Daily Archives: December 18, 2012

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.

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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.

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The Sedona Conference Publishes Primer on Social Media

This post is geared towards lawyers and individuals working with electronic discovery (or anyone interested in discovery in a lawsuit of social media).

The Sedona Conference just published a Primer on Social Media.  The current version is open for public comments.  The purpose of the Primer is to provide primary instruction to the bar and the bench.

via The Sedona Conference® Publishes Primer on Social Media (Pubic Comment Version) : Electronic Discovery Law.

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Judge Admonished for Comments About Victim’s ‘Technical Rape’ and Lack of Body Shutdown

You may remember the argument, which caused public outrage, over the belief that a body just “shuts down” when a woman is not subjected to real rape.  A judge used this same language in a California case, and was admonished for showing bias – a trait that runs afoul of judicial ethics.  These are the relevant parts of the article published in the ABA Journal News.

Judge Derek Johnson, from Orange County, California, was publicly admonished for saying a sexual assault victim had suffered only a “technical” rape and didn’t display vaginal damage characteristic of rape victims he had encountered as a prosecutor.

Judge Derek Johnson of Orange County had advanced his theory on body shutdowns during rape in a 2008 sentencing hearing, according to the opinion (PDF) by the California Commission on Judicial Performance.  The judicial discipline opinion has a transcript of his explanation why:

Johnson: “I spent my last year and a half in the DA’s office in the sexual assault unit. I know something about sexual assault. I’ve seen sexual assault. I’ve seen women who have been ravaged and savaged whose vagina was shredded by the rape. I’m not a gynecologist, but I can tell you something: If someone doesn’t want to have sexual intercourse, the body shuts down. The body will not permit that to happen unless a lot of damage is inflicted, and we heard nothing about that in this case. That tells me that the victim in this case, although she wasn’t necessarily willing, she didn’t put up a fight. And to treat this case like the rape cases that we all hear about is an insult to victims of rape. I think it’s an insult. I think it trivializes a rape.”

Johnson: “I just found the threats to be technical threats. I found this whole case to be a technical case. The rape is technical. The forced oral copulation is technical. It’s more of a crim law test than a real live criminal case.”

The commission said Johnson’s remarks reflected biased and insensitive views about sexual assault victims who do not “put up a fight.” Johnson had apologized for the remarks to the commission, saying he was frustrated by a sentencing request he considered inappropriate under the law. He remains on the bench.

via Judge Admonished for Comments About Victim’s ‘Technical Rape’ and Lack of Body Shutdown – News – ABA Journal.

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