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NLRB CASES REMODELING STORE IS BENEFIT A food market unlawfully announced it would remodel its store in the middle of a union election campaign. The Union was held entitled to a new election. (U Save Foods, 341 NLRB No. 22 Jan. 2004) CASINO VIOLATES LAW WITH "NO-TALK" RULE The Double Eagle Casino in Cripple Creek Colorado violated employees’ Section 7 rights by adopting a rule that employees could not talk about ‘Company" issues during break time (Double Eagle Casino, 341 NLRB No. 17 , Jan. 2004) NLRB AFFIRMS POLICY ON "PERFECTLY CLEAR" SUCCESSORS A successor employer that promised to hire all employees and keep conditions in effect violated the law when it later unilaterally changed wages and re-set benefits. The Board found the Company to be a "perfectly clear" successor that could not then legally alter the initial terms and conditions of employment. (Elf Atochem, 339 NLRB No. 93 July 2003) COURT CASES SIXTH CIRCUIT BYPASSES ARBITRATION CLAUSE SIGNED BY INDIVIDUAL EMPLOYEE The Sixth Circuit Court of Appeals in Cincinnati has allowed an employee to bypass an arbitration clause she signed in a non-union environment, allowing her to file her Title VII discrimination suit. The Company had total control over the pool of arbitrators and thus it was not a fair system. (McMullen v. Meijer, Sixth Circuit, January 2004) WAGE & HOUR CASES WORKERS PREPARING CHICKEN FEATHERS FOR FISHING LURES HELD AGRICULTURAL A Colorado chicken farmer was held to be entitled to treat as exempt from wage and hour laws his chicken feather ‘pelt’ producers, who prepared feathers for use in lures. That work was held to be ‘secondary farming," the 10th Circuit ruled. (Rodriguez v. Whiting Farms, Inc., 10th Cir., 2/10/04) |
ELECTRIC UTILITY EMPLOYEES GET OVERTIME FOR SOME OF ON-CALL TIME Even though living in company-provided housing, Electric Utility’s employees are entitled to compensation for time spent waiting for a potential emergency. The employees lived in a remote area, and the court construed that four hours of their waiting should be compensated. (Brigham v. Eugene Water & Electric Board, Ninth Circuit, 2/3/2004) LABOR SECRETARY ELAINE CHAO CALLS OPPONENTS OF RULES GUTTING OVERTIME RIGHTS "MALICIOUS." Chao claims the new rules are intended to increase eligibility for overtime for now exempt workers from $55 to $455 per week. This means that if you are a manager, and make less than $455 per week, you may now be eligible for overtime. But Union shave charged that under the new rules, nurses, firefighters, and other first responders, could be excluded form overtime. Further, the "how to avoid overtime" instructions the DOL issued to companies were mere examples of the new rules in practice, Chao claimed. She also refused to refute the claims of the President of the Council of Economic Advisors that outsourcing of jobs was "a plus for the economy in the long run," but only stated that she thought the comments were not meant "to sound so harsh." ARBITRATION EMPLOYEE EXTENDING LUNCH TIMES ALLOTTED IS HELD PROPERLY FIRED An employee taking 47 and 50 extra minutes for lunch two consecutive days was held to have been properly fired. The contract allowed for discharge for falsification of w ork report, despite the employee’s long service and clean record. (Time Warner Cable, 119 LA 261 Franckiewicz, Arbitrator, 2004). ANTI-TRUST NFL RULE AGAINST ELIGIBILITY OF HIGH SCHOOL ATHLETE NOT EXEMPT FROM ANTI-TRUST LAWS A federal court in the southern district of New York held that a high school football player who wanted to turn pro could properly challenge the NFL rule that no team can draft a player earlier than three seasons from his high school graduation. The Plaintiff, a freshman at Ohio State University, had the star quality to play in the NFL but was not allowed to do so by this rule. The Court held that the rule had nothing to do with core collective bargaining, and was therefore not exempt from charges of restraint of trade. (Clarett v. NFL, S.D.N.Y 2/5/2004)
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FMLA EMPLOYEE ON FMLA MAY STILL BE FIRED FOR MISCONDUCT An employee who had over-used his Company credit card while tele-commuting after a traffic accident, was held to be properly fired even though on FMLA. While that statute prohibits retaliation based on being on leave, it does not prevent an Employer from acting on a legitimate non-discriminatory reason for discharge. (Jarjoura v. Ericsson, N.D. Texas, 5/22/03) EEO SUPERVISOR’S EXPOSURE OF PENIS TO FEMALE WORKER HELD NOT TO BE CONSTRUCTIVE KNOWLEDGE TO EMPLOYER In a case under the Michigan EEO laws, Ford Motor Company was held not to be liable for the acts of its supervisor because of its lack of knowledge of same. Along with various lewd remarks, the supervisor was alleged to have exposed himself, masturbated, physically attacked, and demanded oral sex, over a four year period of time. In the second year, the Plaintiff reported the masturbation to two other supervisors, but told them she was so embarrassed about it that she did not want it reported to management, so the supervisors kept it quiet. Ford also successfully kept from the jury the supervisor’s conviction of indecent exposure, which occurred when the supervisor pulled his company car alongside a car of young women, pointed to his groin area, and began masturbating. Plaintiff’s claims were dismissed. (Elezovic v. Ford Motor Company, Michigan Court of Appeals, 10/23/03) AGE DISCRIMINATION IN EMPLOYMENT ACT SCHOOL DISTRICT HELD TO VIOLATE ADEA BY STATING IT WON’T HIRE ANY MORE "OLD PLUMBERS" The Plaintiff in this case applied for a plumber position with Hazelton Pennsylvania School District. He was trumped by a younger plumber who had a certification that he did not. The Superintendent had boldly stated that she was "not going to hire any more old plumbers." and that she had instead hired a "fine young man." Holding that the certification requirement was pretextual, the Court noted that the ad for the position did not set forth the certification requirement. The jury found for the Plaintiff and assessed liquidated damages and attorney fees. (Potence v. Hazelton Area School District, 3d Circuit, 2/2/2004) April 2004
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This newsletter is not intended as legal advice. For assistance on any of the topics discussed, contact your GMLB attorney.
Deborah Godwin Samuel Morris Eugene Laurenzi Jeff Bloomfield
Barclay Roberts Timothy Taylor Bobby Martin Betsy McKinney