Defendants waived defense that cause of action for negligent hiring and supervision was barred by the doctrine of workers' compensation where they never asked the court to rule on the issue. Hate is not an element of Civil Code 51.7, which includes the right to be free from violence or threats of violence because of one’s sex.
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December 21, 2012
Office of Public Affairs
Labor Relations Board this week made public a number of significant
decisions, most reached in the final days of the term of Member Brian
Hayes, which ended on December 16. The Board continues with three
members, Chairman Mark Gaston Pearce and Members Richard F. Griffin, Jr.
and Sharon Block.
The decisions touch on a variety of issues including social media
postings, charter school jurisdiction, backpay awards, the chargeability
of certain union lobbying expenses, and an employer’s responsibility to
continue dues collection after the expiration of a contract.
Most of the cases were decided the week of December 10, but were
issued this week following editing and formatting, which is typical for
the final decisions in a Member’s term. Brief descriptions and links to
the decisions follow. The list is not exhaustive; for all recent Board
decisions please see this page.
Hispanics United of Buffalo – The
Board found that the employer unlawfully fired five employees because
of their Facebook posts and comments about a coworker who intended to
complain to management about their work performance. In its analysis,
the Board majority applied settled Board law to the new world of social
media, finding that the Facebook conversation was concerted activity and
was protected by the National Labor Relations Act. Member Hayes
Alan Ritchey, Inc. – In a unanimous decision that resolved the last of the two-member cases returned following the 2010 Supreme Court decision in New Process Steel,
the Board found that where there is no collectively-bargained
grievance-arbitration system in place, employers generally must give the
union notice and an opportunity to bargain before imposing discipline
such as a discharge or suspension on employees. Member Hayes was
Latino Express –
In a decision that will affect most cases in which backpay is awarded,
the Board decided to require respondents to compensate employees for any
extra taxes they have to pay as a result of receiving the backpay in a
lump sum. The Board will also require an employer ordered to pay back
wages to file with the Social Security Administration a report
allocating the back wages to the years in which they were or would have
been earned. The Board requested briefs in this case in July 2012.
Member Hayes did not participate in the case.
Chicago Mathematics & Science Academy
– Rejecting the position of a teachers’ union, the Board found that it
had jurisdiction over an Illinois non-profit corporation that operates a
public charter school in Chicago. The non-profit was not the sort of
government entity exempt from the National Labor Relations Act, the
Board majority concluded, and there was no reason for the Board to
decline jurisdiction. Member Hayes dissented in part.
United Nurses & Allied Professionals (Kent Hospital) –
The Board, with Member Hayes dissenting, addressed several issues
involving the rights of nonmember dues objectors under the Supreme
Court’s Beck decision. On the main issue, the majority held
that, like all other union expenses, lobbying expenses are chargeable to
objectors, to the extent that they are germane to collective
bargaining, contract administration, or grievance adjustment. The Board
invited further briefing from interested parties on the how it should
define and apply the germaneness standard in the context of lobbying
WKYC-TV, Gannet Co. – Applying
the general rule against unilateral employer changes in terms and
conditions of employment, the Board found that an employer’s obligation
to collect union dues under a check-off agreement will continue after
the contract expires and before a bargaining impasse occurs or a new
contract is reached. Member Hayes dissented.