIn StaffCo of Brooklyn, LLC v. National Labor Relations Board<\/em>, the D.C. Circuit affirmed an NLRB finding that and employer committed an unfair labor practice by discontinuing pension contributions upon the expiration of its collective bargaining agreement, and rejected the employer\u2019s defense that the union had waived its right to bargain regarding the contributions.\n<\/p>\n

\nThe employer provided non-physician staff at a hospital. Under its collective bargaining agreement, the employer agreed to participate and contribute to the union\u2019s pension plan. The plan document stated that the employer\u2019s participation in the plan would terminate and employee service would no longer be credited upon the expiration of the collective bargaining agreement. After expiration of the collective bargaining agreement, the employer in reliance upon the plan document discontinued contributions, though it continued to employ four union employees for a period of several months.\n<\/p>\n

\nUnder the NLRA, an employer cannot make unilateral changes in existing terms and conditions of employment, but must bargain with the union about those changes. This rule continues to apply when a collective bargaining expires, as the employer is required to maintain the status quo until there is a new collective bargaining agreement, an impasse, or a waiver of bargaining rights by the union.\n<\/p>\n

\nIn this case, the employer primarily argued that the union had waived its rights. The D.C. Circuit rejected this argument. First, it distinguished the language of the pension plan from that in previous cases where it had found waiver. The court noted that, unlike the language here, the language in previous cases had expressly allowed the employer to cancel its obligations. Second, the court found that the union had met its obligation to timely request bargaining by requesting that the employer continue contributions. Finally, the court narrowly rejected the employer\u2019s argument that the plan language made its compliance impossible, pointing out that the employer had not attempted to tender plan contributions and been refused.\n<\/p>\n

\nPrime Healthcare Services-Encino, LLC v. National Labor Relations Board<\/em>, 890 F.3d 286 (D.C. Cir. 2018).<\/strong> <\/p>\n

\nIn Prime Healthcare Services-Encino, LLC v. National Labor Relations Board<\/em>, the D.C. Circuit upheld an NLRB ruling that the employer committed an unfair labor practice by discontinuing salary increases upon the expiration of its collective bargaining agreement.
\nThe collective bargaining agreement in question was in effect from January 1, 2007 to March 31, 2011. Upon its expiration, the employer and union could not reach any agreement as to an extension or successor agreement. The collective bargaining agreement contained two provisions regarding salary increases. The first, Section 3, provided for all employees to receive specific increases on four specific dates, the last of which occurred in 2010 prior to the collective bargaining agreement\u2019s expiration. The second, Section 5, provided for step increases on the anniversary of each employee\u2019s hire date. Section 5 referred to Section 3 in two ways: first, it said that the anniversary increases were in addition to the Section 3 increases, and, second, it stated that the total salary increase for any employee could not exceed 9.25% in any year.\n<\/p>\n

\nIt was undisputed that Section 3 did not survive the expiration of the collective bargaining agreement because all of the increase dates had passed. However, the employer claimed that Section 5 also expired because it referred to Section 3. The court rejected this argument. First, it noted that, unlike Section 3, Section 5 conspicuously did not provide for the benefit to cease with the agreement\u2019s expiration. The two provisions created distinct benefits that operated independently. Because there was no date certain for the raises in Section 5, and employees would continue having anniversaries after the agreement expired, the anniversary raises survived the agreement and could not be unilaterally terminated by the employer.\n<\/p>\n\n


\nLocal 58, International Brotherhood of Electrical Workers (IBEW), AFL-CIO v. National Labor Relations Board<\/em>, 888 F.3d 1313 (D.C. Cir. 2018).<\/strong><\/p>\n

In Local 58, International Brotherhood of Electrical Workers (IBEW), AFL-CIO v. National Labor Relations Board<\/em>, the D.C. Circuit considered a labor union\u2019s challenge to an NLRB decision holding that the labor union\u2019s policy requiring workers seeking to resign to appear in person at the union hall with picture identification was an unfair labor practice.<\/p>\n

\nUnder the Labor Management Relations Act, payments from an employer to a union are generally prohibited with an exception for the deduction of union dues pursuant to a written authorization from the employee. The NLRB has construed the National Labor Relations Act to protect an employee\u2019s right to revoke prior authorizations. The NLRB\u2019s case law distinguishes between policies restricting union members\u2019 revocation rights and those constituting mere ministerial requirements.\n<\/p>\n

\nThe policy in question required a member seeking to resign his or her membership or revoke a dues deduction authorization to appear in person at the union hall with picture identification and a written request. The policy stated that if a member thought that personal appearance was an undue hardship, the member could contact the union hall to make alternative arrangements, but gave no examples of what alternative arrangements might be permitted.\n<\/p>\n

\nThe court upheld the NLRB\u2019s finding that the policy was unduly burdensome to union members who lived or worked at a distance from the union hall, and was also unduly burdensome because some members seeking to avoid a face to face encounter with a union representative would be chilled from exercising their rights. The court also noted that the policy\u2019s provision permitting alternative arrangements was ambiguous as to what arrangements would be accepted and as to whether the union had the ultimate discretion to determine if an arrangement was acceptable.\n<\/p>\n

\nIn so ruling, the court noted that not every procedural requirement will unlawfully burden members\u2019 rights, but that the NLRB\u2019s finding that the requirement in question was impermissible was reasonable.\n<\/p>\n\n


\nTramont Manufacturing, LLC v. National Labor Relations Board<\/em>, 890 F.3d 1114 (D.C. Cir. 2018).<\/strong><\/p>\n

In Tramont Manufacturing, LLC v. National Labor Relations Board, the D.C. Circuit addressed the rights of a successor employer under National Labor Relations Board v. Burns International Security Services, Inc., 406 U.S. 272 (1972). The Burns case held that such employer\u2019s are not required to adopt the collective bargaining agreement imposed by their predecessor, but instead can unilaterally set the rehired workers\u2019 initial terms and conditions of employment pending the negotiation of a new collective bargaining agreement.<\/p>\n

\nThe employer in this case had elected that option after purchasing the assets of a bankrupt company and agreeing to rehire its workers and recognize their union. The employer set its unilateral employment terms out in an employee handbook, which contained a section providing that management could decide to implement a reduction in force and select the employees subject to the reduction. The employer and NLRB agreed that the handbook provision permitted the employer to implement the layoffs without bargaining, but disagreed on whether the employer was required to bargain over the effects of the layoffs.\n<\/p>\n

\nThe employer argued that the handbook\u2019s layoff provision displaced any obligation to bargain over layoff effects. The D.C. Circuit typically applies a \u201ccontract coverage\u201d standard in undertaking such an analysis, reasoning that if the union and employer enter a collective bargaining agreement covering a matter, there is no further obligation to bargain because the union\u2019s and employer\u2019s rights are fixed by the agreement. The court agreed with the NLRB, however, that such a standard is inapplicable to terms unilaterally imposed by a successor employer pursuant to Burns, because there is no bargained for contract.\n<\/p>\n

\nThe court also questioned the NLRB\u2019s application of its preferred \u201cclear and unmistakable waiver\u201d analysis, which requires that a union contractually relinquish a bargaining right in clear and unmistakable terms. The court explained that it could not see how a waiver analysis would fit the scenario where an employer unilaterally implements employment terms. The court thus remanded the case to the NLRB to reconsider or fully explain its decision to apply the waiver analysis and also to address prior precedents identified by the employer.\n<\/p>\n\n

Submitted by:
<\/strong>Jack Blum<\/a>
<\/strong>Paley Rothman
\n4800 Hampden Lane 6th Floor
\nBethesda, MD 20814
\n301-968-3415
<\/strong>jblum@paleyrothman.com<\/strong><\/a> <\/strong><\/p>\n

<\/strong><\/strong><\/p>\n

<\/p>\n","protected":false},"excerpt":{"rendered":"

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