Monday, December 31, 2018

Rockwell Mining LLC

The Board granted the General Counsel’s Motion for Partial Summary Judgment in this test-of-certification case on the ground that the Respondent failed to raise any issues that were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative.
Charge filed by United Mineworkers of America, AFL-CIO, Region 2, District 12.  Chairman Ring and Members Kaplan and Emanuel participated.

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Thursday, December 27, 2018

Moreno v. Visser Ranch, Inc.

Plaintiff was injured while a passenger in a pickup truck involved in a single-vehicle, rollover accident.  Plaintiff sued the driver (his father), the corporation that employed the driver, and an affiliated corporation that owned the vehicle.  Plaintiff alleged the driver was acting in the scope of his employment at the time of the accident and claimed the defendant corporations were vicariously liable under California’s doctrine of respondeat superior.  The defendant corporations obtained summary adjudication of the respondeat superior claim on the ground that the driver, who was returning home late in the evening after attending a family gathering, was not acting in the scope of his employment at the time of the accident. 

Scope of employment is a question of fact.  Here, the evidence shows defendants required the driver to be on call 24 hours a day, seven days a week to respond immediately to cell phone calls for repairs and maintenance needed at the ranches, farms and dairies operated by defendants.  Also, there is conflicting evidence about whether the driver was required to use the company-owned vehicle, which contained tools and spare parts, at all times so he could respond quickly to call for repairs at defendants’ various locations.  Based on this evidence and other details about the driver’s job, a reasonable trier of fact could find the driver was acting within the scope of his employment when the accident occurred.

We publish this decision because it is distinguishable from most other cases involving an employee’s required use of a company-owned vehicle.  Usually, those cases involve an employee who is required to use the vehicle only for the commute to and from work but is not required to use the vehicle while off work.  Here, a trier of fact reasonably could find the driver’s use of the truck for personal travel after work was dictated by the employer’s requirement.  In such circumstances, the risk of the truck’s involvement in an accident is a foreseeable risk that is attributable to the business enterprise under California’s risks-of-the-enterprise principle, which is the primary justification for its respondeat superior doctrine. 

Consequently, responsibility for that risk is best allocated to the enterprise, which is able to spread the risk (and actually did so) by obtaining insurance.

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Carrington v. Starbucks Corporation

Evidence that a worker accurately recorded her work time, that she was required to obtain approval from her supervisor prior to beginning her meal break and that she would begin her meal break when instructed was sufficient to support a finding that she did not receive meal breaks as required by law where the worker's records indicate she worked more five hours without taking a meal break and she did not receive a premium payment. Provision of a late meal period does not satisfy California's meal period requirements. An employee who brings a representative action under the Private Attorney General Act may seek penalties not only for the Labor Code violation that affected her, but also for different violations that affected other employees.

Carrington v. Starbucks Corporation - filed Nov. 27, 2018, publication ordered Dec. 19, 2018, Fourth District, Div. One 
Cite as 2018 S.O.S. 6102 

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Wednesday, December 19, 2018

McCleery v. Allstate Ins. Co.

In this putative class action, property inspectors allege they were engaged by three “service” companies to perform inspections for two major insurers.  The inspectors allege they were in fact employees of the insurers and service companies jointly, and were entitled to but deprived of minimum wages, overtime, meal and rest breaks, reimbursement of expenses, and accurate wage statements.

The inspectors moved for class certification, supported by their expert’s declaration that liability could be determined and damages calculated classwide by way of statistical analyses of results obtained from an anonymous, double-blind survey of a sampling of class members.

The trial court summarily rejected the expert’s plan and denied certification on the ground that the inspectors had failed to show that their status as employees (as opposed to independent contractors) could be established on predominately common proof.

We reversed the order and remanded the matter with a direction, as pertinent here, to evaluate plaintiffs’ proposed sampling plan.  (McCleery v. Allstate Ins. Co. (Feb. 5, 2016, B256374) [nonpub. opn.].)  On remand, plaintiffs offered a trial plan describing their proposal to establish liability and damages by way of an anonymous survey of all class members.  The trial court found common issues existed as to the class members’ employment status.  It further found that plaintiffs’ survey method, although flawed in some respects, was carefully crafted for accuracy.  However, the court found plaintiffs’ trial plan to be unworkable because it failed to address individualized issues and deprived defendants of the ability to assert defenses.  The court therefore again denied certification.

Plaintiffs appeal, contending the trial court applied improper criteria and made incorrect legal assumptions.

We conclude that under the analytic framework promulgated by Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004 (Brinker) and Duran v. U.S. Bank National Assn. (2014) 59 Cal.4th 1 (Duran), the trial court acted within its discretion in denying certification.

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Tuesday, December 18, 2018

Biel v. St. James School

The First Amendment's ministerial exception to generally applicable employment laws did not bar a teacher's claim against the Catholic elementary school that terminated her employment; factors to consider in whether an employee qualifies as a minister include whether the employer held the person out as a minister, whether her title reflected ministerial substance and training, whether she held herself out as a minister, and whether her job duties included important religious functions.

Biel v. St. James School - filed Nov. 17, 2018 
Cite as 2018 S.O.S. 17-55180 

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Friday, December 14, 2018

Local Joint Exec. Bd. v. Mirage Casino-Hotel

The panel reversed the district court’s summary judgment confirming, pursuant to the Labor Management Relations Act, an arbitration award entered in favor of Mirage Casino-Hotel, Inc., on a union’s grievance under the parties’ collective bargaining agreement.

Mirage subcontracted with another company to operate a venue, and the memorandum of agreement provided that the other company would “directly employ” the union’s food and beverage workers and would be responsible for paying their wages and employee benefits. Mirage, however, would control the terms and conditions of employment. The other company soon declared bankruptcy and failed to pay certain benefits before closing. Mirage declined to step in, and the union filed a grievance. The arbitrator ruled that the union’s grievance, filed pursuant to the CBA, was not arbitrable. 

The panel explained that the parties’ substantive dispute concerned whether Mirage was obliged under Article 29 of the CBA and the MOA to ensure that the workers received payment for accrued benefits. The dispute was arbitrable if it fell within the arbitration agreement expressed in Article 21 of the CBA. Its arbitrability was to be determined by the arbitrator if the parties “clearly and unmistakably” agreed to submit that question to him. The union’s position would be meritorious if its theory was supported by the CBA and the other evidence.

The panel concluded that the arbitrator conflated these inquiries in concluding that the dispute was not arbitrable because Mirage was not the workers’ employer. The panel held that, under the terms of the CBA, which required Mirage to arbitrate grievances, the dispute was substantively arbitrable. Further, the union’s assent to the arbitrator deciding arbitrability could not be inferred from its post-hearing briefing or its failure to call a halt to the arbitration proceedings and seek judicial review of arbitrability. The panel reversed the district court’s judgment and remanded with instructions to vacate the arbitration award.

Concurring, Judge Owens wrote that, although the dissent reached a more equitable result, the majority’s opinion was more consistent with controlling law. 

Dissenting, Judge Friedland wrote that the “clear and unmistakable” test for determining whether a party resisting arbitration has nevertheless consented to having the arbitrator decide substantive arbitrability does not also apply when determining whether a party that initiates arbitration has so consented. Because the union submitted the dispute to arbitration in the first place, Judge Friedland would instead apply traditional standards of waiver to the union’s actions. She would hold that, under those standards, the union waived its objection to the arbitrator’s deciding the substantive arbitrability question.

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Board Rescinds Invitation to File Briefs in Loshaw Thermal Technology

WASHINGTON, D.C. — Today, the Board issued an order granting the Charging Party Union’s request to withdraw the underlying charge in Loshaw Thermal Technology, LLC, 05-CA-158650 and rescinded its Notice and Invitation to File Briefs (NIFB) in the matter.  The Board had invited briefs in this case to determine whether Section 9(a) bargaining relationships in the construction industry may be established by contract language alone.

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Wednesday, December 12, 2018

Grill Concepts Services, Inc. d/b/a The Daily Grill

Los Angeles, CA, November 20, 2018.  The Board granted the Employer’s Request for Review of the Regional Director’s Decision and Certification of Representative, as it raised substantial issues warranting review—specifically, whether union representatives’ offers to help employees with their mail ballots, including offers to help fill them out, constituted objectionable conduct.  Petitioner—Unite Here Local 11.  Chairman Ring and Members Kaplan and Emanuel participated.

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Orchids Paper Products Company

The Board unanimously affirmed the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) by: (1) unilaterally implementing a policy requiring employees to wear flame-resistant clothing at all times; (2) suspending and disciplining an employee for failing to comply with the unilaterally implemented policy; (3) failing to adhere to the parties’ collective-bargaining agreement by not receiving the Union’s consent before converting productions lines six and seven to op-tech lines; (4) changing the employees’ health insurance; and (5) failing to apply certain terms of the parties’ collective-bargaining agreement to the “permanent temporary” employees.  A panel majority (Members Kaplan and Emanuel) reversed the judge’s conclusion that the Respondent unlawfully prevented union officials from conducting union business during work time in contravention of the parties’ collective-bargaining agreement.  A different panel majority (Members McFerran and Kaplan) affirmed the judge’s conclusions that the Respondent violated Section 8(a)(3) by discharging five “permanent temporary” employees.  The Board unanimously adopted the judge’s decision that the Respondent violated Section 8(a)(1) by: (1) threatening an employee with discipline for not complying with the unilaterally implemented flame-resistant clothing policy; (2) instructing an employee not to contact the Occupational Safety and Health Administration unless management had been informed first; (3) prohibiting employees from discussing the Union during work time while permitting discussion of other non-work topics; (4) prohibiting an employee from conducting union business in a disrespectful manner; (5) informing an employee that the “permanent temporary” employees had been discharged because of the Union’s actions on their behalf; and (6) preventing union officials from conducting union business in contravention of the parties’ collective-bargaining agreement.  A panel majority (Members McFerran and Kaplan) affirmed the judge’s conclusions that the Respondent violated Section 8(a)(1) by: (1) accusing employees of harassment; (2) creating the impression of surveillance; and (3) prohibiting employees from asking questions during meetings.  Finally, the Board unanimously reversed the judge’s findings that the Respondent did not unlawfully: (1) threaten an employee with unspecified reprisals; (2) prevent a union official from conducting union business in contravention of the parties’ collective-bargaining agreement on January 25; (3) create the impression that an employee’s union activities would be under greater scrutiny; and (4) promulgate a rule prohibiting employees from talking to employees in other departments.

Charge filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO.  Administrative Law Judge Andrew S. Gollin issued his decision on September 15, 2017.  Members McFerran, Kaplan, and Emanuel participated.

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Tuesday, December 11, 2018

Private National Mortgage Acceptance Company, LLC, “Pennymac”

Sacramento, CA, November 16, 2018.  The Board found that, in light of the Supreme Court’s decision in Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018), which overruled the Board’s decision in Murphy Oil USA, Inc., 361 NLRB 774 (2014), enf. denied in relevant part, 808 F.3d 1013 (5th Cir. 2015), the complaint allegation that the Respondent’s maintenance of its Mutual Arbitration Policy violated Section 8(a)(1) must be dismissed.  As to the separate issue whether the Respondent’s Mutual Arbitration Policy independently violates Section 8(a)(1) because it interferes with employees’ ability to access the Board, the Board observed that, at the time of the Administrative Law Judge’s decision and the parties’ exceptions, the issue whether maintenance of a facially neutral work rule or policy violated Section 8(a)(1) would be resolved based on the “reasonably construe” prong of the analytical framework set forth in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004).  The Board noted that it subsequently issued its decision in The Boeing Company, 365 NLRB No. 154, in which it overruled the Lutheran Heritage “reasonably construe” test and announced a new standard that applies retroactively to all pending cases.  Accordingly, the Board issued a Notice to Show Cause why the allegation that the Mutual Arbitration Policy unlawfully restricts employee access to the Board should not be remanded to the judge for further proceedings in light of Boeing.  Charge filed by an individual.  Administrative Law Judge Raymond P. Green issued his decision on November 29, 2016.  Chairman Ring and Members McFerran and Kaplan participated.

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ABM Onsite Services-West, Inc.

Portland, OR, November 14, 2018.  In this supplemental decision, the Board (Chairman Ring, Members Kaplan and Emanuel; Member McFerran, dissenting) deferred to the advisory opinion of the National Mediation Board (NMB) that the Employer and its employees at the Portland International Airport are subject to the Railway Labor Act (RLA).  In 2015, the Board asserted jurisdiction, certified the Union, and found that the Employer unlawfully refused to recognize and bargain with the Union in a test-of-certification case.  The D.C. Circuit Court subsequently remanded the case, finding that the NMB cases on which the Board relied in asserting jurisdiction represented an unexplained departure from longstanding NMB precedent.  The Board referred the case to the NMB and the NMB issued an advisory opinion, returning to its traditional six-factor carrier control test and stating its view that the Employer’s operations at the Portland International Airport are subject to the RLA.  Agreeing with the NMB’s determination, the Board dismissed the complaint and the petition and vacated the Union’s certification.  Dissenting, Member McFerran found that the NMB’s opinion was deficient under the Administrative Procedure Act.  Member McFerran would refer the case back to the NMB for it to provide a reasoned explanation for its decision to return to the traditional six-factor carrier control test. 

Charge and Petition filed by International Association of Machinists & Aerospace Workers, District Lodge W24, AFL-CIO.  Chairman Ring and Members McFerran, Kaplan, and Emanuel participated.

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Donohue v. AMN Services, LLC

In this wage and hour class and representative action, the trial court granted a motion for summary judgment brought by defendant AMN Services, LLC (AMN), and denied motions for summary adjudication of one cause of action and one affirmative defense brought by plaintiff Kennedy Donohue, individually and on behalf of five certified plaintiff classes she represents (together Plaintiffs).  In her appeal from the judgment, Donohue challenges the grant of AMN's motion for summary judgment and the denial of her motion for summary adjudication of one of the causes of action.  On appeal, Donohue also challenges what she characterizes as the trial court's "fail[ure] to hear a proper motion for reconsideration" of the summary judgment and summary adjudication rulings.

As we explain, we lack jurisdiction to review the postjudgment order that resulted in the court's decision not to hear Donohue's motion for reconsideration, and in our de novo review of the summary judgment and summary adjudication rulings, we conclude that Donohue did not meet her burden of establishing reversible error.  Accordingly, we affirm the judgment.

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Monday, December 10, 2018

Fred B. Jacob Named NLRB Solicitor

WASHINGTON, D.C. — The National Labor Relations Board (NLRB) today announced the appointment of Fred B. Jacob as the new Solicitor. Mr. Jacob brings to the Board over two decades of experience practicing labor law and advising federal agencies on ethics, administrative law and government operations. He starts at the NLRB today.

Most recently, Mr. Jacob served as Solicitor of the Federal Labor Relations Authority (FLRA). As the FLRA’s in-house counsel, he advised the Authority on the Ethics in Government Act, the Sunshine Act, the Privacy Act, the Freedom of Information Act and general government operations. He also represented the FLRA before all federal courts, including the Courts of Appeals and the U.S. Supreme Court. Before joining the FLRA, Mr. Jacob spent seventeen years at the NLRB, working in offices throughout the agency. During that time, Mr. Jacob rose from briefing attorney to Deputy Assistant General Counsel in the Appellate and Supreme Court Litigation Branch, where he litigated, supervised, or managed hundreds of NLRB cases in the Courts of Appeals. Mr. Jacob also performed short-term assignments to the Manhattan Regional Office and the staff of then-Board Member Alex Acosta. In addition, while he was a staff attorney, he served as grievance chair of the NLRBPA at Headquarters.

Mr. Jacob began his career as a clerk on the United States Court of Appeals for the Fourth Circuit and then worked as a labor and employment associate for a law firm in Washington, D.C. Mr. Jacob has taught labor and employment law courses at Georgetown University Law Center and the College of William and Mary School of Law. He received his B.A. from Brandeis University and his J.D. from William and Mary. Mr. Jacob replaces William B. Cowen, who became Regional Director for Region 21 in 2016.

The Solicitor is the chief legal adviser and consultant to the entire Board on all questions of law regarding the Board’s general operations and on major questions of law and policy concerning the adjudication of NLRB cases in the Courts of Appeals and the U.S. Supreme Court. The Solicitor also serves as the Board’s legal representative and liaison to the General Counsel and other offices of the Board.

Established in 1935, the National Labor Relations Board is an independent federal agency that protects employers and employees from unfair labor practices and protects the right of private sector employees to join together, with or without a union, to improve wages, benefits and working conditions. The NLRB conducts hundreds of workplace elections and investigates thousands of unfair labor practice charges each year.

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Fred B. Jacob Named NLRB Solicitor

The National Labor Relations Board (NLRB) today announced the appointment of Fred B. Jacob as the new Solicitor.  Mr. Jacob brings to the Board over two decades of experience practicing labor law and advising federal agencies on ethics, administrative law and government operations.  He starts at the NLRB today.

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Gerard v. Orange Coast Memorial Medical Center

A wage order of the Industrial Welfare Commission permitting health care employees to waive their second meal period break if they work shifts longer than 12 hours does not violate the Labor Code.

Gerard v. Orange Coast Memorial Medical Center - filed Dec. 10, 2018 
Cite as 2018 S.O.S. 5824 

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NLRB Further Extends Time for Submitting Comments on Proposed Joint-Employer Rulemaking

WASHINGTON, D.C. — The National Labor Relations Board is extending the time for submitting comments regarding its proposed rulemaking to address its joint-employer standard for an additional 30 days. The submission window is currently open and interested parties may now file comments on or before Monday, January 14, 2019. Comments replying to the comments submitted during the initial comment period must be received by the Board on or before January 22, 2019. 

Public comments are invited on all aspects of the proposed rule and should be submitted either electronically to www.regulations.gov, or by mail or hand-delivery to Roxanne Rothschild, Acting Executive Secretary, National Labor Relations Board, 1015 Half Street S.E., Washington, D.C. 20570-0001.

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NLRB Issues Strategic Plan for FY 2019 to FY 2022

WASHINGTON, DC — The National Labor Relations Board is issuing its Strategic Plan for fiscal years 2019 through 2022, which is required under the Government Performance and Results Act of 2010. The Strategic Plan contains four mission-related goals to support the vision of NLRB Chairman John Ring and General Counsel Peter Robb.

These four mission-related goals include: (1) achieving a collective 20% increase (5% over each of four years) in timeliness in case processing of unfair labor practice charges, (2) achieving resolution of a greater number of representation cases within 100 days of the filing of an election petition, (3) achieving organizational excellence and productivity, and (4) managing agency resources efficiently and in a manner that instills public trust.

To achieve these stated goals, the Strategic Plan calls for an annual, Agency-wide 5% reduction in case processing time for unfair labor practice charges. This reduction includes not only case handling in the regional offices, but also the time between issuance of an Administrative Law Judge’s decision and a Board Order, and issuance of a Board Order and closure of a case. Over the years, the amount of time it takes for cases to be processed and for resolutions to be reached has increased and backlogs of cases have developed. This initiative has been developed to reverse these trends.

In support of the Strategic Plan, the General Counsel has issued Memorandum GC 19-02, Reducing Case Processing Time, discussing how these goals affect the NLRB’s Divisions of Advice, Legal Counsel, Enforcement Litigation, Operations-Management and the Regional offices.

Established in 1935, the National Labor Relations Board is an independent federal agency that protects employers and employees from unfair labor practices and protects the right of private sector employees to join together, with or without a union, to improve wages, benefits and working conditions. The NLRB conducts hundreds of workplace elections and investigates thousands of unfair labor practice charges each year. The Office of the General Counsel is independent from the Board and is responsible for the investigation and prosecution of unfair labor practice cases, for the conducting of secret ballot elections to determine whether employees desire union representation, for the overall supervision of field offices around the country, and for the general oversight of the Agency’s administrative, financial, personnel and human capital operations.

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GCIU-Employer Retirement Fund v. Quad/Graphics, Inc.

An employer that withdrew from a multiemployer pension plan after its employees voted to decertify a union as their bargaining representative was entitled to a credit for a prior partial withdrawal under 29 U.S.C. Sec. 1386(b) against its complete withdrawal before the calculation of the 20-year limitation on annual payments provided for in 29 U.S.C. Sec. 1399(c)(1)(B).

GCIU-Employer Retirement Fund v. Quad/Graphics, Inc. - filed Dec. 7, 2018 
Cite as 2018 S.O.S. 17-55667 

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Thursday, December 6, 2018

Public Employment Relations Board v. Bellflower Unified School District

When it is undisputed that the Public Employment Relations Board followed its procedures prior to issuing a decision, substantial evidence necessarily supports a trial court's finding that the decision was issued pursuant to the board's established procedures. The PERB's general counsel's post-decision actions cannot be raised as a defense to an enforcement action.

Public Employment Relations Board v. Bellflower Unified School District - filed Dec. 4, 2018, Second District, Div. Four
Cite as 2018 S.O.S. 5789

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Wednesday, December 5, 2018

Acosta v. Brain

An attorney's participation in a Department of Labor investigation of an Employee Retirement Income Security Act trust fund trustee constituted a protected activity for purposes of 29 U.S.C. Sec. 1140. The fact that an individual defendant was not the ultimate decision maker for a retaliatory action does not immunize him under a cat's-paw theory of liability. Pursuant to ERISA Sec. 404 a court must distinguish between actions a fiduciary took in connection with its fiduciary responsibilities to the plan and those that actions taken as an individual or entity acting in its corporate capacity. ERISA Sec. 502(a)(5) does not provide a basis for a permanent injunction where no aspect of the injunction redressed or enforced a violation of ERISA Sec. 510.

Acosta v. Brain - filed Dec. 4, 2018 
Cite as 2018 S.O.S. 16-56529 

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ASARCO, LLC v. United Steel, Paper and Forest

An arbitrator did not exceed his authority in reforming a collective bargaining agreement upon finding that the parties were mutually mistaken as to its terms when they agreed to it, even though the agreement contained a "no-add" provision.

ASARCO, LLC v. United Steel, Paper and Forest - filed Dec. 4, 2018 
Cite as 2018 S.O.S. 16-16363 

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