Monthly Archives: December 2012

Happy Holidays!

Happy holidays!

This blog will be taking a hiatus due to the holidays.  Legal news posts will back on January 3rd.

 

Leave a comment

Filed under Uncategorized

Unlimited FDIC insurance on IOLTA accounts likely to expire

Lawyer IOLTA accounts that help fund civil legal aid and other legal programs are likely to lose their unlimited federal insurance coverage on Jan. 1.

The ABA Governmental Affairs Office says it appears unlikely that lawmakers will act this year to extend the unlimited coverage provided by the Federal Deposit Insurance Corp., according to an ABA statement.

If Congress does not act, the amount of FDIC insurance available will be $250,000 per client, per financial institution, as long as the account is properly designated as a trust account and there is a proper accounting of each client’s funds.

IOLTA grants totaled $125 million last year.  About 90% of the money supports legal aid offices and pro bono programs.

via Unlimited FDIC Insurance on IOLTA Accounts Likely to Expire; $250K Will Be New Client Coverage Limit – News – ABA Journal.

Leave a comment

Filed under attorneys, courts, District Court, Pending Legislation

No Probable Cause vs. 1st and 4th amendment?

This is an interesting decision, allowing the first and fourth amendment claims of Port Militarization Resistance, an anti-war group, to go ahead.

The lawsuit arose when allegedly two civilian U.S. Army employees (Towery and Rudd) spied on the anti-war members and secretly disrupted protests.  The anti-war group was protesting the use of sea ports in Washington State for shipments of military supplies to Iraq and Afghanistan.

The lawsuit alleges defendants befriended the anti-war group and “influenced and directed” tactics to disrupt protests without cause, and that defendants broke into a confidential attorney-client list serve.

The district court dismissed most of the claims, but allowed First and Fourth Amendment allegations against Towery and Rudd to go ahead, despite their motion for qualified immunity.  The Ninth Circuit Court of Appeals affirmed.

The Ninth Court stated,

“It is clearly established that intentionally enabling arrests without probable cause in order to suppress speech violates the First Amendment,” the unsigned and unpublished opinion from Seattle states.

“Plaintiffs have pled a plausible violation of their clearly established First Amendment rights,” the ruling states. “Plaintiffs have alleged that defendants ‘deterred or chilled the plaintiff’s political speech’ and that such deterrence motivated defendants’ conduct.”

via Courthouse News Service.

Leave a comment

Filed under Appellate, civil rights, District Court, legal decision, Privacy Rights

NLRB Clarifies Social Media Case Analysis

I mentioned this case before in a prior post.  Nevertheless, it warrants a follow up post dealing specifically with this case: Hispanic United of Buffalo.

In Hispanic United of Buffalo,the NLRB clarified the analysis for Facebook and other social media cases.

The facts are fairly typical for the increasing number of Facebook cases.  One employee had been complaining about the performance of co-workers and informed one of them that she was going to report her criticisms to the boss.  The co-worker posted a message on her Facebook page noting the criticism, saying she had “about had it,” and asking her fellow co-workers how they felt.  Four of them posted a defense of their work on the Facebook page, all while off-duty and on their own computers.  The employer fired all five for bullying the critical employee on Facebook.

All three Board members (Block, Griffin, and Hayes) agreed that the usual analysis for Section 8(a)(1) terminations–Meyers Industries–is applicable.  There wasn’t much discussion on this point, which is not surprising, as there is really nothing special about using social media other than it’s newer and cooler than more traditional forms of communication.  This essentially confirms what the General Counsel and many commentators (including yours truly) has been saying for a while, but it’s obviously a lot more helpful for the Board to make that clear.

via Workplace Prof Blog: NLRB Clarifies Social Media Case Analysis.

Leave a comment

Filed under labor, legal decision, NLRB, Privacy Rights, union

NLRB holds dues check-off survives CBA expiration

Recently, the NLRB released its decision (3-1) in WKYC-TV, in which the NLRB reversed the long-standing rule Bethelem Steel that agreements for dues checkoffs will not continue after the contract expires.

The new rule will not apply to pending cases.   The essence of the majority decision is that because dues checkoffs are mandatory subjects of bargaining, the normal Katz rule for such topics–that they must continue while a new contract is being negotiated–should apply unless there is a reason for an exception; the majority found that there wasn’t.  In making this conclusion, the majority distinguished clauses that involved the waiver of rights, like no-strike clauses.  The majority also criticized Bethelem Steel for treating dues checkoff provisions the same as union security clauses (in part because of its reading of Sections 8(a)(3) and 302(c)).

Member Hayes dissented, arguing that there was no evidence that the old rule wasn’t working. Further, he disagreed with the majority’s statutory interpretation.  He also stressed that limiting dues checkoffs to an active collective-bargaining agreement was more consistent with the concept of voluntary unionism.

via Workplace Prof Blog: Dues Check-Off Now Survives Contract Expiration.

Leave a comment

Filed under labor, legal decision, NLRB, union

TN County agrees to reform judicial system

The ABA Journal Blog reports on a ground-breaking agreement between TN Shelby County and the US Dep’t of Justice.  The agreement regards the juvenile judicial system, includes the following provisions:

  • Teens will be advised of their Miranda Rights;
  • Teens will get a probable cause hearing on detention within 48 hours; and
  • Teens will get help from specially trained public defenders.

This agreement arose from a federal investigation which found the following:

  • Black teens were twice as likely as white teens to be detained;
  • Black teens were transferred to adult criminal court for low-level offenses;
  • Black teens were subjected to unnecessary restraints;
  • Black teens were not advised of their Miranda rights; and
  • Black teens were held in detention on weekends and holidays because no probable cause hearings were held.

via A Tennessee County Agrees to Grant New Protections to Accused Juveniles in Template for Reform – News – ABA Journal.

Leave a comment

Filed under civil rights, legal decision

John Smith appointed to Court of Appeals

The Minnesota Lawyer Blog reports on the most recent appointment to the Minnesota Court of Appeals.

Judge John P. Smith was appointed to the Minnesota Court of Appeals. Smith will replace  Judge  Wilhelmina M. Wright, who was appointed earlier this year to the Minnesota Supreme Court.

Smith has served on the Ninth  District Court for over 21 years. He was appointed to the bench by Gov. Arne Carlson in 1991, and has served as chief judge and assistant chief judge. He has is currently  president of the Minnesota District Judges Association.

via John Smith appointed to Court of Appeals – MinnLawyer Blog.

Leave a comment

Filed under courts, Judges, Minnesota

NLRB recent decisions

This is the list of the most recent and significant decisions decided by the NLRB:

Hispanics United of BuffaloThe Board found that the employer unlawfully fired five employees because of their Facebook posts and comments about a coworker who intended to complain to management about their work performance. In its analysis, the Board majority applied settled Board law to the new world of social media, finding that the Facebook conversation was concerted activity and was protected by the National Labor Relations Act. Member Hayes dissented.

Alan Ritchey, Inc. – In a unanimous decision that resolved the last of the two-member cases returned following the 2010 Supreme Court decision in New Process Steel, the Board found that where there is no collectively-bargained grievance-arbitration system in place, employers generally must give the union notice and an opportunity to bargain before imposing discipline such as a discharge or suspension on employees. Member Hayes was recused.

Latino Express In a decision that will affect most cases in which backpay is awarded, the Board decided to require respondents to compensate employees for any extra taxes they have to pay as a result of receiving the backpay in a lump sum. The Board will also require an employer ordered to pay back wages to file with the Social Security Administration a report allocating the back wages to the years in which they were or would have been earned. The Board requested briefs in this case in July 2012. Member Hayes did not participate in the case.

Chicago Mathematics & Science Academy – Rejecting the position of a teachers’ union, the Board found that it had jurisdiction over an Illinois non-profit corporation that operates a public charter school in Chicago. The non-profit was not the sort of government entity exempt from the National Labor Relations Act, the Board majority concluded, and there was no reason for the Board to decline jurisdiction. Member Hayes dissented in part.

United Nurses & Allied Professionals (Kent Hospital) – The Board, with Member Hayes dissenting, addressed several issues involving the rights of nonmember dues objectors under the Supreme Court’s Beck decision. On the main issue, the majority held that, like all other union expenses, lobbying expenses are chargeable to objectors, to the extent that they are germane to collective bargaining, contract administration, or grievance adjustment. The Board invited further briefing from interested parties on the how it should define and apply the germaneness standard in the context of lobbying activities.

WKYC-TV, Gannet Co. Applying the general rule against unilateral employer changes in terms and conditions of employment, the Board found that an employer’s obligation to collect union dues under a check-off agreement will continue after the contract expires and before a bargaining impasse occurs or a new contract is reached. Member Hayes dissented.

Leave a comment

Filed under labor, legal decision, NLRB, union

DC Court held union shirt was insulting

This is an interesting case that discusses workers wearing union supporting T-shirts.  In this case, the case depended on whether the shirt was “insulting” and affected the employer’s business.

The DC Court, after reviewing a decision by the National Labor Relations Board, held that a T-shirt bearing the union logo with a slogan stating “I don’t need a WOW to do my job” was insulting and the union worker could not wear that T-shirt.  The opinion can be accessed here.

The background is as follows.  Medco, the employer, has a WOW program – which centers on weekly events at which designated employees receive WOW awards for their achievements.  When the worker was summoned to a meeting with management and a client, management ordered the union worker to remove the shirt.  In addition, management, in sum or substance, told the worker that if he didn’t support the WOW program, he should look for other jobs.

Medco argued that the shirt violated the company’s ban on “phrases, words, statements, pictures, cartoons or drawings that are degrading, confrontational, slanderous, insulting or provocative.”

The National Labor Relations Board nevertheless found that the worker wore the shirt as a union-supported protest, and management unlawfully invited the worker to quit his job in response to his protest of working conditions.

The DC court disagreed.  The court stated,

Medco makes a straightforward argument that the message on the T-shirt was insulting to the company and would have undermined its efforts to attract and retain customers.

To that end, Medco has provided considerable evidence that the WOW program is an important element of the pitch it gives prospective and current clients.

Nevertheless, the DC court also explained,

We do not think the board has adequately explained why Medco’s claim of harm to customer relations requires evidence beyond what it has already adduced. … Especially for a firm selling a service, concern for customers’ appraisal of its employees’ attitudes seems natural. Obviously we don’t mean to suggest that employers are free to suppress employee speech in the interest of presenting a Potemkin village of intra-firm harmony, but that is quite different from trying to exclude the display of slogans that an outsider might read as sullen resentment (especially when the object of discontent is something so seemingly inoffensive as the WOW program).

(Italics and parentheses in original.)

via Courthouse News Service.

Leave a comment

Filed under labor, legal decision, NLRB, union

NHL sues NHL player’s union

The National Hockey League, as well as all of its teams, sued the NHL players’ union.  The NHL’s federal complaint alleges that the union is engaging in an impermissible bargaining tactic by allegedly threatening to file an antitrust lawsuit.

The NHL’s complaint further states,

In recent days, many union members have publicly asserted that they intend to decertify the union, or vote in favor of the union’s renouncing or ‘disclaiming interest’ in its role as the exclusive bargaining representative of NHL players, an impermissible bargaining tactic defendants mistakenly believe would enable them to commence an antitrust lawsuit challenging the legality of the NHL’s ongoing lockout of NHL players and thereby to pressure the NHL to accede to the union’s preferred outcome in collective bargaining.

Last night [Thursday, Dec. 13], the NHLPA Executive Committee authorized that a vote be taken over the next four days on whether to authorize the union’s leadership to disclaim interest in its role as the exclusive bargaining representative of NHL players so that the NHL players could commence antitrust litigation against the NHL in order to secure a more favorable collective bargaining agreement.

The union’s improper threats of antitrust litigation are having a direct, immediate and harmful effect upon the ability of the parties to negotiate a new collective bargaining agreement.

The NHL therefore seeks a declaration that the NHL’s ongoing lockout, which is lawful as a matter of federal labor law, does not violate the antitrust laws, and as such, can neither be enjoined nor result in any legally cognizable or compensable damages to defendants.

NHL’s complaint further alleges “that the Norris-LaGuardia Act deprives the federal courts of jurisdiction to enjoin or restrain the ongoing lockout without regard to any purported disclaimer by the NHLPA;” that the lockout is legal under the Clayton Antitrust Act, “and thus does not result in any legally cognizable or compensable damages to NHL players;” and five other claims, all similar to the second one.

via Courthouse News Service.

2 Comments

Filed under union