Secretary of Labor v. Seward Ship’s Drydock, Inc.

The Respiratory Protection Standard’s §1910.134(d)(1)(iii) requires covered employers to evaluate the respiratory hazards at their workplaces whenever there is the potential for overexposure of employees to contaminants, in order to determine whether respirators are necessary to protect the health of employees.

Secretary of Labor v. Seward Ship’s Drydock, Inc. - filed Sept. 11, 2019

Cite as 2019 S.O.S. 18-71216

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Rudel v. Hawai’i Management Alliance Association

Challenges to an ERISA plan’s right to reimbursement are properly characterized as ERISA §502(a) claims; under §502, asserted remedies and causes of action that conflict with ERISA’s civil enforcement scheme are deemed preempted. When a claim is removed from state to federal court, the state law claim is reconfigured as a federal ERISA cause of action; §514 expressly preempts state laws that relate to any employee benefit plan but saves from preemption any state law that regulates insurance, banking, or securities. If a case is properly before a federal court under §502, then a state statute that is saved from preemption under §514 and does not conflict with §502, can supply the relevant rule of decision.

Rudel v. Hawai’i Management Alliance Association - filed Sept. 11, 2019

Cite as 2019 S.O.S. 17-17395

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Board Adopts Contract Coverage Standard for Determining Whether Unilateral Changes Violate the Act

WASHINGTON, DC—In a decision issued today, the National Labor Relations Board adopted the “contract coverage” standard for determining whether a unionized employer’s unilateral change in a term or condition of employment violates the National Labor Relations Act. In doing so, the Board abandoned the “clear and unmistakable waiver” standard, which has been rejected by several federal courts of appeals, notably including the Court of Appeals for the District of Columbia Circuit, which has plenary jurisdiction to review Board rulings.

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Head v. Wilkie

The panel reversed the district court’s order granting summary judgment to defendants in an action brought by Christian Head, M.D., an African-American, board-certified head and neck surgeon who filed a lawsuit against his employer, the Secretary of the Department of Veterans Affairs and individual employees alleging, in part, that his supervisors violated 42 U.S.C. § 1985(2) by conspiring to deter him from testifying in a colleague’s and his own civil rights cases.

The district court granted the defendants’ motion for summary judgment on the § 1985(2) conspiracy claim, relying on David v. United States, 820 F.2d 1038 (9th Cir. 1987), which held that only parties to the initial case who were “hampered in being able to present an effective case” can show injury sufficient to bring a section 1985(2) claim.

The panel held that this court’s decision in David was abrogated by Haddle v. Garrison, 525 U.S. 121, 126 (1998), to the extent that David limited section 1985(2) claims on statutory standing and injury grounds in conflict with Haddle. The panel held that a plaintiff asserting conspiracy under section 1985(2) need not show that the party in the original proceeding was hampered in presenting an effective case; interference with a witness’s employment is a cognizable injury for section 1985(2) purposes. The panel held that David’s limitations were irreconcilable with Haddle’s proclamation that intimidation or retaliation against witnesses in federal court proceedings constitute the “gist of the wrong” at which the statute is directed. The panel held that, as other sister circuits have recognized, this expanded view of section 1985(2) aligned with the Supreme Court’s broad reading of the Reconstruction civil rights acts like section 1985.

The panel held that plaintiff’s allegations that employees retaliated against him based on his testimony in a colleague’s federal civil rights case and in his own case alleged a cognizable injury. The panel reversed the district court’s order granting summary judgment to the defendant supervisors on plaintiff’s section 1985(2) conspiracy claim and remanded for further proceedings consistent with the panel’s opinion and with the concurrently filed unpublished memorandum, which addressed plaintiff’s remaining employment discrimination claims.

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Board Finds Partial Plant Unit at Boeing’s South Carolina Facility Not an Appropriate Unit

WASHINGTON, DC – The National Labor Relations Board held today that a petitioned-for unit at Boeing’s South Carolina plant that was limited to only two job classifications within an aircraft production line was not an appropriate unit for purposes of conducting a union election. In so doing, the Board applied and clarified the traditional community-of-interest standard. The case is The Boeing Company (10-RC-215878; 368 NLRB No. 67).

The decision resolves a petition filed by the International Association of Machinists Union for a unit of approximately 178 mechanics out of a workforce totaling over 2700 employees.  Boeing argued that the mechanics – flight-line readiness technicians and flight-line readiness technician inspectors – must be included in the larger community of workers at the aircraft production plant where the Company’s 787 Dreamliner is built.   

The Board noted its prior rejection of the “micro-unit” holding in Specialty Healthcare, 357 NLRB 934 (2011) and its return in PCC Structurals, Inc., 365 NLRB No. 160 (2017), to the traditional community-of-interest test. In one of the first cases applying the traditional test since issuing PCC Structurals, the Board set forth a clarifying, three-step analysis for determining whether a petitioned-for unit is appropriate. Under that analysis, the Board will consider (1) whether the members of the petitioned-for unit share a community of interest with each other, (2) whether the employees excluded from the unit have meaningfully distinct interests in the context of collective bargaining that outweigh similarities with unit members, and (3) guidelines the Board has established for appropriate unit configurations in specific industries.

In reaching its decision, the Board found that the mechanics in the petitioned-for unit did not share an internal community of interest and did not have sufficiently distinct interests from those employees excluded from the petitioned-for unit. The Board also concluded that there were no appropriate-unit guidelines specific to the employer’s industry. 

Chairman John F. Ring was joined by Members Marvin E. Kaplan and William J. Emanuel in the majority opinion. Member McFerran, dissenting, would have found the petitioned-for unit appropriate.

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Thurston v. Midvale Corporation

Cheryl Thurston is blind and uses screen reader software (a screen reader) to access the Internet and read website content. She filed this lawsuit after she could not access appellant’s restaurant website, www.whisperloungela.com, with her screen reader.  Her complaint alleged appellant violated the Unruh Civil Rights Act (Civ. Code, § 51 et seq.) by violating the federal American with Disabilities Act of 1990 (ADA) (42 U.S.C. § 12101 et seq.).

This appeal asks us to decide whether Title III of the ADA applies to this website, requiring appellant Midvale Corporation to render its restaurant website accessible to blind individuals such as Thurston.  Accessibility would require Midvale to redesign its website so it can be read aloud by screen reader software.  Appellant asks us to adopt the 20-year-old minority position of the United States Court of Appeals for the Third Circuit that the ADA applies to physical barriers to physical places only and to reverse the trial court’s imposition of an injunction and statutory damages and grant of summary judgment in favor of Thurston.  We decline to do so.

Appellant raises three other contentions.  First, it argues that even if the ADA applies to websites, summary judgment must be reversed because the statutory damages award and the injunction violate its right to due process.  Appellant next contends summary judgment must be reversed because there is a triable issue of fact as to whether providing a telephone number and email address is an acceptable alternative to a website accessible by screen readers.  Finally, appellant contends the injunction must be dissolved because it is overbroad and uncertain and Thurston lacked standing to claim prospective relief.  The claims invoking due process, standing, and overbreadth are claims appellant made in its own unsuccessful cross-motion for summary judgment. We agree with the trial court on all issues and affirm the judgment.

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Arias v. Residence Inn by Marriott

The panel vacated the district court’s order sua sponte remanding to state court a putative class action brought by employees against Residence Inn by Marriott, which had been removed to federal court under the Class Action Fairness Act.

The panel held that when a notice of removal plausibly alleges a basis for federal court jurisdiction, a district court may not remand the case back to state court without first giving the defendant an opportunity to show by a preponderance of the evidence that the jurisdictional requirements were satisfied. Marriott’s notice of removal alleged that the amount in controversy requirement was satisfied, and the district court did not conclude that Marriott’s allegations were implausible. The panel held that by remanding the case to state court sua sponte, the district court deprived Marriott of a fair opportunity to submit proof. The panel concluded that this error warranted vacatur of the remand order.

The panel held that when a defendant’s allegations of removal jurisdiction are challenged, the defendant’s showing on the amount in controversy may rely on reasonable assumptions. The panel held that Marriott’s notice of removal included personnel and payroll data, and with that data, Marriott estimated the amount-in-controversy by making assumptions that were plausible and may prove to be reasonable in light of allegations in the complaint. The panel held that on remand Marriott must show that its estimated amount in controversy relied on reasonable assumptions. The panel held that when a statute or contract provides for the recovery of attorneys’ fees, prospective attorneys’ fees must be included in the assessment of the amount in controversy.

The panel rejected plaintiff’s contention that the position taken by Marriott in its summary judgment motion in state court – that plaintiff’s claims are barred by a release from a prior class action settlement – defeated federal court jurisdiction.

The panel remanded on an open record for the district court to permit the parties to submit evidence and arguments on the amount in controversy.

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