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February 1, 2009
DCB welcomes new associate Adam Zapala to its San Francisco office. Adam comes to DCB from Bay Area Legal Aid, where he was a staff attorney.
January 12, 2009
DCB welcomes Sarah Grossman-Swenson to its San Francisco office. A recent graduate of the University of California at Berkeley, Boalt Hall School of Law, Sarah was co-editor-in-chief of the Berkeley Journal of Employment and Labor Law.
October 23, 2008
A California court granted the Monterey/Santa Cruz Counties Building & Construction Trades Council summary judgment on its claims that workers redeveloping the former Fort Ord on the Monterey Peninsula must be paid at prevailing wage rates. The judge's ruling covers some $800 million in current and proposed commercial and residential construction work on the former military base. Monterey/Santa Cruz Building & Construction Trades Council et al. v. Marina Community Partners et al., No. M81343 (Cal. Sup. Ct. 2008).
DCB represented the Trades Council in all phases of the litigation.
October 9, 2008
The District of Columbia Court of Appeals affirmed a jury verdict in favor of Alexandra Cerpe in her lawsuit for sexual harassment and retaliatory discharge against the Fred A. Smith Management Company. Fred A. Smith Management Co. v. Cerpe, 957 A.2d 907 (D.C. 2008). The Court of Appeals also upheld the jury's award of compensatory and punitive damages.
The appeal was litigated by DCB and Murphy Anderson PLLC.
September 25, 2008
The Arizona Supreme Court upheld the Arizona Homeowners' Bill of Rights initiative petition over constitutional and statutory challenges, clearing the way for the initiative to appear on the November 2008 ballot. Wilhelm v. Brewer, 219 Ariz. 45, 192 P.3d 404 (Ariz. 2008). The Homeowners Bill of Rights contains innovative consumer protections, including a mandatory ten-year warranty on new homes and a homeowner right to select the contractor to make defect repairs, a requirement that sellers disclose their relationships with financial institutions, and an obligation that model homes accurately reflect what is for sale. DCB represented the Homeowners’ Bill of Rights Committee, a coalition of labor and community groups, in developing and defending the initiative.
July 29, 2008
In Parra v. Bashas', Inc., 536 F.3d 975 (9th Cir. 2008), the Ninth Circuit Court of Appeals reversed a district court ruling and held that current and former Hispanic workers at Bashas' grocery stores had established commonality in their class action claims that Bashas' engaged in pay discrimination in violation of Title VII. The Court of Appeals held that the plaintiffs had presented "extensive evidence showing Bashas', Inc.'s discriminatory pay practices commonly affected all members of the proposed class."
The class is represented by DCB and the Impact Fund.
December 28, 2007
DCB attorneys this month won two decisions from California courts of appeal: in Plumbers Local 290 v. Rea, the court agreed with the union's interpretation of state prevailing wage laws as covering construction on common areas of a privately-owned office building where a public agency was leasing most of the building's office space. The court rejected the contrary view of the State Department of Industrial Relations. The court also awarded the union its attorneys' fees under the private attorney general doctrine.
In Rubalcava v. City of Los Angeles and UNITE HERE Local 11, the appellate court reversed a trial court's invalidation of a new ordinance setting a living wage requirement for hotels near LAX airport. The trial court had relied on the fact that an earlier ordinance also setting such a requirement had been rescinded in response to a referendum petition containing the necessary number of signatures to put the issue on the ballot. The appellate court held the differences between the new and old ordinances were significant enough that the constitutional right to referendum had not been violated by the City. (The City added assistance to the airport zone and promised not to regulate wages in other zones without first finding those zones met certain criteria).
September 13, 2007
DCB Files Class Action Lawsuits Against LAX-Area Hotels
Employees at eight LAX-area hotels – the Four Points, Marriott, Renaissance, Embassy Suites, Courtyard, Westin, Hilton and Radisson – filed class action lawsuits in Los Angeles Superior Court. The complaints, filed September 5, 2007, charge the hotels with violating a recently enacted city law requiring LAX area hotels to pay to their employees all tips and services fees collected on their behalf. Despite the law, the hotels have continued to pocket the fees that they are collecting on behalf of their employees.
For more information about the class action lawsuits, go to www.servicechargesforhotelworkers.com.
July 20, 2007
Union representation victory in Pittsburgh
UNITE HERE Local 57 was today certified as the collective bargaining representative of the workers at the Pittsburgh Renaissance Hotel. The certification was based on a check of authorization cards revealing that a majority of the workers want UNITE HERE to represent them.
This certification comes after a long struggle by the workers and the union. The hotel and the union signed an organizing agreement in 2001 that provided, among other things, that the employer would remain neutral with respect to its workers’ decision whether to join a union and that it would respect that choice by means of a card check. After receiving benefits under the agreement, the hotel announced it was reneging on its own promises to its workers and declared the agreement void. The union sued to enforce the agreement in federal court in Pittsburgh, where it prevailed, and the hotel appealed.
The U.S. Court of Appeals for the Third Circuit affirmed the union’s position. Its landmark published opinion, written by then-Judge Michael Chertoff, rejected the hotel’s arguments, including ones that had been advanced by opponents of card check/neutrality agreements—and even a member of the National Labor Relations Board. First, the court held that federal labor law did not preempt the city’s labor-peace ordinance, which sought to protect the city’s investment in particular hospitality projects by requiring the project owner to get a labor-peace guaranty. Second, the court rejected the argument that Section 302 of the Taft Hartley Act renders unlawful agreements between employers and unions to set guidelines for employee organizing, including neutrality and card-check recognition. The Supreme Court denied the hotel’s request for additional review. Hotel Employees and Restaurant Employees, Local 57 v. Sage Hospitality Resources, LCC, 390 F.3d 206 (3rd Cir. 2004), certiorari den. 544 U.S. 1010, 125 S.Ct. 1944, 161 L.Ed.2d 792, 177 L.R.R.M. (BNA) 2192 (2005).
June 19, 2007
Major First Amendment victory for labor
The U.S. Court of Appeals for the D.C. Circuit today denied enforcement to an NLRB order against union protest. Sheet Metal Workers Local 15 v. NLRB (Brandon Regional Medical Center), 491 F.3d 429 (D.C. Cir. 2007). This breakthrough decision holds that unions enjoy the same First Amendment rights as other protestors, even when they protest “secondary” entities who do business with employers in a labor dispute.
The case involved a mock funeral conducted by five members of the Sheet Metal Workers outside a Tampa-area hospital. The hospital used non-union contractors on its construction of a new hospital wing. The Union saw this policy as part of a “culture of corporate greed that also affects patient care." Its mock funeral criticized the Hospital’s patient care record. The funeral was peaceful, orderly, and non-threatening.
The NLRB nevertheless proceeded against the funeral as an unlawful secondary boycott. The NLRB convinced the 11th Circuit to affirm an interim injunction on this ground. On review of the final NLRB order, however, the D.C. Circuit held that the mock funeral enjoyed First Amendment protection as much as if it had been conducted by an anti-abortion group or environmentalist group.
Read how management-side law firms from Indiana to Baltimore are describing this decision.
The D.C. Circuit also rejected the NLRB’s rule that unions must give construction site owners advance assurance that their picketing will honor reserved gates.
UPDATE: Read the article in Slate decribing the decision.
June 6, 2007
DCB welcomes summer clerk Joey Hipolito to the San Francisco office. Joey completed his first year at the University of California, Berkeley School of Law (Boalt Hall). Prior to law school, Joey worked for many years as a researcher for the United Food and Commercial Workers in Washington.
In addition, DCB welcomes Jill Cartwright as the Washington office law clerk. She is a 3L at American University, Washington College of Law. Prior to law school Jill worked for Emily’s List and the Democratic Congressional Campaign Committee, and also worked with UNITE HERE Local 11 in Los Angeles organizing hotel workers. She recently published an article, Why Fight Fought: A Missed ERISA Opportunity in the Ninth Circuit, 37 Golden Gate U. L. Rev. 567 (2007).
May 18, 2007
The Appellate Court of Illinois upheld the Illinois Hotel Room Attendant Rest Break Law over constitutional challenges. Illinois Hotel & Lodging Association v. Ludwig, -- N.E.2d --, 2007 WL 1462185 (Ill.App. 2007). The Rest Break Law is a first of its kind statute that requires hotels to provide room attendants with two 15-minute rest breaks and a 30-minute meal period. The law allows room attendants to bring civil actions for treble damages if the hotel fails to do so. The Illinois Hotel and Lodging Association sued to block enforcement, claiming that the law violated the Illinois and United States Constitutions and was preempted by the National Labor Relations Act. The Appellate Court rejected both of these arguments. The court recognized that the quota system under which hotel room attendants work forces them to skip rest breaks and has contributed to increases in injury rates in recent years. The court held that the Illinois Legislature had a rational basis for targeting the law exclusively to Cook County, since Cook County has more room attendants than the rest of Illinois combined and since Cook County hotels are financially stronger than those in other regions of the state.
Davis, Cowell & Bowe represented UNITE HERE Local 1, which intervened in the case.
March 8, 2007
The Nevada Supreme Court upheld a preliminary injunction against the state Labor Commissioner removing job classes from his published wage determination. The Court held such an administrative decision had to be preceded by formal APA rulemaking. The Court refused to distinguish its earlier ruling in 2005 to similar effect in a slightly-different procedural context (the Court held that the availability in the instant case of a wage determination hearing not available in the prior case made no difference, as this remedy was inadequate because it allowed the Commissioner to unilaterally implement his decision first and then hear objections later, unlike under the APA).
February 9, 2007
The U.S. Court of Appeals for the District of Columbia issued its decision in the landmark San Manuel v. NLRB case. The panel of three judges ruled unanimously that it was proper for the National Labor Relations Board to assert jurisdiction over Indian casinos. UNITE HERE, the charging party, has been represented by Davis, Cowell & Bowe in all phases of the case.
The court rejected the Tribe’s argument that the doctrine of Indian sovereignty prevented the exercise of NLRB jurisdiction. It saw sovereignty as a function of the relative interest of the tribe and of the federal (or state) government. In this case, it found the tribal interest in sovereignty was relatively weak and the federal interests were strong. The court relied primarily upon the facts that the union put before the Board: the casino caters to a mostly non-Indian clientele and employs mostly non-Indian workers. It is a large business that is like non-Indian casinos in all material respects. The court stated that it recognized that there were some governmental attributes to the establishment of the casino, because the negotiation of the compact with the State of California and the adoption of the Tribal Labor Relations Ordinance were governmental acts, but concluded that nevertheless, “operation of a casino is not a traditional attribute of self-government” and that “impairment of tribal sovereignty is negligible in this context, as the Tribe’s activity was primarily commercial and its enactment of labor legislation and its execution of a gaming compact were ancillary to that commercial activity.”
The court also found “no indication that Congress intended to limit the scope of the NLRA when it enacted IGRA [Indian Gaming Regulatory Act].” There is nothing explicit in IGRA about labor relations. “This is not a case in which Congress enacted a comprehensive scheme governing labor relations at Indian casinos, and that the Board is out to expand its jurisdiction into that field.”
February 6, 2007
Ninth Circuit Affirms Class Action Certification in Gender Discrimination Suit Against Wal-Mart
The Ninth Circuit Court of Appeals upheld the class action status of a gender discrimination suit, Dukes v. Wal-Mart, alleging that Wal-Mart pays female employees less than men and promotes women at a lower rate than it does men. With a class made up of nearly 2 million women, this is the largest gender discrimination suit in history.
The Ninth Circuit upheld the District Court’s decision, finding that the plaintiffs “present significant proof of a corporate policy of discrimination and support Plaintiffs’ contention that female employees nationwide were subjected to a common pattern and practice of discrimination.”
More information is available at www.walmartclass.com.
January 26, 2007
In Magana v. Woodfin Suite Hotels, Alameda Superior Court Case No. RG06291309, hotel workers won their 2nd restraining order preserving their jobs against being fired for Social Security no-matchs. These workers had complained in August 2006 to their employer and the City of Emeryville about the hotel not complying with the City's new living wage ordinance, but then workers were told in September that they would be let go due to the lack of match between the social security numbers they provided at time of hire and numbers on file with SSA (even though the employer had repeatedly been told in prior years about these no-matches and not taken any prior action to require workers to fix their numbers). The Court relied in part on the City's enactment recently of a supplemental ordinance sharply limiting employers' ability to discharge workers while their administrative complaints are pending before the City. The current court order precluding these discharges is good until April 20th.
January 11, 2007
The United States District Court for the Northern District of California ruled that the case against Costco for sex discrimination would go forward as a class action. The class includes all women employed by Costco in the United States (including Puerto Rico) at any time on or after January 3, 2002 who have been denied promotion to Assistant General Manager or General Manager positions or have been denied assignments to Senior Staff Manager positions (Merchandise, Receiving, Administration or Front End Managers). In certifying the class, Judge Marilyn H. Patel noted, “[i]n evaluating all of the evidence presented, the court finds that plaintiffs have presented strong evidence of a common culture at Costco which disadvantages women."
The order is available here . Learn more about the class action case against Costco here.
December 12, 2006
DCB Wins Judgment of $304,000 in Sex Harassment Retaliation Case
DCB successfully represented a plaintiff in a sexual harassment discrimination and retaliation case in a jury trial before the District of Columbia Superior Court. A judgment was issued recently awarding the plaintiff $304,000 in damages, plus attorneys’ fees and costs totaling approximately $180,000.
September 18, 2006
DCB is pleased to welcome Sarah Varela to the San Francisco office. DCB also welcomes Keira McNett back as an associate in the Washington office. Keira was formerly a law clerk for the Washington office.
September 8, 2006
In Nevadans for Nevada et al. v. Beers et al., 142 P.3d 339 (Nev. 2006), the Nevada Supreme Court held unanimously that the Tax and Spending Control for Nevada (TASC) initiative petition should be struck from the November 2006 ballot. The Court ruled that the TASC proponents’ failure to follow the constitutional requirement that an exact copy of the petition be filed with the Secretary of State prior to circulation invalidated the initiative.
TASC would have severely curtailed public services in Nevada by limiting state and local government spending to an inflexible growth formula. The right-wing Americans for Limited Government has targeted similar “taxpayer bill of rights” initiative measures at seven other states this year.
August 23, 2006
DCB Clients Help Defeat Challenge to Hotel Living Wage Ordinance
In 2005, UNITE HERE Local 2850 with the help of community group East Bay Alliance for a Sustainable Economy (EBASE) persuaded voters in the City of Emeryville California to approve an initiative ordinance setting a higher local minimum wage just for hotel workers. It also requires workers be retained when hotels are sold, provides premium pay if housekeepers have to clean more than 5000 square feet per day (adjusted downwards for checkout rooms), and provides for access to the hotel by organizations helping employees for the purpose of assisting in ordinance enforcement. Two hotels, led by the Woodfin, sued in federal court. Woodfin Suites v. City of Emeryville, USDC N.D. Cal. Case No. 4:06-01254. Federal judge Saundra Braun Armstrong issued a 30-page opinion rejecting their motion for preliminary injunction on August 22, 2006. She found either the hotels did not have standing to make various claims (for example, to complain about the ordinance violating employees' privacy in requiring payroll records be provided to the City for enforcement purposes), or found their arguments lacked merit (the Hotels claimed the ordinance was preempted by federal labor law and invalid under equal protection principles). EBASE with the union's help participated as an amicus ("friend of the court") submitting briefs and supporting declarations.
July 28, 2006
In Illinois Hotel & Lodging Association v. Ludwig, No. 05-CH-13796 (Cook Co. Cir. Ct. 2006), Davis, Cowell and Bowe successfully defended the constitutionality of the Room Attendant Amendment to the Illinois One Day Rest in Seven Act. Davis, Cowell & Bowe represented UNITE HERE Local 1, which was allowed to intervene as a defendant in the case. The court rejected claims that the Room Attendant Amendment was unconstitutional and preempted by the National Labor Relations Act.
The Room Attendant Amendment gives some 7,000 hotel room attendants in Cook County the right to two fifteen-minute rest breaks, a half-hour meal period, a room in which to take their breaks, and access to clean drinking water. The law also gives workers the ability to enforce these rights through private actions. UNITE HERE Local 1 lobbied for passage of the law in response to the serious health and safety risks faced by room attendants nationwide, as upgrades in guest room bedding and amenities have led to increased workloads.
May 2006
DCB is happy to announce that Jacob Frisch is the Washington office's 2006 summer law clerk. He is currently a 3L at Tulane University Law School where he is a member of the Moot Court Board. His primary areas of interest are labor and employment law.
We are also happy to announce that Anne Shaver is the San Francisco office’s 2006 summer law clerk. In Fall 2006, she will start her third year at Boalt Hall (UC Berkeley). Her primary areas of interest are labor law and immigration/detainment work.
March 22, 2006
In Sheet Metal Workers Int'l Assn v. Labor Commissioner and Red Rose Roofing v. Labor Commissioner (Case No. 42656, unpub., 3/22/06), the Nevada Supreme Court held that unions which report prevailing wage violations have a right to be heard at the Commissioner's administrative hearings on employer objections to preliminary findings of violation. The Court also upheld the state statute and regulation imposing penalties for employer failures to provide payroll reports on time (in that case, the penalties for two weeks' worth of late reports came to $54,000).
February 10, 2006
Nevada Supreme Court Upholds Rights of State Employees to Additional Pension When Privatized
In a suit assisted by the State of Nevada Employees Association (AFSCME), DCB recently obtained a state supreme court ruling holding that state employees are entitled under state statute to obtain additional pension service credit when their agencies are privatized, even if at the time they are only eligible for early retirement. This ruling will mean that several million dollars are owed by the private company which took over the operation from the state. In Cable v. EICON, 122 Nev. Adv. Op. No. 12 (2/9/06), the Nevada Supreme Court held that these privatized workers were entitled to receive 5 years additional pension service credit under a statute making such a benefit available when a state agency "reduces the number of employees". The dissenters contended the statute not applicable when the entire agency is privatized. The decision for the 4-3 majority was written by Justice Michael Douglas.
December 1, 2005
DCB welcomes Winifred Kao as an associate in the firm's San Francisco office.
September 15, 2005
The Nevada Supreme Court ruled in favor of DCB client Southern Nevada Operating Engineers Trust by reversing the Labor Commissioner's attempt to delete one of the Operating Engineers' job classes (soils testers) from his list of jobs covered by state prevailing wage law. The Court agreed that the Commissioner was required to proceed by way of formal rulemaking instead of making an ad hoc decision (after an employer violated the previously-published wage order which had expressly included testers as a covered class).
June 16, 2005
LA Hotel Workers' Strike Ends in Victory
On Saturday, June 11, a tentative agreement between UNITE HERE Local 11 and the Los Angeles Hotel Employer's Council was announced. It covers nearly 3000 workers in the leading Los Angeles tourism and convention hotels, many of them recent immigrants and women. The settlement occurred after 14 months of arduous negotiations and immediately after an unfair labor practice strike began at one hotel and the others were faced with the question whether to lock out. It was mediated by the newly-elected Mayor of Los Angeles, Antonio Villaraigosa.
The Union achieved its central goal, a 2006 expiration date. Contracts covering hotel workers in other major United States and Canadian cities with substantial density of unionized hotels also expire in 2006. Negotiators also settled unfair labor practice charges that developed during the course of the bargaining.
On June 15, 2005, the members of the bargaining unit ratified the settlement by a 98% vote in favor.
DCB attorneys represented Local 11 in the negotiations and the unfair labor practices cases.
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