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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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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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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