Thursday, January 31, 2019

Vasquez v. San Miguel Produce, Inc.

Respondents Antonia Vasquez and Cecilia Zacarias were hired by appellant Employer’s Depot, Inc. (EDI), a staffing agency.  EDI was respondents’ employer when they worked on assignment.  Respondents and EDI agreed in writing to arbitrate “all disputes that may arise within the employment context.”

EDI assigned respondents to pack produce for appellant San Miguel Produce, Inc.  Respondents later sued San Miguel for labor law violations.  San Miguel cross-complained, blaming EDI for causing respondents’ alleged damages.  Appellants jointly moved to compel arbitration.  The trial court denied their motion.  (Code Civ. Proc., §1281.2.)

On de novo review, we conclude that arbitration is mandated.  Appellants are co-employers with an identity of interests and mutual responsibility for complying with state law governing employers in the produce packing industry.  It is inconsequential that respondents chose not to name EDI as a defendant.  They agreed to arbitrate “all disputes” arising from their employment.  At all relevant times EDI was their employer.  We reverse and remand with directions to stay court proceedings and order the parties to arbitrate their dispute.

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Frost v. BNSF Railway Company

To establish a claim of unlawful discrimination under the Federal Railroad Safety Act, a plaintiff must prove by a preponderance of the evidence that his protected conduct was a contributing factor in an adverse employment action. There is no separate requirement that the plaintiff prove that his employer acted with discriminatory intent.

Frost v. BNSF Railway Company - filed Jan. 30, 2019 
Cite as 2019 S.O.S. 17-35513 

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Wednesday, January 30, 2019

Gilbert v. Cal. Check Cashing Stores

The panel affirmed in part and vacated in part the district court’s summary judgment in favor of defendants in an action under the Fair Credit Reporting Act, and remanded for further proceedings.

FCRA requires employers who obtain a consumer report on a job applicant to provide the applicant with a “clear and conspicuous disclosure” that they may obtain such a report (the “clear and conspicuous” requirement) “in a document that consists solely of the disclosure” (the “standalone document” requirement) before procuring the report.

The panel held that a prospective employer violates FCRA’s “standalone document” requirement by including extraneous information relating to various state disclosure requirements in that disclosure.The panel concluded that defendant’s form violated this requirement, as well as the “standalone document” requirement of California’s Investigative Consumer Reporting Agencies Act. The panel further held that defendant’s disclosure did not satisfy FCRA’s and ICRAA’s “clear and conspicuous” requirements because, although the disclosure was conspicuous, it was not clear.

The panel addressed additional issues in a concurrently filed memorandum disposition.

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Monday, January 28, 2019

Curtis v. Irwin Industries, Inc.

California overtime law does not apply to an employee working under a qualifying collective bargaining agreement.

Curtis v. Irwin Industries, Inc. - filed Jan. 25, 2019
Cite as 2019 S.O.S. 16-56515 
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Friday, January 25, 2019

NLRB Returns to Long-Standing Independent-Contractor Standard

Washington, DC—Today, the National Labor Relations Board returned to its long-standing independent-contractor standard, reaffirming the Board’s adherence to the traditional common-law test.  In doing so, the Board clarified the role entrepreneurial opportunity plays in its determination of independent-contractor status, as the D.C. Circuit has recognized.

The case, SuperShuttle DFW, Inc., involved shuttle-van-driver franchisees of SuperShuttle at Dallas-Fort Worth Airport.   Applying its clarified standard, the Board concluded that the franchisees are not statutory employees under the National Labor Relations Act (the Act), but rather independent contractors excluded from the Act’s coverage. 

The Board found that the franchisees’ leasing or ownership of their work vans, their method of compensation, and their nearly unfettered control over their daily work schedules and working conditions provided the franchisees with significant entrepreneurial opportunity for economic gain.  These factors, along with the absence of supervision and the parties’ understanding that the franchisees are independent contractors, resulted in the Board’s finding that the franchisees are not employees under the Act.  The decision affirms the Acting Regional Director’s finding that the franchisees are independent contractors.

Today’s decision overrules FedEx Home Delivery, a 2014 NLRB decision that modified the applicable test for determining independent-contractor status by severely limiting the significance of a worker’s entrepreneurial opportunity for economic gain.

Chairman John F. Ring was joined by Members Marvin E. Kaplan and William J. Emanuel in the majority opinion.  Member Lauren McFerran dissented.

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Waste Collection, Corp.

The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file an answer to the complaint.  The Board found that the Respondent violated Section 8(a)(1) by threatening its employees with job loss and plant closure, telling its employees that it would not bargain with the Union, and interrogating its employees about their and other employees’ union membership, activities, and sympathies.

Charge filed by Central General de Trabajadores.  Chairman Ring and Members McFerran and Emanuel participated.

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Tinley Park Hotel and Convention Center, LLC

In the absence of exceptions, the Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by promulgating and maintaining certain overbroad work rules.  The Board also adopted the judge’s conclusion that the Respondent violated Section 8(a)(1) by discharging an employee for violating one of the unlawfully overbroad work rules.  Chairman Ring and Member Emanuel applied Continental Group, Inc., 357 NLRB 409 (2011) and Double Eagle Hotel & Casino, 341 NLRB 112 (2004) in the absence of a request by any party to reconsider these decisions.  However, they noted they would be willing to revisit that precedent in a future appropriate case.

Charge filed by an individual.  Administrative Law Judge Charles J. Muhl issued his decision on June 16, 2015.  Chairman Ring and Members McFerran and Emanuel participated.

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Thursday, January 24, 2019

Mackey v. Bd. of Trustees of the Cal. State University

Five African-American women on the basketball team at California State University at San Marcos (CSUSM) sued head coach Sheri Jennum and the Board of Trustees of the California State University, claiming Jennum had engaged in race-based discrimination and retaliation.  They alleged she derogatorily referred to them as "the group," reduced their playing time, afforded them fewer opportunities, punished them more severely and generally singled them out for harsher treatment as compared to their non-African-American teammates.  The trial court granted both motions for summary judgment filed by the Board, concluding plaintiff Danielle Cooper's claims were untimely and that the remaining plaintiffs could not show a triable issue on the merits.
On plaintiffs' appeal from that ruling, we reverse the order granting summary judgment and direct the court to enter a new order granting summary adjudication on some, but not all, of plaintiffs' claims.  Plaintiffs cannot sue the Board under 42 United States Code sections 1981 and 1983 because CSUSM is not a "person" subject to suit under those statutes.  That disposes of Cooper's sole contention on appeal that her claim under section 1981 is timely. 
Turning to the remaining claims brought by the four "freshmen plaintiffs," summary adjudication is improper as to their racial discrimination claims under title VI of the Civil Rights Act of 1964 (hereafter title VI) (42 U.S.C. § 2000d et seq.) and the Unruh Civil Rights Act (Unruh Act) (Civ. Code, § 51 et seq.).  Viewing the evidence, as we must, in the light most favorable to the freshmen plaintiffs, the Board did not meet its moving burden to show the lack of a triable issue as to whether these plaintiffs suffered a materially adverse action under circumstances suggesting a racially discriminatory motive.

For similar reasons, summary adjudication is improper on title VI retaliation claims brought by three of the four freshmen plaintiffs, Lynette Mackey, Kianna Williams, and Sierra Smith.  Each of these women complained about Jennum's discriminatory treatment and indicated how they suffered adverse consequences as a result.  We reach a different conclusion as to plaintiff Crystal Hicks, who never made a complaint and denied facing any consequences as a result of complaints made by her peers.

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Zhang v. Jenevein

E. Patrick Jenevein III, president of Tang Energy Group, Ltd., secretly recorded conversations with a business associate, Sherman Xuming Zhang, president of AVIC International USA, Inc. (AVIC USA), and later introduced the recordings as evidence in contractual arbitration.  The arbitrators ultimately issued an award in favor of Tang Energy.

After the arbitration, Zhang and AVIC USA filed this action against Jenevein for invasion of privacy and eavesdropping on or recording confidential communications in violation of Penal Code sections 632 and 637.2.  Jenevein filed a special motion to strike under Code of Civil Procedure section 425.16 (section 425.16).  The trial court denied the motion, ruling that neither making the recordings nor using them as evidence in the arbitration was protected activity. 

The trial court was correct.  Because Jenevein’s actions in recording the conversations and using the recordings in the arbitration were not in connection with a judicial or official proceeding authorized by law, they were not protected activities under section 425.16.  Therefore, we affirm.

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Chinchilla Theatrical Scenic, LLC

The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file an answer to the complaint.  The Board found that the Respondent violated Section 8(a)(5) and (1) by, without the Union’s consent, failing to continue in effect the terms and conditions of employment provided in the collective-bargaining agreement by failing to pay unit employees’ wages under the terms of the agreement.

Charge filed by International Alliance of Theatrical and Stage Employees, Local 8.  Chairman Ring and Members McFerran and Emanuel participated.

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NP Sunset LLC d/b/a Sunset Station Hotel Casino

The Board granted the General Counsel’s Motion for 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.  The Board found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to recognize and bargain with the Union and by failing and refusing to furnish the Union with requested information that was relevant and necessary to the Union’s performance of its duties as the exclusive collective bargaining representative of the unit, with the exception of employee social security numbers.

Charge filed by International Union of Operating Engineers Local 501, AFL-CIO.  Chairman Ring and Members McFerran and Kaplan participated.

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Siri v. Cutter Home Winery, Inc.

The implied taxpayer privilege does not preclude an employee from speaking up when she discovers that her employer is filing incorrect returns, nor does it preclude a wrongful termination claim if the employee is discharged for doing so. The prosecution of such a claim does not require the forced production of the employer's returns or of the content of its returns. California Revenue and Taxation Code Sec. 7056.6 does not prohibit an employee from asserting to its employer that the employer is not paying a tax that is due, much less from bringing a wrongful discharge claim if the assertion led to the employee's discharge.

Siri v. Cutter Home Winery, Inc. - filed Jan. 23, 2019, First District, Div. Four 
Cite as 2019 S.O.S. 393 

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Monday, January 21, 2019

NLRB Chairman Provides Response to Members of Congress Regarding Joint-Employer Rulemaking

Washington, DC — Today, Chairman John F. Ring responded to a January 8, 2019 letter from Chairman Bobby Scott (D-VA), and Chairwoman Rosa DeLauro (D-CT) urging the Board to withdraw its Notice of Proposed Rulemaking (NPRM) on the joint-employer standard. 

A copy of Chairman Ring’s letter is available here.

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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In re Certified Tire and Service Centers Wage and Hour Cases

The request for judicial notice, dated December 21, 2018, is granted. The petition for review is granted. Further action is this matter is deferred pending consideration and disposition of a related issue in Oman v. Delta Air Lines, Inc., S248726 (see Cal. rules of Court, rule 8.524 (c)), or pending further order of the court. Submission of additional briefing, pursuant to California Rules of Court, rule 8.528, is deferred pending further order of the court. The requests for an order directing depublication of the opinion are denied. Votes: Cantil-Sakauye, C.J., Chin, Corrigan, Liu, Cuéllar, Kruger and Groban, JJ. Review granted/holding for lead case.

[Note: In Oman, the Ninth Circuit had certified the following questions to the California Supreme Court “(1) Do California Labor Code sections 204 and 226 apply to wage payments and wage statements provided by an out-of-state employer to an employee who, in the relevant pay period, works in California only episodically and for less than a day at a time? (2) Does California minimum wage law apply to all work performed in California for an out-of-state employer by an employee who works in California only episodically and for less than a day at a time? (See Cal. Labor Code, §§ 1182.12, 1194; Cal. Code Regs., § 11090(4).) (3) Does the Armenta/Gonzalez bar on averaging wages apply to a pay formula that generally awards credit for all hours on duty, but which, in certain situations resulting in higher pay, does not award credit for all hours on duty? (See Gonzales v. Downtown LA Motors, LP (2013) 215 Cal.App.4th 36, 155 Cal. Rptr. 3d 18; Armenta v. Osmose, Inc. (2005) 135 Cal.App.4th 314, 37 Cal. Rptr. 3d 460.)”]

Court of Appeal Decision

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Friday, January 18, 2019

Rall v. Tribune 365 LLC

Plaintiff Frederick Theodore Rall III, a political cartoonist and blogger, sued Los Angeles Times Communications LLC (The Times) after it published a “note to readers” and a later more detailed report questioning the accuracy of a blog post plaintiff wrote for The Times.  The Times told its readers that it had serious questions about the accuracy of the blog post; that the piece should not have been published; and that plaintiff’s future work would not appear in The Times.  Plaintiff sued The Times, related entities, and several individual defendants, alleging causes of action for defamation and for wrongful termination in violation of public policy, among other claims.

All defendants filed anti-SLAPP (strategic lawsuit against public participation) motions to strike plaintiff’s complaint (Code Civ. Proc., § 425.16).  The trial court granted the motions.  We affirm the trial court’s orders.

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Thursday, January 17, 2019

NLRB Provides Email Address for Alternate Method to Submit Public Comments on Proposed Joint-Employer Rulemaking Due to Partial Shutdown

Office of Public Affairs

January 17, 2019

Washington, DC — In light of the partial government shutdown and subsequent shutdown of, the National Labor Relations Board (NLRB) today announced the establishment of an email address for the electronic submission of public comments on the proposed joint-employer rulemaking.  The public can now submit comments electronically to  In addition to emailing comments to, comments can also be submitted 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.

Comments must be received on or before January 28, 2019.  Comments replying to the comments submitted during the initial comment period must be received by the NLRB on or before February 11, 2019.

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Robles v. Dominos Pizza LLC

The panel reversed the district court’s dismissal of an action under Title III of the Americans with Disabilities Act and California’s Unruh Civil Rights Act, alleging that Domino’s Pizza’s website and mobile application were not fully accessible to a blind or visually impaired person.

The panel held that the ADA applied to Domino’s website and app because the Act mandates that places of public accommodation, like Domino’s, provide auxiliary aids and services to make visual materials available to individuals who are blind. Even though customers primarily accessed the website and app away from Domino’s physical restaurants, the panel stated that the ADA applies to the services of a public accommodation, not services in a place of public accommodation. The panel stated that the website and app connected customers to the goods and services of Domino’s physical restaurants.

The panel held that imposing liability on Domino’s under the ADA would not violate the company’s Fourteenth Amendment right to due process. The panel held that the statute was not impermissibly vague, and Domino’s had received fair notice that its website and app must comply with the ADA. Further, the plaintiff did not seek to impose liability on Domino’s for failure to comply with the Web Content Accessibility Guidelines 2.0, private industry standards for website accessibility. Rather, an order requiring compliance with WCAG 2.0 was a possible equitable remedy. Finally, the lack of specific regulations, not yet promulgated by the Department of Justice, did not eliminate Domino’s statutory duty.

The panel held that the district court erred in invoking the prudential doctrine of primary jurisdiction, which allows courts to stay proceedings or to dismiss a complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency. The panel reasoned that the DOJ was aware of the issue, and its withdrawal of an Advanced Notice of Proposed Rulemaking meant that undue delay was inevitable. The delay was needless because the application of the ADA to the facts of this case was well within the district court’s competence. The panel remanded the case to the district court.

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Mendoza v. Fonseca McElroy Grinding Co.

The panel certified the following question to the California Supreme Court:

Is operating engineers’ offsite “mobilization work”—including the transportation to and from a public works site of roadwork grinding equipment—performed “in the execution of [a] contract for public work,” Cal. Lab. Code § 1772, such that it entitles workers to “not less than the general prevailing rate of per diem wages for work of a similar character in the locality in which the public work is performed” pursuant to section 1771 of the California Labor Code?

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Tuesday, January 15, 2019

New Prime Inc. v. Oliveira

Petitioner New Prime Inc. is an interstate trucking company, and respondent Dominic Oliveira is one of its drivers. Mr. Oliveira works under an operating agreement that calls him an independent contractor and contains a mandatory arbitration provision. When Mr. Oliveira filed a class action alleging that New Prime denies its drivers lawful wages, New Prime asked the court to invoke its statutory authority under the Federal Arbitration Act to compel arbitration. Mr. Oliveira countered that the court lacked authority because §1 of the Act excepts from coverage disputes involving “contracts of employment” of certain transportation workers. New Prime insisted that any question regarding §1’s applicability belonged to the arbitrator alone to resolve, or, assuming the court could address the question, that “contracts of employment” referred only to contracts that establish an employer-employee relationship and not to contracts with independent contractors. The District Court and First Circuit agreed with Mr. Oliveira.


1. A court should determine whether a §1 exclusion applies before ordering arbitration. A court’s authority to compel arbitration under the Act does not extend to all private contracts, no matter how emphatically they may express a preference for arbitration. Instead, antecedent statutory provisions limit the scope of a court’s §§3 and 4 powers to stay litigation and compel arbitration “accord[ing to] the terms” of the parties’ agreement. Section 2 provides that the Act applies only when the agreement is set forth as “a written provision in any maritime transaction or a contract evidencing a transaction involving commerce.” And §1 helps define §2’s terms, warning, as relevant here, that “nothing” in the Act “shall apply” to “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” For a court to invoke its statutory authority under §§3 and 4, it must first know if the parties’ agreement is excluded from the Act’s coverage by the terms of §§1 and 2. This sequencing is significant. See, e.g., Bernhardt v. Polygraphic Co. of America, 350 U. S. 198, 201–202. New Prime notes that the parties’ contract contains a “delegation clause,” giving the arbitrator authority to decide threshold questions of arbitrability, and that the “severability principle” requires that both sides take all their disputes to arbitration. But a delegation clause is merely a specialized type of arbitration agreement and is enforceable under §§3 and 4 only if it appears in a contract consistent with §2 that does not trigger §1’s exception. And, the Act’s severability principle applies only if the parties’ arbitration agreement appears in a contract that falls within the field §§1 and 2 describe. Pp. 3–6.

2. Because the Act’s term “contract of employment” refers to any agreement to perform work, Mr. Oliveira’s agreement with New Prime falls within §1’s exception. Pp. 6–15.

(a) “[I]t’s a ‘fundamental canon of statutory construction’ that words generally should be ‘interpreted as taking their ordinary . . . meaning . . . at the time Congress enacted the statute.’ ” Wisconsin Central Ltd. v. United States, 585 U. S. ___, ___ (quoting Perrin v. United States, 444 U. S. 37, 42). After all, if judges could freely invest old statutory terms with new meanings, this Court would risk amending legislation outside the “single, finely wrought and exhaustively considered, procedure” the Constitution commands. INS v. Chadha, 462 U. S. 919, 951. The Court would risk, too, upsetting reliance interests by subjecting people today to different rules than they enjoyed when the statute was passed. At the time of the Act’s adoption in 1925, the phrase “contract of employment” was not a term of art, and dictionaries tended to treat “employment” more or less as a synonym for “work.” Contemporaneous legal authorities provide no evidence that a “contract of employment” necessarily signaled a formal employer-employee relationship. Evidence that Congress used the term “contracts of employment” broadly can be found in its choice of the neighboring term “workers,” a term that easily embraces independent contractors. Pp. 6–10.

(b) New Prime argues that by 1925, the words “employee” and “independent contractor” had already assumed distinct meanings. But while the words “employee” and “employment” may share a common root and intertwined history, they also developed at different times and in at least some different ways. The evidence remains that, as dominantly understood in 1925, a “contract of employment” did not necessarily imply the existence of an employer-employee relationship. New Prime’s argument that early 20th-century courts sometimes used the phrase “contracts of employment” to describe what are recognized today as agreements between employers and employees does nothing to negate the possibility that the term also embraced agreements by independent contractors to perform work. And its effort to explain away the statute’s suggestive use of the term “worker” by noting that the neighboring terms “seamen” and “railroad employees” included only employees in 1925 rests on a precarious premise. The evidence suggests that even “seamen” and “railroad employees” could be independent contractors at the time the Arbitration Act passed. Left to appeal to the Act’s policy, New Prime suggests that this Court order arbitration to abide Congress’ effort to counteract judicial hostility to arbitration and establish a favorable federal policy toward arbitration agreements. Courts, however, are not free to pave over bumpy statutory texts in the name of more expeditiously advancing a policy goal. Rather, the Court should respect “the limits up to which Congress was prepared” to go when adopting the Arbitration Act. United States v. Sisson, 399 U. S. 267, 298. This Court also declines to address New Prime’s suggestion that it order arbitration anyway under its inherent authority to stay litigation in favor of an alternative dispute resolution mechanism of the parties’ choosing.

Pp. 10–15. 857 F. 3d 7, affirmed. 

GORSUCH, J., delivered the opinion of the Court, in which all other Members joined, except KAVANAUGH, J., who took no part in the consideration or decision of the case. GINSBURG, J., filed a concurring opinion.

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Monday, January 14, 2019

Duffey v. Tender Heart Home Care Agency

Plaintiff Nichelle Duffey (Plaintiff) sued defendant Tender Heart Home Care Agency, LLC (Tender Heart) for, among other claims, failure to pay overtime wages under the Domestic Worker Bill of Rights (Labor Code, §§ 1450 et seq.; DWBR), which requires that domestic work employees receive overtime wages for all hours worked more than nine hours per day or 45 hours per week.  The trial court granted Tender Heart’s motion for summary adjudication on the DWBR cause of action, finding the undisputed facts demonstrated Plaintiff was an independent contractor rather than an employee of Tender Heart for purposes of the DWBR.  We first conclude the trial court erred in exclusively applying the so-called “common law” test set forth in S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 (Borello), to determine the issue.  We next conclude that, under the appropriate tests, there is a dispute of fact as to whether Plaintiff was Tender Heart’s employee.  Accordingly, we reverse and remand.

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Ricasa v. Office of Admin. Hearings

Southwestern Community College District (District) and its governing board (Board) (together Southwestern) demoted Arlie Ricasa from an academic administrator position to a faculty position on the grounds of moral turpitude, immoral conduct, and unfitness to serve in her then-current role.  Ricasa filed two petitions for writs of administrative mandamus in the trial court seeking, among other things, to set aside the demotion and reinstate her as an academic administrator.

Ricasa appeals from the denial of her petitions, arguing the demotion occurred in violation of the Ralph M. Brown Act (the Brown Act) (Gov. Code, § 54950 et seq.) because Southwestern failed to provide her with 24 hours' notice of the hearing at which it heard charges against her, as required by Government Code section 54957.  Assuming we reject her first argument, she argues that the demotion was unconstitutional because no nexus exists between her alleged misconduct and her fitness to serve as academic administrator.  

Southwestern also appeals, arguing that the trial court made two legal errors when it:  (1) held that Southwestern was required to give 24-hour notice under the Brown Act prior to conducting a closed session at which it voted to initiate disciplinary proceedings, and (2) enjoined Southwestern from committing future Brown Act violations.

We conclude that Southwestern did not violate the Brown Act and that substantial evidence supported Ricasa's demotion.  However, we reverse that part of the judgment enjoining Southwestern from future Brown Act violations.

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NLRB Further Extends Time for Submitting Comments on Proposed Joint-Employer Rulemaking in Light of DC Circuit’s Recent Browning-Ferris Decision

In light of the unique circumstance presented by the December 28, 2018 issuance by the United States Court of Appeals for the District of Columbia Circuit of its decision in Browning-Ferris Industries of California v. NLRB, --- F.3d ---, 2018 WL 6816542, the National Labor Relations Board (“NLRB”) is extending the time for submitting comments regarding its Notice of Proposed Rulemaking (“NPRM”) on joint-employer status in order to permit issues raised by that decision to be addressed.  Comments must now be received on or before January 28, 2019.  Comments replying to the comments submitted during the initial comment period must be received by the NLRB on or before February 11, 2019.

Public comments should be submitted either electronically to, 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.

Due to the partial government shutdown, the Office of the Federal Register is unable to publish the notice of this extension.   Please refer to the order here.

Click here to read the request for comments in the Federal Register.

Click here to read the original announcement regarding the Notice of Proposed Rule-Making.

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Wednesday, January 9, 2019

NLRB Division of Judges Issues Updated Bench Book

Washington, D.C—The Judges Division of the National Labor Relations Board (NLRB) has issued an updated Bench Book, which replaces an earlier version issued in January 2018.  The new January 2019 edition contains citations to numerous additional Board and court decisions and other authorities.  It also contains several new sections, including sections addressing compliance/backpay proceedings and consolidated unfair labor practice (ULP) and representation cases. In addition, certain sections have been substantially reorganized, including those addressing privileged or protected material.  

Like the 2018 edition, the new 2019 edition was edited by NLRB Administrative Law Judge (ALJ) Jeffrey Wedekind and contains a Foreword by Chief ALJ Robert Giannasi describing the Bench Book’s history and purpose.  As discussed in the Foreword, the basic sources that govern Board ULP hearings are the National Labor Relations Act (NLRA), the Administrative Procedure Act (APA), the Board's Rules and Regulations and Statements of Procedure, and Board decisions. The Board also applies, so far as practicable, the Federal Rules of Evidence (FRE), and frequently seeks guidance from the Federal Rules of Civil Procedure (FRCP).  The Bench Book serves as an NLRB Trial Manual, and is designed to provide NLRB judges with a reference guide during hearings.  It is also a useful tool for trial practitioners before the Board because it sets forth Board precedent and other rulings and authorities on certain recurring procedural and evidentiary issues that may arise during a hearing.

The National Labor Relations Board is an independent federal agency vested with the power to safeguard employees’ rights to organize and to determine whether to have unions as their bargaining representative. The agency also acts to prevent and remedy unfair labor practices committed by private sector employers and unions. 

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Tuesday, January 8, 2019

Henry Schein, Inc. v. Archer & White Sales, Inc.

Respondent Archer & White Sales, Inc., sued petitioner Henry Schein, Inc., alleging violations of federal and state antitrust law and seeking both money damages and injunctive relief. The relevant contract between the parties provided for arbitration of any dispute arising under or related to the agreement, except for, among other things, actions seeking injunctive relief. Invoking the Federal Arbitration Act, Schein asked the District Court to refer the matter to arbitration, but Archer & White argued that the dispute was not subject to arbitration because its complaint sought injunctive relief, at least in part. Schein contended that because the rules governing the contract provide that arbitrators have the power to resolve arbitrability questions, an arbitrator—not the court—should decide whether the arbitration agreement applied. Archer & White countered that Schein’s argument for arbitration was wholly groundless, so the District Court could resolve the threshold arbitrability question. The District Court agreed with Archer & White and denied Schein’s motion to compel arbitration. The Fifth Circuit affirmed.

Held: The “wholly groundless” exception to arbitrability is inconsistent with the Federal Arbitration Act and this Court’s precedent. Under the Act, arbitration is a matter of contract, and courts must enforce arbitration contracts according to their terms. Rent-A-Center, West, Inc. v. Jackson, 561 U. S. 63, 67. The parties to such a contract may agree to have an arbitrator decide not only the merits of a particular dispute, but also “ ‘gateway’ questions of ‘arbitrability.’ ” Id., at 68– 69. Therefore, when the parties’ contract delegates the arbitrability question to an arbitrator, a court may not override the contract, even if the court thinks that the arbitrability claim is wholly groundless. That conclusion follows also from this Court’s precedent. See AT&T Technologies, Inc. v. Communications Workers, 475 U. S. 643, 649– 650.

Archer & White’s counterarguments are unpersuasive. First, its argument that §§3 and 4 of the Act should be interpreted to mean that a court must always resolve questions of arbitrability has already been addressed and rejected by this Court. See, e.g., First Options of Chicago, Inc. v. Kaplan, 514 U. S. 938, 944. Second, its argument that §10 of the Act—which provides for back-end judicial review of an arbitrator’s decision if an arbitrator has “exceeded” his or her “powers”—supports the conclusion that the court at the front end should also be able to say that the underlying issue is not arbitrable is inconsistent with the way Congress designed the Act. And it is not this Court’s proper role to redesign the Act. Third, its argument that it would be a waste of the parties’ time and money to send wholly groundless arbitrability questions to an arbitrator ignores the fact that the Act contains no “wholly groundless” exception. This Court may not engraft its own exceptions onto the statutory text. Nor is it likely that the exception would save time and money systemically even if it might do so in some individual cases. Fourth, its argument that the exception is necessary to deter frivolous motions to compel arbitration overstates the potential problem. Arbitrators are already capable of efficiently disposing of frivolous cases and deterring frivolous motions, and such motions do not appear to have caused a substantial problem in those Circuits that have not recognized a “wholly groundless” exception.

The Fifth Circuit may address the question whether the contract at issue in fact delegated the arbitrability question to an arbitrator, as well as other properly preserved arguments, on remand. Pp. 4–8. 878 F. 3d 488, vacated and remanded.

KAVANAUGH, J., delivered the opinion for a unanimous Court.

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Monday, January 7, 2019

International Brotherhood of Electrical Workers, Local Union 357, AFL-CIO (Desert Sun Enterprises Limited d/b/a Convention Technical Services)

The Board (Chairman Ring and Member Kaplan; Member McFerran, dissenting) adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(b)(4)(ii)(B) when it notified a neutral employer at a common situs that it intended to picket and it did not qualify that it would comply with the legal limitations on common situs picketing so as to not entangle neutrals.  After acknowledging that this longstanding unqualified-threat rule has not been clearly explained by the Board and that some courts have disapproved of it, the Board majority stood by the rule with a full explanation of its basis in Congress’s deep concern with protecting neutrals from entanglement in labor disputes and the inherent coercion presented by such an unqualified notice.  Dissenting, Member McFerran would have overruled the Board’s unqualified-threat rule and dismissed the present complaint.  She disagrees that an unqualified notice is inherently coercive and, instead, would examine all of the relevant circumstances to determine if a notice is coercive.

Charge filed by Desert Sun Enterprises Limited d/b/a Convention Technical Services.  Administrative Law Judge Gerald A. Wacknov issued his decision on July 28, 2014.  Chairman Ring and Members McFerran and Kaplan participated.

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Cobalt Coal Corp. Mining, Inc.

The Board granted the General Counsel’s Motion to Vacate and, upon de novo consideration, to reissue the Board’s May 24, 2013 Decision and Order granting the General Counsel’s Motion for Default Judgment in this proceeding (359 NLRB No. 123).  The Board issued the original decision at a time when the Board included two persons whose appointments to the Board were subsequently determined to be constitutionally infirm.  NLRB v. Noel Canning, 134 S. Ct. 2550 (2014).  After considering the Motion for Default Judgment de novo, the Board granted the General Counsel’s motion and found that the Respondent violated Section 8(a)(3) and (1).

Charges filed by United Mine Workers of America, AFL-CIO.  Chairman Ring and Members Kaplan and Emanuel participated.

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Leggett & Platt, Inc.

The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by withdrawing recognition from the Union without objective evidence that the Union had lost majority support of unit employees under Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001).  The Board further found that the Respondent violated Section 8(a)(5) and (1) by making several unilateral changes to employees’ terms and conditions of employment after it unlawfully withdrew recognition from the Union.  Finally, the Board affirmed the judge’s conclusion that the Respondent violated Section 8(a)(1) when a supervisor unlawfully provided aid to the decertification petition filed after the withdrawal of recognition.  

Charges filed by International Association of Machinists and Aerospace Workers (IAM), AFL-CIO.  Administrative Law Judge Andrew S. Gollin issued his decision on October 2, 2017.  Chairman Ring and Members McFerran and Kaplan participated.

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Johnston Fire Services, LLC

The Board adopted the Administrative Law Judge’s conclusion that the Respondent did not unlawfully discharge two employees for engaging in union activity.  The Board found that the Respondent made the decision to terminate both employees for attendance issues before learning of their protected activity.  After their discharges, the employees cast challenged ballots in a union election.  The tally of ballots showed 2 votes for the Union, 2 votes against, and 2 challenged ballots.  Because the discharges were lawful, the Board sustained the challenges and ordered that the votes not be counted.  Accordingly, the Board certified that a majority of the valid ballots had not been cast for the Petitioner.

Charges and Petition filed by Road Sprinkler Fitters, Local Union 669.  Administrative Law Judge Keltner W. Locke issued his decision on March 3, 2017.  Members McFerran, Kaplan, and Emanuel participated.

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Furry v. East Bay Publishing

Terry Furry sued his former employers East Bay Express and East Bay Publishing LLC (collectively East Bay) for, among other things, unpaid overtime wages, meal and rest break compensation, and statutory penalties for inaccurate wage statements.  Although the trial court found that East Bay failed to keep accurate records of Furry’s work hours, it concluded that Furry was not entitled to any relief because his testimony was too uncertain to support a just and reasonable inference that he performed work for which he was not paid.  The trial court also found that Furry was provided with uninterrupted meal and rest breaks as required by law.

For the reasons set forth below, we hold that it was error to completely deny Furry relief on his overtime claim, because imprecise evidence by an employee can provide a sufficient basis for damages when the employer fails to keep accurate records of the employee’s work hours.  (Hernandez v. Mendoza (1988) 199 Cal.App.3d 721, 727 (Hernandez).)  We agree, however, that Furry is not entitled to premium or regular pay for missed meal breaks because he failed to demonstrate that East Bay knew or reasonably should have known he was working through authorized meal breaks.  Accordingly, we reverse the judgment in part and remand for further proceedings consistent with this opinion.

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Nisei Farmers League v. CA Labor & Workforce Dev. Agency

Plaintiffs Nisei Farmers League and California Building Industry Association filed this action in the trial court challenging the constitutional validity of Labor Code section 226.2, a recently enacted law articulating wage requirements applicable where an employer uses a piece-rate method of compensating its employees.  The complaint was brought against the state labor agencies and agency officials responsible for enforcing the wage law (defendants).  In their complaint, plaintiffs alleged among other things that provisions of section 226.2 were so uncertain as to render the statute void for vagueness.  Other constitutional challenges to the validity of section 226.2 were premised on allegations that the statute would be applied retroactively.  Defendants demurred to the complaint, arguing that the wording of section 226.2 was not unconstitutionally vague and that the other constitutional challenges asserted in plaintiffs’ complaint were without merit because the statute was not retroactive.  The trial court agreed with defendants’ analysis, sustained the demurrer without leave to amend, and entered a judgment of dismissal.  In doing so, the trial court also declined to grant plaintiffs’ request for declaratory relief relating to an affirmative defense created by the statute.  Plaintiffs appeal from the judgment.

Based on our review of the pertinent issues, we conclude that plaintiffs failed to allege an adequate basis for finding the statute to be facially unconstitutional.  We also conclude that denial of the declaratory relief requested was appropriate.  Thus, the demurrer was properly sustained without leave to amend.  For these and other reasons more fully explained below, the judgment of the trial court is hereby affirmed.

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Thursday, January 3, 2019

Stratton v. Beck

This case began as a dispute over approximately $300 in unpaid wages.  It has since transmogrified into a dispute concerning attorney fees totaling nearly 200 times that amount and is here now for the second time.  In the previous appeal, appellant Thomas Beck challenged the trial court’s award of attorney fees for work that respondent Anthony Stratton’s attorney performed in that forum.  We affirmed the trial court’s ruling, holding that Stratton’s motion for $31,365 in statutory attorney fees was timely and supported by substantial evidence. At the conclusion of our opinion, we stated, “In the interest of justice, the parties are to bear their own costs of appeal.” (Stratton v. Beck (2017) 9 Cal.App.5th 483, 487, 498 (Stratton)). We reiterated that allocation in the ensuing remittitur:  “The parties are to bear their own costs of appeal.”

The parties interpreted this directive differently.  Beck maintained that “costs” included attorney fees on appeal, precluding Stratton from seeking them under Labor Code section 98.2, subdivision (c).  Stratton disagreed and filed a motion in the trial court seeking $114,840 in appellate attorney fees—a lodestar of $57,420, doubled in light of the complexity of the underlying issues.  The trial court awarded Stratton the lodestar and denied Beck’s motion to reconsider or clarify the ruling. It also awarded Stratton an additional $9,020 in fees he incurred opposing the motion to reconsider.

Beck appealed.  He contends that our order on costs deprived the trial court of jurisdiction to entertain Stratton’s motion for appellate attorney fees.  He further argues that the trial court erred in denying his motion to reconsider or clarify, in which he requested a more thorough explanation for the appellate attorney fee award.  We disagree and affirm.

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Wednesday, January 2, 2019

Rymel v. Save Mart Supermarkets

Plaintiffs Jose Robles, Christopher Rymel, and David Hagins sued defendant Save Mart Supermarkets, Inc., alleging various state law statutory employment claims.  After successfully moving to sever, Save Mart moved to compel arbitration as to each plaintiff.  The motions were heard together, and the trial court denied the motions by substantively identical orders.  Save Mart timely appealed in each case.  The appeals lie.  (See Code Civ. Proc., § 1294, subd. (a).)  We consolidated the appeals for oral argument and decision and shall affirm the orders denying the motions to compel arbitration.

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