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Northeastern Land Services, Ltd. d/b/a The NLS Group (1-CA-39447; 352 NLRB No. 89) Providence, RI June 27, 2008

http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35289.htm

The Board reversed the administrative law judge's decision dismissing the complaint.  The Board concluded that the Respondent violated Section 8(a)(1) of the Act by maintaining an overbroad confidentiality provision in its employment contracts.  Specifically, the Board found that the confidentiality provision - which provided, in pertinent part, that an employee's disclosure of his terms of employment to other parties could constitute grounds for dismissal - was unlawfully overbroad because employees reasonably would construe it as prohibiting discussions of terms and conditions of employment with union representatives, activity protected by Section 7 of the Act.

Further, relying on Board precedent establishing that an employer's imposition of discipline pursuant to an unlawfully overbroad rule is necessarily unlawful, the Board  additionally concluded that the Respondent violated Section 8(a)(1) by terminating employee Jamison Dupuy for discussing terms of his employment with a client, i.e.,  breaching the above-described confidentiality provision.  Chairman Schaumber noted, however, that he "questions the theory that an employer's imposition of discipline pursuant to an unlawfully overbroad rule is necessarily unlawful."
(Chairman Schaumber and Member Liebman participated.)

Charge filed by Jamison Dupuy, an individual; complaint alleged violation of Section 8(a)(1).  Hearing at Providence on May 8, 2002.  Adm. Law Judge Joel P. Biblowitz issued his decision June 27, 2002.

Dedicated Services, Inc. (29-CA-28447; 352 NLRB No. 93) Richmond Hill, NY June 27, 2008

http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35293.htm

The Board adopted the administrative law judge's findings that the Respondent violated Section 8(a)(2) and (1) of the Act by informing applicants that they must sign dues-checkoff authorization cards for Journeymen and Allied Trades Local 713 as part of the application process and by recognizing Local 713 at a time when it lacked majority support among employees at the Respondent's Richmond Hill facility.  In making the latter finding, the Board rejected the Respondent's defense that the Richmond Hill employees had been lawfully accreted into an existing unit of employees at its Queens Village, NY facility.  The Board assumed, without deciding, that the date on which the Respondent recognized Local 713 was the operative date for the accretion analysis.  Because Local 713 did not have majority support at the time of recognition, Member Liebman found it unnecessary to rely upon the judge's discussion of the General Counsel's alternative theory that the recognition was otherwise premature and unlawful.  Finally, the Board adopted the judge's finding that the Respondent violated Section 8(a)(3), (2), and (1) by executing a collective-bargaining agreement with Local 713 that contained a union-security clause.

(Chairman Schaumber and Member Liebman participated.)

Charge filed by Amalgamated Transit Union Local 1181-1061; complaint alleged violation of Section 8(a)(1), (2), and (3).  Hearing at Brooklyn on Dec. 17, 2007.  Adm. Law Judge Steven Fish issued his decision March 4, 2008.

Part-time VA physician was subject to Civil Service Reform Act

Mangano v. US (9th Cir 07/01/2008)

http://caselaw.lp.findlaw.com/data2/circs/9th/0517334p.pdf

Mangano was discharged from his part-time job as a physician with the Veterans' Administration (VA).  He sued the VA under the Federal Tort Claims Act (FTCA) for emotional distress and other injuries allegedly suffered in conjunction with his discharge.  The trial court dismissed for lack of subject matter jurisdiction.  The 9th Circuit affirmed, concluding that Mangano's claims were preempted by the Civil Service Reform Act (CSRA).

Mangano was hired as a part-time physician pursuant to 38 USC Section 7405(a)(1)(A).  That Section provides that the Veterans Health Administration may employ part-time physicians "without regard to civil service or classification laws, rules, or regulations."  Based on the plain language of that provision, the 9th Circuit held in Orloff v. Cleland, 708 F.2d 372 (9th Cir 1983) that "civil service laws shall not apply to part-time physicians employed by the VA."  However, eleven years after Orloff Congress amended the CSRA to provide that "employees appointed under chapter 73 or 74 of title 38 shall be employees" for purposes of various sections of the CSRA.  Included among those sections of the CSRA is Section 2302, which governs prohibited employment practices.  The court concluded that, although Section 7405(a) allows part-time VA physicians to be hired "without regard to civil service or classification laws, rules, or regulations," once such employees are hired they are subject to relevant provisions of the CSRA (including Section 2302)

Trial court erred in dismissing employee's 81-page complaint for alleged violation of Fed.R.Civ.P. 8

Hearns v. San Bernardino (9th Cir 07/01/2008)

http://caselaw.lp.findlaw.com/data2/circs/9th/0556214p.pdf

Hearns sued the public employer, asserting claims for violation of Title VII, 42 USC Sections 1981, 1983, 1985, and 1986, and state law.  The complaint was 81 pages in length and contained 17 claims.  An amended complaint was of similar brevity.  The trial court dismissed for violation of Fed.R.Civ.P. 8.  The 9th Circuit reversed.  The court observed that "[i]t is the right and duty of a plaintiff initiating a case to file a 'short and plain statement of the claim [ ]'" under Fed.R.Civ.P. 8(a)(2).  The court concluded, however, that "[n]either complaint warranted dismissal under Rule 8:  although each set forth excessively detailed factual allegations, they were coherent, well-organized, and stated legally viable claims."

Receipt of "no match" letter from Social Security Administration didn't constitute knowledge that employees were undocumented

Aramark v. Service Employees (9th Cir 07/16/2008)

http://caselaw.lp.findlaw.com/data2/circs/9th/0656662p.pdf

The employer received a "no match" letter from the Social Security Administration (SSA), indicating that the employer had reported information on some of its employees that did not match the SSA's records.  The employer gave the affected employees three days to correct the mismatches.  When the employees failed to comply, they were discharged.   At grievance arbitration, an arbitrator concluded that the employees were discharged without just cause under the parties' collective bargaining agreement.  He ordered them reinstated with backpay.  The trial court vacated the arbitration award on the basis that it violated public policy.  The 9th Circuit reversed the trial court and confirmed the arbitration award.

The employer argued that the arbitration award violated the public policy expressed in the Immigration Reform and Control Act of 1986 (IRCA).  Under IRCA, employers are subject to civil and criminal liability if they knowingly employ undocumented workers.  Under IRCA, the "knowing" element can be satisfied by "constructive knowledge."  The court observed that IRCA provided a sufficient public policy basis for vacating an arbitration award, but concluded that receipt of the "no match" letters did not constitute knowledge (or constructive knowledge) that the employees were undocumented.  The court noted that "[a social security number] discrepancy does not automatically mean than an employee is undocumented....In fact, the SSA tells employers that the information it provides them 'does not make any statement about ... immigration status' and 'is not a basis, in and of itself, to take any adverse action against the employee.'"  The court thus concluded that the arbitrator did not err in determining that the employees were discharged without just cause.

RCC Fabricators, Inc. (4-CA-31757, 4-RC-20569, 20572; 352 NLRB No. 88) Southampton, NJ June 9, 2008

http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35288.htm

The Board affirmed the administrative law judge's finding that foremen Ronald Earley and James Phillips were statutory supervisors based on the finding that they exercised independent judgment when assigning, and effectively recommending the assignment of, employees to departments and significant overall tasks.  In light of that finding, the Board did not pass on the judge's further finding that they possessed the power to discipline and effectively recommend discipline, and his alternative finding that foreman Phillips was the Respondent's agent.  In addition, the Board affirmed the judge's finding that Phillips unlawfully interrogated employees about a union meeting; however, it reversed the judge and dismissed the allegation that Phillips' questions about the union meeting created the impression of surveillance.  Finally, because of their supervisory status, the challenges to Earley's and Phillips' ballots were sustained.  Accordingly, the Board issued a certification of representative.

The Respondent manufactures railroad equipment and structural steel components in a plant in Southampton, New Jersey.  At all times relevant to the proceedings, Carl Baer was the shop manager.  Under his supervision, James Phillips was foreman in charge of railroad construction operations, and Ronald Earley was foreman in charge of structural steel operations.  This consolidated C and R case involves a Nov. 21, 2002 election covering employees at the Respondent's Southampton facility.   The election resulted in 6 votes for and 5 against the Petitioner (Carpenters), with 5 challenged ballots.  In his initial decision, the judge found two Section 8(a)(1) violations involving interrogation and appearance of surveillance, and he dismissed allegations of threatened plant closure and discriminatory discharge.  The judge sustained the Respondent's challenge to the discharged employee's ballot, because of his discharge, and to the ballots of two laid-off employees, because they lacked a reasonable expectation of recall.  The Board, without ruling on these conclusions, remanded the case to the judge for further consideration in light of Oakwood Healthcare, Inc., 348 NLRB No 37 (2006), Croft Metals, Inc., 348 NLRB No. 38 (2006), and Golden Crest Healthcare Center, 348 NLRB No. 39 (2006).  The judge issued a supplemental decision on Jan. 30, 2007.

The primary issue in this case was the supervisory status of foremen Phillips and Earley.  Both foremen attended weekly production meetings, and they met daily with shop manager Baer to discuss production goals and assignments.  The Board found sufficient evidence that the foremen exercised independent judgment in assigning and effectively recommending assignments in their respective production areas.

On October 10, 2002, the day after employees met with union representatives at a local pizza parlor, foreman Phillips individually questioned two employees about the meeting, who attended, and what was said.  The Board found that Phillips' conduct constituted unlawful interrogation, but it did not create the impression of surveillance.

(Chairman Schaumber and Member Liebman participated.)

Charges filed by Metropolitan Regional Council of Carpenters, Eastern Pennsylvania, State of Delaware, and Eastern Shore of Maryland; complaint alleged violations of Section 8(a)(1) and (3).  Hearing at Philadelphia, April 8 and 10, and May 15, 2003.  Adm. Law Judge Paul Buxbaum issued his decision Oct. 23, 2003, and his supplemental decision Jan. 30, 2007.

Employee recovered lost wages resulting from emotional condition caused by wrongful denial of FMLA leave

Farrell v. Tri-County Metropolitan (9th Cir 06/27/2008)

http://caselaw.lp.findlaw.com/data2/circs/9th/0635484p.pdf

Farrell sued the employer for violation of the Family Medical Leave Act (FMLA) alleging the employer's wrongful denial of FMLA leave caused an emotional condition resulting in absence from work. The jury found in favor of Farrell awarding lost wages. The 9th Circuit affirmed. The employer argued that the FMLA did not permit recovery of emotional distress damages. The court stated that the employer violated the FMLA and Farrell was awarded lost wages for days of work that he missed as a result of the employer's violation.

Employer has burden of persuasion on ADEA's reasonable factors other than age

Meacham v. Knolls Atomic Power Laboratory (US Supreme Court 06/19/2008)

http://www.supremecourtus.gov/opinions/07pdf/06-1505.pdf

The employer laid off employees during an involuntary reduction in force. Of the 31 employees laid off, 30 were over 40 years old. The workforce as a whole was 60% over 40. Some of the laid off employees sued under the Age Discrimination in Employment Act (ADEA), using a disparate impact theory. A jury found in favor of the plaintiffs.

The US Supreme Court held, 8-0, that an employer defending a disparate impact claim under the ADEA bears both the burden of production and the burden of persuasion for the "reasonable factors other than age" (RFOA) affirmative defense. The ADEA's text and structure indicate that the RFOA exemption creates an affirmative defense. The "business necessity" test has no place in ADEA disparate impact cases.

Retirement plan did not violate ADEA (5-4)

Kentucky Retirement Systems v. EEOC (US Supreme Court 06/19/2008)

http://www.supremecourtus.gov/opinions/07pdf/06-1037.pdf

EEOC sued claiming that a disability-retirement-benefits plan for state and county employees violates the Age Discrimination in Employment Act (ADEA).

The KRS disability-retirement-benefits plan disqualifies employees who are still working from receiving disability-retirement benefits if they have already reached normal retirement-benefit age at the time they become disabled. The plan also calculates disability retirement benefits in such a way that an older employee who is eligible to receive disability benefits receives fewer benefits - in the form of lower monthly benefit payments - than a younger disabled employee receiving disability-retirement benefits who is similar to the older disabled employee in every relevant factor other than age.

The US Supreme Court held, 5-4, that Kentucky's system does not discriminate against workers who become disabled after becoming eligible for retirement based on age. The differences in treatment in this particular case were not "actually motivated" by age. This was a special case of differential treatment based on pension status.

NLRA preempts state law regulating employer speech about union organizing (7-2)

Chamber of Commerce v. Brown (US Supreme Court 06/19/2008)

http://www.supremecourtus.gov/opinions/07pdf/06-939.pdf

California Gov't Code Section 16645.2(a) bars private employers who are "recipient[s] of a grant of state funds" from "us[ing] the funds to assist, promote, or deter union organizing." Similarly, Section 16645.7(a) bars "a private employer receiving state funds in excess of [$10,000] in any calendar year on account of its participation in a state program" from using such funds "to assist, promote, or deter union organizing."

The US Supreme Court held, 7-2, that the National Labor Relations Act (NLRA) preempts California's statute. California's policy judgment that partisan employer speech necessarily interferes with an employee's choice about union representation is the same policy judgment that Congress renounced when it amended the NLRA to preclude regulation of noncoercive speech as an unfair labor practice.