Daily Archives: December 14, 2012

More on Michigan’s Right-To-Work Laws

The Michigan House of Representatives approved its right-to-work law illegally last week, while police locked the public out of the state Capitol, a union member claims in an Open Meetings Act complaint.  The right-to-work law makes it illegal to demand union membership as a condition of employment, though workers who do not pay union dues will still be covered by union-negotiated contracts.

Robert Davis, an AFSCME representative, sued the Michigan House in Ingham County Court.  Davis is seeking to invalidate the law on several grounds.

First, Davis alleges Michigan violated Michigan’s Open Meetings Act.  The Act provides that “all meetings of a public body shall be open to the public and shall be held in a place available to the general public.  All persons shall be permitted to attend any meeting except as otherwise provided by this act.”

In his complaint, Davis states that he “and at least one other member of the plaintiff Citizens United were denied entry and access to the State Capitol and to the defendant House’s December 6, 2012 session meeting by the Michigan State Police.”

Further, Davis alleges that no exclusion applies.  Pursuant to Michigan’s Open Meetings Act, “A person shall not be excluded from a meeting otherwise open to the public except for a breach of the peace actually committed at the meeting.”  Davis claims that he and his group “did not commit any civil disobedience or disturbances of the peace that would warrant plaintiffs being denied entry to defendant House’s December 6, 2012 session meeting.”

Therefore, Davis claims, the vote on the anti-union bill was illegal.

via Courthouse News Service.

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Filed under courts, labor, union

Wal-Mart Class Action: class not narrowed

I bring to you this legal decision in a sex discrimination class action against Wal-Mart because it provides an example of a class that was not narrowed by the Court.  This is the Dukes case that went up to the Supreme Court to discuss the issue of commonality.  This decision can be found here.

In a 2001 federal complaint led by Betty Dukes, a putative class claimed that Wal-Mart Stores received paid women less and offered them fewer promotions than it offered men in comparable positions.

Though a San Francisco federal judge initially certified a class that would cover estimated 1.5 million women, making it the largest civil rights case in U.S. history, the Supreme Court disbanded that class in 2011 on the basis of lacking commonality. On remand, the plaintiffs filed a fourth amended complaint that seeks to certify a narrower class than that rejected by the high court.

The Bentonville, Ark.-based company responded with a motion to strike the class allegations. It claims that the statute of limitations bars the claims, and that the newly proposed class still fails to meet the commonality requirement.

Denying that motion, the Northern District of California set a deadline of Jan. 11, 2013, for the class-certification motion.  Undeterred, Wal-Mart sought leave to file an interim appeal with the 9th Circuit.

Wal-Mart argued that the Dukes Supreme Court decision should be interpreted as a total rejection of plaintiffs’ theories.  The District Court disagreed.  The District Court held that the Dukes Supreme Court decision rested on plaintiffs’ “inadequacy of their proof.”

The District Court explained:

The Supreme Court’s decision foreclosed claims that delegated discretion -alone- is sufficient to state a common question for purposes of Rule 23.  It does not follow that any time a plaintiff alleges that a company has a policy involving some amount of delegated discretion, the plaintiff is precluded from showing a classwide pattern or practice of discrimination or a common mode of exercising delegate discretion susceptible to classwide relief.  That is why the Supreme Court reached the question whether the plaintiffs had evidence on those points sufficient to establish a common question under Rule 23.

In his conclusion, Judge Breyer denied the interlocutory appeal “on the grounds that (1) immediate appeal would not, at this time, materially advance the ultimate termination of the litigation in light of the impending certification motion, and (2) no substantial grounds for difference of opinion exist regarding the commonality issue.”

via Courthouse News Service.

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Filed under Appellate, courts, employment, legal decision, Supreme Court, wage

Union Decertification Case Law

The D.C. Circuit Court of Appeals, in SFO Goodnite Inn v. NLRB, ____F.3d____ (D.C. Cir. Nov. 20, 2012), enforced  a National Labor Relations Board order finding a California hotel improperly withdrew recognition from a UNITE HERE local, rejecting the hotel’s argument that it lawfully relied on anti-union petitions signed by a majority of its employees.

In the decision, the court approved the NLRB’s interpretation of Hearst.

[T]he Board has now articulated a clear line for applying the Hearst presumption of taint in “the narrow circumstance where an employer unlawfully instigates or propels a decertification campaign, and then invokes the results of that campaign to justify its unilateral withdrawal of recognition from its employee’s representative.”

The Board explained that the Hearst presumption applies where the employer is directly involved in advancing a decertification petition, whereas the Master Slack test applies where the employer committed unfair labor practices unrelated to the petition that may have contributed to the erosion of support for the union.

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Continued Dip in Number of Female Associates

The ABA Journal has this troubling trend to report:  a decline of female associate lawyers.

The percentage of female associates in law firms has fallen slightly for the third year in a row, even as women made small gains in partnership ranks, according to NALP, the Association for Legal Career Professionals.

Women made up 45.05 percent of associates in an “incremental but steady slide from 45.66 percent in 2009,” according to a NALP press release.

Women account for 19.91 percent of law firm partners, compared to 19.54 percent last year. Overall, women represent 32.67 percent of lawyers in law firms in 2012, compared with 32.61 percent in 2011 and 32.69 percent in 2010. The high water mark, reached in 2009, was 32.97 percent.

Minorities make up 20.32 percent of the associate ranks, up from 19.9 percent last year.Minority women are “the most dramatically underrepresented group” at the partnership level, comprising 2.16 percent of partners in 2012, the press release says.

via Continued Dip in Number of Female Associates Is Significant and Troubling Trend – News – ABA Journal.

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