Today's Appellate Court decision report.

Employment Law Lui v. DeJoy Conditions surrounding Postmaster's demotion, plus her replacement with a white man, gave rise to an inference of discrimination. READ MORE Administrative Agencies Herron v. San Diego Unified Port District Petitioner could not establish a claim for traditional mandamus where the complained of act was a discretionary grant of a lease from the port district. READ MORE Health Care Siskiyou Hospital v. County of Siskiyou Hospital's writ request for County to stop sending mental health hold patients to its facilities was properly denied when its complaint failed to identify any legal mandatory duty violated by County. READ MORE Civil Procedure Waetzig v. Halliburton Energy Services, Inc. Because a Federal Rule of Civil Procedure voluntary dismissal with prejudice is a final judgment, courts may reopen such a case under Federal Rule of Civil Procedure 60(b). READ MORE Intellectual Property, Remedies Dewberry Group, Inc. v. Dewberry Engineers Inc. In trademark suits under the Lanham Act, a prevailing plaintiff may only be awarded disgorged profits from the party against whom relief is sought in the complaint and not from non-party affiliated entities. READ MORE

Stephanie Cahn Appointed as Acting Deputy General Counsel

February 13, 2025 Today, National Labor Relations Board Acting General Counsel William B. Cowen announced the selection of Stephanie Cahn to be Acting Deputy General Counsel, effective February 11, 2025. Ms. Cahn joined the Agency in 1997 and has spent her entire career in NLRB Region 21 (Downtown Los Angeles). She started as a Field Attorney before being promoted to Supervisory Field Attorney in 2013. In 2024 she was promoted again to Regional Attorney. She graduated with a bachelor’s degree from University of California, Irvine and a J.D. from the McGeorge School of law in Sacramento, California. “Stephanie is an outstanding and committed public servant,” said Acting General Counsel William Cowen. “I expect she will continue to use her considerable talents and expertise in supporting the Agency’s mission and operations.”

Statement from Departing NLRB General Counsel Jennifer Abruzzo

NLRB General Counsel Jennifer Abruzzo issued the following statement on her last day at the National Labor Relations Board: “It’s been the greatest honor and privilege to be General Counsel of the National Labor Relations Board and to work alongside such talented and dedicated federal employees. We have accomplished so much through our robust education, protection, and enforcement efforts, including empowering workers to collectively seek improved wages, benefits and working conditions from their employers. There’s no putting that genie back in the bottle. So, if the Agency does not fully effectuate its Congressional mandate in the future as we did during my tenure, I expect that workers with assistance from their advocates will take matters into their own hands in order to get well-deserved dignity and respect in the workplace, as well as a fair share of the significant value they add to their employer’s operations.” On July 22, 2021, Jennifer A. Abruzzo began serving a four-year term as General Counsel for the National Labor Relations Board. Starting in 1995, Ms. Abruzzo had spent her career at the NLRB in various positions including as Field Attorney, Supervisory Field Attorney, Deputy Regional Attorney, Deputy Assistant General Counsel, Deputy General Counsel, and Acting General Counsel. Immediately prior to her appointment as General Counsel, Ms. Abruzzo served as Special Counsel for Strategic Initiatives for the Communications Workers of America. Deputy General Counsel Jessica Rutter is now Acting General Counsel.

GC 25-05 Rescission of Certain General Counsel Memoranda

February 14, 2025 Today, NLRB Acting General Counsel William B. Cowen issued a memo to all field offices, rescinding certain memoranda issued by the former General Counsel, and announced his intention to assist the Regions by issuing further guidance on appropriate allocation of the Agency’s resources. In the memo, ACG Cowen stated, “Over the past few years, our dedicated and talented staff have worked diligently to process an ever-increasing workload. Notwithstanding these efforts, we have seen our backlog of cases grow to the point where it is no longer sustainable. The unfortunate truth is that if we attempt to accomplish everything, we risk accomplishing nothing.” Among the rescinded memos are: GC 21-06 and GC 21-07 addressing remedies to be sought, GC 21-08 on the rights of student-athletes under the NLRA; GC 23-02 on electronic monitoring; · GC 23-05 on severance agreements and· GC 23-08 and GC 25-01 on non-compete agreements. AGC Cowen rescinded and will provide further guidance on GC 24-01 concerning the Board’s Decision in Cemex Construction Materials Pacific, LLC. AGC Cowen announced that GC Memo 21-01 on Mail Ballot Elections, was rescinded as COVID-19 is no longer a Federal Public Health Emergency.

Dean Owens Appointed as Chief of the Contempt, Compliance, and Special Litigation Branch

Today, National Labor Relations Board Acting General Counsel William B. Cowen announced the appointment of Dean Owens as Chief of the Contempt, Compliance, and Special Litigation Branch (CCSLB). In this position, Mr. Owens will manage CCSLB, which represents the Board and the General Counsel in special litigation matters and conducts civil contempt litigation to obtain compliance with Board orders. Mr. Owens began his career in 2000 as an NLRB field attorney in the Memphis, Tennessee Regional Office and he also served the Houston, Texas Resident Office starting in 2006. Mr. Owens joined CCSLB as a trial attorney in 2014, and was promoted to supervisory attorney in 2020. A native of Lexington, North Carolina, Mr. Owens earned his bachelor’s degree from East Carolina University, M.A. from the University of Tennessee, and J.D. from the University of Tennessee School of Law. “The NLRB’s CCSLB is lucky to have Mr. Owens leading it. His extensive field and Branch experience, relationships within and without the Agency, and proven leadership will serve his colleagues and the public well,” said Acting General Counsel William Cowen.

Daily eBriefs - February 3, 2025

Sanchez v. Superior Court (Consumer Defense Legal Group) A party’s inability to pay arbitral fees and costs can preclude enforceability of an arbitration agreement because the high fees and costs would render the agreement unconscionable. A party may be relieved from an order compelling arbitration due to the party’s inability to afford to initiate or continue arbitration proceedings. Sanchez v. Superior Court (Consumer Defense Legal Group) - filed Feb. 3, 2025, Fourth District, Div. Three Cite as 2025 S.O.S. 334 Full text click here >http://sos.metnews.com/sos.cgi?0225//G064490 Casey v. Superior Court (D.R. Horton) - filed Feb. 3, 2025, First District, Div. One The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act preempts attempts under state law to compel arbitration of cases relating to a sexual harassment dispute, and parties cannot contract around the law by way of a choice-of-law provision. Casey v. Superior Court (D.R. Horton) - filed Feb. 3, 2025, First District, Div. One Cite as 2025 S.O.S. 338 Full text click here >http://sos.metnews.com/sos.cgi?0225//A170650 Murphy v. AAA Auto Insurance of Southern California - filed Jan. 24, 2025, publication ordered Jan. 31, 2025, Fourth District, Div. Three A coverage exclusion for collision damage occurring while a car is being operated to transport property in exchange for compensation applies to both independent contractors and drivers employed to transport property; this exclusion does not contravene Labor Code §2802 or violate public policy. Murphy v. AAA Auto Insurance of Southern California - filed Jan. 24, 2025, publication ordered Jan. 31, 2025, Fourth District, Div. Three Cite as 2025 S.O.S. 345 Full text click here >http://sos.metnews.com/sos.cgi?0225//G063742 Nabors Corporate Services v. City of Long Beach - filed Jan. 31, 2025, Second District, Div. Five A federal district court is a court within the meaning of Labor Code §1781; an order and judgment confirming an arbitrator’s award is plainly a decision of a court for purposes of indemnity under the plain meaning of §1781; §1784 does not merely clarify preexisting rights or expand remedies based on preexisting duties; it creates new rights to indemnity based on conduct by hiring parties that did not support them prior to its enactment. Nabors Corporate Services v. City of Long Beach - filed Jan. 31, 2025, Second District, Div. Five Cite as 2025 S.O.S. 348 Full text click here >http://sos.metnews.com/sos.cgi?0225//B328026.

Information for the Public on NLRB Office of the General Counsel Authority for Continuing Operations, Representation Case Processing, and Court Litigation

This provides notice to the public that pursuant to the National Labor Relations Act, 29 CFR 102.178, and applicable case law, the NLRB Office of the General Counsel’s Field Offices will continue their normal operations of processing unfair labor practice cases and representation cases. Further, under 29 CFR 102.182 during any period when the Board lacks a quorum “all representation cases may continue to be processed and the appropriate certification should be issued by the Regional Director notwithstanding the pendency of a request for review, subject to revision or revocation by the Board pursuant to a request for review filed in accordance with this subpart.” Finally, under the Board’s 2011 “Order Contingently Delegating Authority to the General Counsel” contained at 76 Federal Register 69768 the General Counsel currently has “full and final authority and responsibility on behalf of the Board to initiate and prosecute injunction proceedings under section 10(j) or section 10(e) and (f) of the Act, contempt proceedings pertaining to the enforcement of or compliance with any order of the Board, and any other court litigation that would otherwise require Board authorization; and to institute and conduct appeals to the Supreme Court by writ of error or on petition for certiorari.” 76 Fed. Reg. 69,768 (2011). Questions about casehandling matters may be directed to the NLRB’s Field Offices.

General Counsel Abruzzo Issues Memo on Harmonizing the NLRA and EEO Laws

You are subscribed to Press Releases for National Labor Relations Board. This information has recently been updated, and is now available. General Counsel Abruzzo Issues Memo on Harmonizing the NLRA and EEO Laws 01/16/2025 11:23 AM EST January 16, 2025 Today, NLRB General Counsel Jennifer Abruzzo issued a memo to all field offices on the harmonization of the National Labor Relations Act (NLRA) and federal equal employment opportunity (EEO) laws. The memorandum emphasizes the importance of complying with all requirements of the NLRA and the EEO laws and offers suggestions in certain key areas on how to effectuate compliance and ensure that employees receive full protections under the laws. Specifically, it addresses and provides examples for complying with both bodies of law in three key areas—workplace civility rules, investigative confidentiality policies, and employee speech or conduct in the context of NLRA-protected activity that could potentially implicate federal EEO law. “In workplaces across the country, the NLRA and the EEO laws routinely operate in harmony, often in furtherance of shared goals and with reliance on shared principles. Such harmonization is possible because neither body of law sets forth absolutes in areas of potential overlap. Each leaves space for the other to operate,” said General Counsel Abruzzo. “Regulated parties thus can and must understand and comply with both sets of laws. Importantly, they should not purport to invoke their obligations under one to avoid their responsibilities under the other.”

NLRB General Counsel Issues Updated Representation Case Guidance

January 17, 2025 Today, NLRB General Counsel Jennifer Abruzzo issued updated guidance on representation cases, including an updated version of the Office of the General Counsel’s Outline of Law and Procedure in Representation Cases (“Outline”), the Casehandling Manual Part Two on Representation Proceedings, and an Operations-Management Memorandum. The Outline is a guidance document detailing developments in Board election and representation law and serves as a research tool. Originally issued in the early 1960s, the last major revision to the Outline was in 2017, and the NLRB has issued updated supplements for each subsequent year. The 2025 revision includes developments related to: jurisdiction, unit clarification petitions, and unit-determination and community-of-interest principles, among others. The Outline also reflects recent rulemaking by the Board. The 2025 Outline was edited by Terence G. Schoone-Jongen, Director of the Board’s Office of Representation Appeals. The Outline and other resources can be found under “Manuals and Guides” on the NLRB’s website. General Counsel Abruzzo also issued an OM Memorandum to all Field Offices related to updating the Casehandling Manual Part Two and summarizing Agency procedures regarding mail ballot elections. The memo also clarifies processes regarding RM petitions, and incorporates the changes resulting from the Board’s Fair Choice-Employee Voice Rule. “I have no doubt that the Outline will prove to be an invaluable resource for labor law practitioners, workers and their representatives, employers, academics/legal researchers and other members of the public,” said General Counsel Abruzzo. “Overall, these resources will assist greatly in effectuating our important mission of protecting workers’ rights to engage together and collectively bargain through representatives of their free choosing.”