Friday, May 29, 2009
NLRB argues DC Circuit’s quorum ruling “erroneously” departs from Supreme Court precedent, seeks rehearing
Background. In Laurel Baye Healthcare, the court vacated and remanded the Board's Decision and Order, finding that the Board—composed of only two members instead of the required three—was not properly constituted and did not have the authority to issue the order. The court reasoned that the Board's interpretation of NLRA, Section 3(b) violated the "principal of statutory interpretation" by steering clear of various portions of the statutory language. The interpretation by the Board, noted the court, seemed to ignore the requirement that the quorum requirement of at least three members be satisfied "at all times."
The court found that the Board seemed to treat its group quorum requirements and those of a delegee group as mutually exclusive—which was not the case. The language of a delegee group quorum requirement did not do away with the Board's requirement of at least three members; rather, it stated that "only the quorum of any three-member delegee group shall be two." Thus, the court stressed, the Board quorum requirement of a three-member panel still had to be satisfied, irrespective of whether the Board's authority was delegated to a group of its members.
The court concluded that, while the language of the two quorum provisions (those used by the Board to advance its argument) allows for a three-member Board to delegate its powers to a three-member group, and this delegee group can act with two members, it can only do so as long as the Board quorum is "at all times" satisfied—which was not the situation presented in this case. Therefore, in finding that the Board was not properly constituted when it issued its decision, the court granted Laurel Baye's Petition and vacated the decision. The case was remanded to the Board for decision at such time as a proper quorum is established.
Thursday, May 28, 2009
The recent nomination by President Obama of Sonia Sotomayor as his pick for US Supreme Court Justice has sparked debate on whether her judicial “tendencies” fall more to the left, right, or somewhere near the center. From an employment law perspective, her opinions have often sided with the plaintiffs, and this may have some employers concerned that her vote may tip the scales against them.
Sotomayor’s opinions have dealt with race, sex, age and disability discrimination. In particular, look to her reasonings in:
- Norville v. Staten Island University Hospital, 196 F.3d 89 (2d Cir. 1999);
- Cruz v. Coach Stores, 202 F.3d 560 (2d Cir. 2000);
- Parker v. Columbia Pictures, 204 F.3d 326 (2d Cir. 2000);
- Malesko v. Correctional Services Corp., 229 F.3d 374 (2000);
- Raniola v. Bratton, 243 F.3d 610 (2d Cir. 2001);
- Hankins v. Lyght, 441 F.3d 96 (2d Cir. 2006);
- Washington v. County of Rockland, 373 F.3d 310 (2d Cir. 2004); and
- Ricci v. DeStefano, 530 F.3d 87 (2008), (an unsigned opinion now awaiting the Supreme Court's final determination due in June).
A comprehensive review of these and other decisions has been prepared by Akin Gump’s Tom Goldstein and a group of summer associates. The resulting summary of civil cases, including several noteworthy rulings, are posted on ScotusBlog.
Wednesday, May 27, 2009
In Mathews v Denver Newspaper Agency LLP, the District Court for the District of Colorado found that an employee's right to litigate his retaliation and discrimination claims was waived and cited Pyett for the proposition that discrimination claims are waivable through grievance arbitration. Unlike Pyett, the plaintiff had the opportunity to litigate his claims, but instead opted for binding arbitration, as his CBA allowed. In essence, the plaintiff himself waived his right to litigate his claims. The waiver did not stem from the CBA, as in Pyett, but rather from the plaintiff's own choice.
The District Court for the Southern District of New York has also weighed in. In Kravar v Triangle Services, Inc, the court cited Pyett for the proposition that CBAs which effectively preclude plaintiffs from raising discrimination claims in any forum cannot be upheld. The Supreme Court's decision in Pyett expressly declined to consider whether the CBA in that case acted as a substantive waiver of the plaintiff's ADEA rights; although the provision allowed the union to block arbitration, the plaintiffs failed to brief the issue. The Southern District faced exactly that question. The CBA in question stated that all discrimination claims would be settled through arbitration, but only if the union requested it. The union decided not to arbitrate, and in so doing, blocked the plaintiff's substantive rights. If anything, this case suggests that the questions raised by Pyett will continue to fuel debate, until the Supreme Court rules on this final point.
The Court may not get the chance, however. The Senate version of the Arbitration Fairness Act includes a provision that would expressly overturn the US Supreme Court’s ruling in Pyett. Russ Feingold, the measure's author, has said that the proposed bill would "make it clear that such agreements may not waive employees’ rights to take federal and state statutory or constitutional claims to court.”