Tuesday, August 14, 2018

Cal. Dept. of Industrial Relations v. AC Transit

(CA1/4 A142799 8/13/18) Non-Air Conditioned Buses.Outdoor Places of Employment

In this appeal, we consider a narrow question of regulatory interpretation:  Can the interior of a non-air-conditioned bus be deemed an “outdoor place of employment” for purposes of the heat illness prevention standards promulgated by the California Occupational Safety and Health Standards Board (Standards Board) as stated in section 3395 of title 8 of the California Code of Regulations (section 3395)?  After the Department of Industrial Relation’s Division of Occupational Safety and Health (Division) cited the Alameda-Contra Costa Transit District (AC Transit) for several violations of section 3395 involving its non-air-conditioned buses, AC Transit sought administrative review, arguing, among other things, that the buses were not “outdoor” places of employment for purposes of the heat illness prevention regulation.  The Occupational Safety and Health Appeals Board (Appeals Board) ultimately agreed, affirming the dismissal of the appealed-from violations by one of its administrative law judges (ALJ).  However, after the Division filed a petition for writ of mandate in the trial court disputing this decision, the trial court determined that the Appeals Board’s definition of “outdoor” was too narrow and issued a peremptory writ of mandate instructing the Appeals Board to reconsider the matter using a broader definition of outdoor that could include non-air-conditioned vehicles.  Both AC Transit and the Appeals Board appealed.  We conclude—based upon our independent analysis of the question—that the trial court’s construction of section 3395 is well supported both by the language of the regulation and by its related regulatory history.  We therefore remand the matter for further proceedings consistent with our analysis.

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Friday, August 10, 2018

Clark v. City of Seattle

A group of drivers did not raise a viable challenge to a city ordinance that establishes a multistep collective-bargaining process between "driver-coordinators" and for-hire drivers under Sec. 8(b)(4) or Sec. 8(e) of the National Labor Relations Act because the disclosure of the drivers' information to a labor union was neither a concrete nor a particularized injury.

Clark v. City of Seattle - filed Aug. 9, 2018
Cite as 2018 S.O.S. 17-35693

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Tuesday, August 7, 2018

NLRB Announces Opportunity for Voluntary Early Retirement and Separation for Select Agency Positions

Today, the National Labor Relations Board (“NLRB” or “the Agency”) announced that it will offer voluntary early retirement and voluntary separation to employees holding eligible positions in designated locations within the Agency.
The Agency requested and obtained both Voluntary Early Retirement Authority (VERA) and Voluntary Separation Incentive Payments (VSIP) authority in order to better manage its caseload and workforce needs. For years, the deficits caused by flat funding of the Agency have been primarily addressed by voluntary personnel attrition. As a result, the NLRB has an imbalance in staffing in both headquarters and the NLRB’s regional offices. To ensure that the Agency is able to carry out its critical mission, the NLRB is utilizing the VERA and VSIP to realign Agency staffing with office caseloads. In addition to addressing the Agency’s current staffing imbalance, utilization of VERA and VSIP will enable the Agency to reallocate its limited resources and to, among other things, provide employees with the tools they need, including training and improvements in technology.
VERA changes the normal retirement eligibility to allow employees to voluntarily retire earlier, with an immediate annuity, with 20 years of service at age 50, or at 25 years of service regardless of age. VSIP provides a financial incentive for employees to voluntarily separate by optional retirement, voluntary early retirement, or resignation. The NLRB is offering both VERA and VSIP opportunities only to employees in targeted job categories. Applying for these opportunities is entirely voluntary and applications from employees in eligible positions will be processed in the order they are received.

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NLRB Administrative Law Judges Validly Appointed

The National Labor Relations Board today rejected a challenge regarding the appointment of its administrative law judges ("ALJs"), concluding that all of the Board’s ALJs have been validly appointed under the Appointments Clause of the United States Constitution.

     On June 21, 2018, the Supreme Court issued its decision in Lucia v. SEC, 585 U.S. ___, 138 S. Ct. 2044 (2018), finding that administrative law judges of the Securities and Exchange Commission (“SEC”) are inferior officers of the United States and thus must be appointed in accordance with the Appointments Clause, i.e., by the President, the courts, or the Head of Department. Id. at 2051. Unlike the SEC’s ALJs, the NLRB’s ALJs are appointed by the full Board as the “Head of Department” and not by other Agency staff members.

     The challenge was raised by WestRock Services, Inc. (“WestRock”) in Case 10-CA-195617 on a motion to dismiss. Chairman John F. Ring was joined by Members Mark Gaston Pearce, Lauren McFerran, Marvin E. Kaplan and William J. Emanuel in the order denying WestRock’s motion.

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Monday, August 6, 2018

Jones v. Sorenson

As used in Business and Professions Code Sec. 7026.1, a nursery person is a licensed professional engaged in cultivating plants, whereas a gardener holds no license and generally tends existing landscaping. A property owner who has hired a gardener to perform work requiring a license can be held liable to the gardener's employee under a respondeat superior theory.

Jones v. Sorenson - filed Aug. 2, 2018, Third District
Cite as 2018 S.O.S. 3823

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Lacagnina v. Comprehend Systems, Inc.

An employee who recovers a judgment against an employer for lost compensation has not suffered a theft of labor for which he is entitled to recover treble damages and attorney fees under Penal Code Sec. 496(c).

Lacagnina v. Comprehend Systems, Inc. - filed Aug. 3, 2018, First District, Div. Four
Cite as 2018 S.O.S. 3817

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Friday, August 3, 2018

Honeycutt v. JPMorgan Chase Bank, N.A.

The Code of Civil Procedure and the Ethics Standards for Neutral Arbitrators in Contractual Arbitration (Ethics Standards) require arbitrators in contractual arbitrations to make various disclosures about themselves, their experience, and their activity as private judges or, as they are sometimes called, “dispute resolution neutrals.”  Failure to make required disclosures may be a ground for disqualifying the arbitrator and, if the arbitrator was actually aware of the ground for disqualification, for vacating an award.

In this case, the arbitrator did not comply with several applicable disclosure requirements, which gave rise to multiple grounds for disqualification.  Because the arbitrator was actually aware of at least one of the grounds for disqualification, the resulting arbitration award was subject to vacatur.  Therefore, we reverse the trial court’s order denying the petition to vacate the award and granting the petition to confirm it.

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