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Gentry: Cert denied
March 31, 2008 by Ross Runkel at LawMemo
The US Supreme Court denied certiorari in Circuit City Stores, Inc. v. Gentry on March 31. (This case was Gentry v. Superior Court (Supreme Court of California 08/30/2007) (4-3 vote)).
Robert Gentry brought a class action suit claiming that the employer had misclassified salaried customer service managers as exempt from the overtime provisions of the California Labor Code. Because Gentry had signed an agreement to arbitrate, and the agreement contained a class action waiver, the trial court ordered arbitration on an individual basis. The California Court of Appeal affirmed; the California Supreme Court (4-3) reversed.
The California Supreme Court held that in some cases a class arbitration action waiver may be contrary to public policy.
Rather than relying on the unconscionability doctrine, the court focused on the fact that Gentry's claim dealt with the "unwaivable" statutory right to receive overtime pay.
The California Supreme Court concluded that:
"under some circumstances such a provision would lead to a de facto waiver and would impermissibly interfere with employees' ability to vindicate unwaivable rights and to enforce the overtime laws.""[W]hen it is alleged that an employer has systematically denied proper overtime pay to a class of employees and a class action is requested notwithstanding an arbitration agreement that contains a class arbitration waiver, the trial court must consider the factors discussed above: the modest size of the potential individual recovery, the potential for retaliation against members of the class, the fact that absent members of the class may be ill informed about their rights, and other real world obstacles to the vindication of class members’ right to overtime pay through individual arbitration. If it concludes, based on these factors, that a class arbitration is likely to be a significantly more effective practical means of vindicating the rights of the affected employees than individual litigation or arbitration, and finds that the disallowance of the class action will likely lead to a less comprehensive enforcement of overtime laws for the employees alleged to be affected by the employer’s violations, it must invalidate the class arbitration waiver to ensure that these employees can 'vindicate [their] unwaivable rights in an arbitration forum.'" The California court remanded for findings on these issues.
(Oh my. I predicted [here] that the US Supreme Court would deny cert in this case.)
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Supreme Court tackles political activities payroll deductions
March 31, 2008 by Ross Runkel at LawMemo
The US Supreme Court granted certiorari March 31 to decide Ysursa, Idaho Secretary of State v. Pocatello Education Association [Details, all briefs]
Formal Question Presented by the cert petition:
"Does the First Amendment to the United States Constitution prohibit a state legislature from removing the authority of state political subdivisions to make payroll deductions for political activities under a statute that is concededly valid as applied to state government employers?"
Background:
An Idaho state statute prohibits local government employers and school employers from making payroll deductions for "political activities," defined as "electoral activities, independent expenditures, or expenditures made to any candidate, political party, political action committee or political issues committee or in support of or against any ballot measure."
The 9th Circuit held that this statute is unconstitutional in that it violates the first amendment rights of the labor unions who represent the employees. The 9th Circuit reasoned that (1) the "restriction on voluntary political contributions" was a burden on political speech in that it would decrease the revenues available to the labor unions to use for political speech; (2) the law is a form of content discrimination; (3) content-based restrictions on political speech are subject to strict scrutiny; (4) the state offered no compelling interest in favor of the law.
The 9th Circuit rejected the state's attempts to have the statute analyzed under two exceptions to the strict-scrutiny standard. (1) Government can refrain from paying for speech with which it disagrees, but the State does not subsidize the payroll systems of local government. (2) Government's ability to regulate speech in a public forum (here defined as the local governments' payroll deduction programs) did not apply because neither the local workplaces nor the local payroll systems are "property of the State of Idaho."
My view: The State of Idaho (Ysursa) will win; the 9th Circuit will be reversed.
The 9th Circuit opinion was amazingly wooden, consisting of a recital and review of past decisions that were designed to resolve very different questions.
The US Supreme Court should view this case as raising a question far different from the questions raised in previous cases.
I expect the majority will hold that the State of Idaho has the power to control the payroll deduction system used by local governments and school districts, and that barring deductions for "political purposes" is a neutral (not discriminatory based on content) regulation that does not need to be justified by a "compelling state interest." They probably will point out that labor unions do not have a first amendment right to have local governments and school districts do the work of collecting political contributions for them.
If Idaho can implement its statute, the labor unions will remain free to collect money for political purposes. They just won't have the assistance of state governments and local school districts.
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Schaumber to chair NLRB
March 19, 2008 by Ross Runkel at LawMemo
Peter C. Schaumber will be the chairman of the (now) two-Member NLRB. It's sad that the President and Senate cannot get together to fully staff the National Labor Relations Board. Meanwhile, congratulations to Member Schaumber, a capable and conscientious Member.
The NLRB press release:
N.L.R.B. BULLETIN Division of Information Washington, D.C. March 18, 2008MEMBER PETER C. SCHAUMBER DESIGNATED NLRB CHAIRMAN
The White House today announced that President Bush intends to designate Peter C. Schaumber as Chairman of the National Labor Relations Board. Member Schaumber is currently serving his second term as a Board Member, his first term having expired on August 27, 2005. He served under a recess appointment by President Bush from September 1, 2005 to August 3, 2006, when he was confirmed by Senate for a second term expiring on August 27, 2010.
In a statement, Member Schaumber said:
The President’s announcement is an honor and privilege. I look forward to serving as Chairman of the National Labor Relations Board. I pledge to carry out my responsibilities with the utmost respect for the rule of law and for the protections afforded to all parties subject to the National Labor Relations Act. The stewardship of the NLRB is vital to protect workplace democracy and promote collective bargaining. I thank the President for the faith and trust he has placed in me.Member Schaumber began his legal career as an Assistant United States Attorney for the District of Columbia. After government service, he practiced law with Colton and Boykin (1980 – 1987) and with Wickwire Gavin (1987 – 1993), and he served as a full-time labor arbitrator.
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Chamber v. Brown predictions
March 19, 2008 by Ross Runkel at LawMemo
Chamber of Commerce v. Brown was argued this morning at the US Supreme Court. [Details; briefs] [Transcript of argument]
I have nothing better to do than make a prediction on the outcome of this important case.
My view: California (Brown) will win, 6-3 or better.
Paul Secunda's (Workplace Prof Blog) view: Chamber of Commerce will win, 6-3.
California's statute simply says that an employer that receives state funds or grants cannot spend that money "to assist, promote, or deter union organizing." Violation of that restriction, of course, carries penalties.
The Chamber argues that California's statute is preempted by two well-known preemption doctrines. California disagrees, saying that the statute acts in a neutral way to keep employers from spending state money to deter union organizing.
Today's oral argument was interesting because there was a good discussion of labor law preemption, and the distinction between the State acting in a proprietary role versus a regulatory role.
I believe the Court will surprise many onlookers by using a reasoning process that goes something like this:
- The Court does not like facial challenges to the legality of statutes. Does not like them at all. For example: Washington State Grange v. Washington State Republican Party (March 18, 2008 ); Gonzales v. Carhart (2007).
- The case raises serious questions of federalism and state sovereignty, which will be resolved as follows: Once a state decides to give money to a private party, the state has the power to limit what the money is spent for, even though it appears that the state is meddling with national labor policy. National labor policy does not require states to allow state funds to be used for anti-union or pro-union advocacy.
- To the extent that California employers are concerned that the statute unduly tangles them in red tape or has a real-life effect of regulating labor relations, they can attack the statute as it has been applied.
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NLRB proposes new form of joint petitions for consent election
March 09, 2008 by Ross Runkel at LawMemo
NLRB is proposing to adopt a new form of consent election, featuring a joint union-employer petition, eliminating a requirement of a showing of interest, not allowing unfair labor practice charges to block the election, and allowing final resolution of disputes to be made by the Regional Director. The Board seeks written comments which must be received on or before March 27, 2008.
Federal Register notice (02/26/2008)
The current proposal for revision of the Board's Rules and Regulations would create a new, voluntary procedure whereby a labor organization and an employer could file jointly a petition for certification consenting to an election. The petition will provide the date on which the parties have agreed for an election, not to exceed 28 days from the date of the filing of the petition, and the place and hours on which the parties have agreed for an election. In addition, the petition will provide a description of the bargaining unit that the parties claim to be appropriate, the payroll period for eligibility to vote in the election, and the full names and addresses of employees eligible to vote in the election. If the petition lacks any necessary information, the Regional Director will so advise the parties and request that the petition be corrected.
No showing of interest is required to be filed with the petition. If it appears to the Regional Director that the information provided on the petition is accurate and sufficient and that the bargaining unit description is appropriate on its face and not contrary to any statutory provision, the petition will be docketed. Within 3 days of the docketing of the petition, the Regional Director will advise the parties of his/her approval of their request for an election. The parties' agreement as to the date, place, and hours of the election will be approved by the Regional Director, absent extraordinary circumstances.
Also within 3 days of the docketing of the petition, the Regional Director will send to the employer official NLRB notices, informing employees that the joint petition for certification has been filed and specifying the date, place, and hours of the election. These notices must be posted by the employer in conspicuous places where notices to employees are customarily posted and must remain posted through the election. Failure to post these notices as required shall be grounds for setting aside the election whenever proper and timely objections are filed under the provisions of Sec. 102.69(a). In addition to these notices, the employer must also post copies of the Board's official Notice of Election in conspicuous places at least 3 full working days prior to 12:01 a.m. of the day of the election, as required under Sec. 103.20 of the Board's Rules and Regulations.
Any motions to intervene may be filed with the Regional Director in accordance with Sec. 102.65 of the Board's Rules and Regulations, except that any such motion must be filed within 14 days from the docketing of the petition. The Board's traditional intervention policies regarding levels of intervention and the intervenor's corresponding rights to appear on the ballot, seek a different unit either in scope or composition, or insist on a hearing, will be applicable.
Unfair labor practice charges, including those alleging Section 8(a)(2) or Section 8(a)(5) violations of the National Labor Relations Act, will not serve to block the election or cause the ballots cast in the election to be impounded, but will be handled in conjunction with any post-election proceedings. All election and post-election matters will be resolved with finality by the Regional Director. Except as outlined above, the Board's traditional election rules and policies will apply, including those relating to withdrawal or dismissal of the petition.
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No individual liability for retaliation
March 03, 2008 by Ross Runkel at LawMemo
Well, it's official.
An employee does NOT have a cause of action against an individual supervisor for retaliation under California's Fair Employment and Housing Act (FEHA).
Jones v. The Lodge at Torrey Pines (California Supreme Court 03/03/2008) (4-3 vote).
We've known since 1998 that there was no personal liability under FEHA for discrimination.
There was reason to believe that the California court would recognize personal liability for retaliation simply because the retaliation statute has different wording. But not so.
Only the employer itself - not the individual supervisor or manager - is liable for discrimination or retaliation under FEHA.
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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