Articles Posted in Labor & Employment Law

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In 2008 Oncor began installing smart meters that can report customers’ electricity usage remotely, eliminating the need for personal inspection and the associated labor costs. In 2012 a Texas Senate committee investigated whether smart meters have harmful effects on public health.” Reed, an Oncor “trouble man” who completed ad hoc repair jobs and responded to power outages, who was also the union's business manager and financial secretary, volunteered to testify. Reed signed the witness list as representing the union. During his brief testimony, Reed said he represented the local union and spoke of the meters burning, testified to receiving repair orders or damaged boxes after the meters burned, and spoke of experiences with disgruntled customers. Oncor investigated, concluded that Reed’s testimony was false, and terminated his employment. An ALJ found a violation of the National Labor Relations Act by interfering with Reed’s protected union activities. The NLRB affirmed. The D.C. Circuit remanded, directing the NLRB to clarify its decision under a two-prong test for assessing whether employees’ third-party appeals constitute protected concerted activity or amount to such detrimental disloyalty as to permit termination for cause. Even disparaging statements can enjoy protection where the communication indicates it is related to an ongoing dispute between the employees and the employers and the communication is not so disloyal, reckless or maliciously untrue as to lose protection. View "Oncor Electric Delivery Compan v. National Labor Relations Board" on Justia Law

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The DC Circuit affirmed the Board's finding that PI was a successor employer and thus violated Sections 8(a)(5) and (1) of the National Labor Relations Act by refusing to recognize and bargain with the union. The court upheld the Board's presumption of majority support for the union where there was "substantial continuity" between the two enterprises, the presence within the bargaining unit of a majority of employees who had previously worked for the predecessor, and the existence of an ongoing demand for collective bargaining on the part of the union. Therefore, the Board's determination that PI met the criteria for successorship was supported by substantial evidence. View "Publi-Inversiones de Puerto Rico, Inc. v. NLRB" on Justia Law

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After Torres Advanced terminated Plaintiffs Elliott and Sickle's contracts when Elliott sought workers' compensation benefits under the Defense Base Act, 42 U.S.C. 1651, and Sickle medically documented Elliott's claim, plaintiffs filed suit for breach of contract and common law torts. The DC Circuit held that the Act preempted Elliott's tort claims because they derived from his efforts to obtain Defense Base Act benefits. The court held, however, that the Act did not preempt Sickle's claims or Elliott's contract claim because those injuries arose independently of any claim for workers' compensation benefits. Accordingly, the court affirmed in part, reversed in part, and remanded for further proceedings. View "Sickle v. Torres Advanced Enterprise Solutions, LLC" on Justia Law

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After Torres Advanced terminated Plaintiffs Elliott and Sickle's contracts when Elliott sought workers' compensation benefits under the Defense Base Act, 42 U.S.C. 1651, and Sickle medically documented Elliott's claim, plaintiffs filed suit for breach of contract and common law torts. The DC Circuit held that the Act preempted Elliott's tort claims because they derived from his efforts to obtain Defense Base Act benefits. The court held, however, that the Act did not preempt Sickle's claims or Elliott's contract claim because those injuries arose independently of any claim for workers' compensation benefits. Accordingly, the court affirmed in part, reversed in part, and remanded for further proceedings. View "Sickle v. Torres Advanced Enterprise Solutions, LLC" on Justia Law

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Petitioner sought review of the Board's determination that it violated the National Labor Relations Act by refusing to bargain with the union. Petitioner claimed that the Board unreasonably discounted two threats that tainted the election, which the union won, and that union adherents told employees they risked deportation if they voted against the union and the union used an observer at one voting location who had recently been discharged for possession of a gun. The DC Circuit held that, given the lack of evidence connecting the gun incident to the election or to the union itself, that the Board did not abuse its substantial discretion in certifying the election results. The court also held that none of petitioner's additional objections was substantial enough to trigger its "extremely limited" scope of review. Therefore, the court denied the petition and granted the Board's cross-application for enforcement. View "Equinox Holdings, Inc. v. NLRB" on Justia Law

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Industry and the Unions petitioned for review of the Department of Labor's final rule regulating exposure to silica. Industry raised five issues, all of which the DC Circuit rejected. The court also rejected the Unions' challenge to the construction standard's 30-day trigger for medical surveillance. The court held, however, that OSHA failed to adequately explain its decision to omit medical removal protections from the Rule and remanded for further consideration of the issue. View "North America's Building Trade Unions v. OSHA" on Justia Law

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At issue in this case was whether the provisions in the Master Agreement between the Agency and the Union covered a matter with respect to which the parties had a dispute after the Master Agreement was signed. The Agency argued that the DC Circuit's decision in BOP I, 654 F.3d 91 (D.C. Cir. 2011), was controlling. In BOP I, the court held that "Article 18 covers and preempts challenges to all specific outcomes of the assignment process." The court held, in accord with BOP I, that the subject of consolidated relief rosters was covered by Article 18 of the Master Agreement. Accordingly, the court granted the petition for review and reversed the decision of the Authority. View "DOJ v. FLRA" on Justia Law

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Menorah petitioned for review of the Board's finding that Menorah had violated the National Labor Relations Act (NLRA). The DC Circuit set aside the Board's determination that Menorah improperly denied the nurses' requests for union representation in the peer-review-committee hearings: when, as here, employees were not obligated to take part in an investigatory hearing, there was no requirement that they be permitted to bring a union representative if they elect to participate; sustained the Board's decision in all other respects, including the Board's finding that Menorah committed unfair labor practices in denying the union's request for information about the peer-review committee and in maintaining a confidentiality rule barring workers from discussing incidents subject to the committee's oversight; and therefore granted the petition in part and enforced the Board's order in part. View "Midwest Division - MMC, LLC v. NLRB" on Justia Law

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Plaintiff, an African-American, filed suit against DHS, alleging that the Department's decision to give a promotion for which he was qualified to a Caucasian female employee just four weeks after he had complained of race and age discrimination was unlawful retaliation. The DC Circuit reversed the district court's dismissal of his retaliation claim for failure to exhaust remedies, holding that plaintiff expressly raised the non-promotion retaliation claim in his equal employment opportunity complaint. The record at this early procedural juncture showed that plaintiff came forth with sufficient factual allegations and inferences to require, at a minimum, that he be afforded discovery before summary judgment proceedings. Because the record contained a number of plausible factual disputes pertaining to plaintiff's claims of retaliation that could not be resolved on a motion for summary judgment, the court remanded those claims to the district court for further proceedings. View "Coleman v. Duke" on Justia Law

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Plaintiff filed suit against the Department, alleging unlawful race and national origin discrimination under Title VII, 42 U.S.C. 2000e et seq. The DC Circuit subsequently decided sua sponte to reconsider the case and vacate its prior opinion. The court held that nothing in its Title VII precedent on lateral transfers would bar plaintiff from proceeding to trial and that he had otherwise proffered sufficient evidentiary support to show summary judgment was inappropriate. Accordingly, the court reversed and remanded for further proceedings. View "Ortiz-Diaz v. HUD" on Justia Law