Altshuler Berzon LLP Partner Named One of the “Top 100 Attorneys in California”

Michael Rubin honored as a Top Attorney for fifth year in a row

September 16, 2020 – The Daily Journal’s annual list of Top 100 Attorneys in California named Altshuler Berzon LLP partner Michael Rubin for the fifth straight year, honoring him for his groundbreaking work on behalf of low-wage workers and the environment.  Citing his and the firm’s novel use of the public-nuisance doctrine to enforce COVID-19 workplace protections and to seek abatement of the harms to public infrastructure caused by global warming, the Daily Journal praised Rubin’s efforts at both the trial and appellate level. In addition to describing the firm’s success in obtaining an 11-point injunction against a local McDonald’s restaurant that had failed to adequately protect the health and safety of its crew members and their families, and two Ninth Circuit opinions allowing climate change litigation against major oil and gas companies to proceed in state court, the Daily Journal noted the “remarkable opinion” Rubin recently obtained from the Texas Court of Appeal in Fort Worth, which barred Exxon from suing California cities and counties in Texas state court for pursuing that climate change litigation, despite that appellate court’s “impulse to safeguard an industry that is vital to Texas’s economic well-being.”

Ninth Circuit Rejects Post-Janus Challenge to Public Sector Union Membership Agreements

September 16, 2020.  The Ninth Circuit Court of Appeals today issued a published decision in Belgau v. Inslee, No. 19-35137, rejecting claims by former union members, represented by a conservative advocacy organization, who alleged that their First Amendment rights were violated when their state employer deducted union membership dues that the plaintiffs themselves had agreed to pay in exchange for union membership rights and benefits.  The Court joined what it called the “swelling chorus of courts” recognizing that Janus v. AFSCME, Council 31, 38 S.Ct. 2448 (2018), did not invalidate voluntary union membership agreements.  Belgau is the first decision from a federal Court of Appeals addressing similar claims.

Altshuler Berzon LLP represented the Washington Federation of State Employees, AFSCME Council 28 in Belgau.  The firm also represents the union defendants in many other cases in which federal district courts have rejected similar claims brought against public sector unions by the same conservative advocacy organization, and other similar organizations, in the wake of the Supreme Court’s Janus decision. 

The Ninth Circuit’s decision is available here.  Posts about previous victories in similar cases, including in many cases the Court in Belgau cited, can be found here, here, here, and here.

Sixth Circuit Rejects Constitutional Challenge to Exclusive Representative Collective Bargaining

August 25, 2020 – The U.S. Court of Appeals for the Sixth Circuit today rejected a constitutional challenge to Ohio’s use of a democratic system of exclusive representative collective bargaining to set employment terms for public school teachers. Like many other states, Ohio allows units of public employees, if they choose, to elect a union representative to negotiate with the public employer about unit-wide terms and conditions of employment. In the case before the Sixth Circuit, one public school teacher – represented by the Buckeye Institute – argued that these collective bargaining systems should be invalidated as a violation of the First Amendment, even if public employees do not have to join or financially support the majority-chosen union representative. The Sixth Circuit rejected that argument as foreclosed by Supreme Court precedent, thereby reaching the same conclusion as all the other courts to consider the same issue. Altshuler Berzon LLP represented the Marietta Education Association in defending the Ohio Law. The case is Thompson v. Marietta Education Association, et al., Sixth Cir. Case No. 19-4217.

Update on Lawsuit by Georgia Governor Against Atlanta Mayor Regarding Face Covering Mandates

On August 13, 2020, Governor Brian Kemp of Georgia withdrew his lawsuit challenging the City of Atlanta’s face covering mandate.  Following the withdrawal of the lawsuit and the Governor’s issuance of an executive order expressly permitting local jurisdictions to require masks in public, the Atlanta Journal-Constitution reported that multiple cities and counties were considering the adoption of such mandates. 

Altshuler Berzon LLP represented six labor unions in filing an amicus brief in support of the City’s position last month, together with Stanford Fagan LLC, Mary Joyce Carlson, Nicole Berner (Service Employees International Union General Counsel), Robert Molofsky (Amalgamated Transit Union, International, General Counsel), and Chris Bangs (Amalgamated Transit Union, International, Associate General Counsel).

You can read more about the unions’ amicus brief here.

Workers Win Preliminary Injunction Requiring Oakland McDonald’s Restaurant to Comply with COVID-19 Health and Safety Measures

On August 13, 2020, the Alameda County Superior Court issued a preliminary injunction requiring an Oakland McDonald’s restaurant to comply with 11 COVID-19 health and safety measures.  In the lawsuit, McDonald’s workers represented by Altshuler Berzon LLP allege that the restaurant’s inadequate health and safety practices, including requiring workers to work while sick and not ensuring sufficient cleaning, personal protective equipment, or social distancing, spread COVID-19 among workers and their families and created a public nuisance. The court indicated that the defendants’ conduct and the life-or-death consequences to workers justified a preliminary injunction. The injunction continues presumptively for six months. The case is Yamilett Olimara Osoy Hernandez, et al. v. VES McDonald’s, et al., Alameda County Superior Court, Case No. RG20064825. The restaurant is located at 4514 Telegraph Avenue in Oakland, California. You can read more about the case here.

Nevada Mining Company Recognizes Union as Part of Comprehensive Settlement of National Labor Relations Board Proceedings

August 10, 2020 — As part of a comprehensive settlement of unfair labor practice charges approved today by the National Labor Relations Board, Nevada Gold Mines, LLC, a joint venture of Newmont USA Ltd. and Barrick Gold Corp., has agreed to recognize International Union Operating Engineers Local 3 and honor the 2019-2022 collective bargaining agreement between Local 3 and Newmont.  Local 3 filed unfair labor practice charges after Nevada Gold Mines withdrew recognition from the Union, which since 1965 has represented Newmont’s employees at its Nevada mines that are included in the joint venture, and unilaterally altered the former Newmont workers’ terms and conditions of work.

Region 32 of the NLRB issued a complaint on Local 3’s charges in March 2020, setting a trial before an administrative law judge that was to have commenced in September.  In addition, the full NLRB authorized Region 32 to file a petition for injunctive relief in the U.S. District Court for the District of Nevada.  The injunctive relief sought would have required Nevada Gold Mines to recognize the Union, reinstate the collective bargaining agreement, and rescind its unilateral changes to covered employees’ terms and conditions of work at the Union’s request.  The Union appeared in the federal court proceedings as amicus curiae, and has worked closely with the NLRB’s attorneys in preparing the unfair labor practice case for trial. 

Shortly before a scheduled hearing on the NLRB’s injunction petition, Nevada Gold Mines agreed to settle all litigation.  Under the terms of the settlement approved today, Nevada Gold Mines will recognize the Union; comply with the terms of the 2019-2022 collective bargaining agreement; rescind unilateral changes to employees’ working conditions at the Union’s request; and reinstate and make whole a defined benefit pension plan that the company had terminated.

Altshuler Berzon LLP represented the Union in this litigation.

Unions File Amicus Brief in Support of Atlanta Mayor’s Executive Order Requiring Face Coverings

On July 27, 2020, six labor unions—Southern Region Workers United; Service Employees International Union; Amalgamated Transit Union Local 732; Bakery, Confectionery, Tobacco Workers and Grain Millers’ International Union Local 42; International Brotherhood of Teamsters Local 528; and Communications Workers of America Local 3204—filed an amicus brief in Kemp v. Bottoms, the lawsuit brought by the Governor of Georgia against the Mayor of Atlanta and Atlanta’s City Councilmembers that seeks to enjoin the Mayor’s order requiring the use of face coverings to prevent the spread of COVID-19 in Atlanta.  The unions’ brief explains how, despite the fact that the pandemic continues to rage throughout Atlanta and Georgia, union members and other essential workers have continued to risk their health and lives by going to work each day to provide critical services essential to the economy; and how the Mayor’s masking requirement is necessary to ensure that workers and their families are not needlessly exposed to the virus when they interact with customers, their co-workers, and the public.

The union amici are represented by Altshuler Berzon LLP, together with Stanford Fagan LLC, Mary Joyce Carlson, Nicole Berner (Service Employees International Union General Counsel), Robert Molofsky (Amalgamated Transit Union, International, General Counsel), and Chris Bangs (Amalgamated Transit Union, International, Associate General Counsel).

You can read the unions’ amicus brief here.

Workers File Lawsuit Alleging Racial Discrimination at Corporate-Owned McDonald’s Restaurant in Florida

On July 17, 2020, three current employees of the corporate-owned McDonald’s restaurant at 5525 Walt Loop Road in Lakeland, Florida filed a civil rights complaint in the U.S. District Court for the Middle District of Florida alleging that they were subjected to a racially hostile work environment, disparate treatment, and retaliation by McDonald’s.  Plaintiffs Monica Scott, Augusta Moody, and Faith Booker alleged, among other things, that their general manager made racist comments about Black people and subjected Black workers and customers to discriminatory treatment.  The lawsuit further alleges that the regional manager and a human resources representative notified about the discriminatory behavior failed to remedy the situation and that, after plaintiffs raised their concerns, they faced retaliation, including reduced hours.  Plaintiffs are represented by Altshuler Berzon LLP, Peter Helwig of Harris & Helwig, PA, and Mary Joyce Carlson.

Another District Court Rejects Attacks on Public Sector Unions Based on Janus v. AFSCME, Council 31 (2018)

On July 15, 2020, in Creed v. Alaska State Employees Association/AFSCME Local 52, the District of Alaska dismissed claims by two former union members who alleged that their First Amendment rights were violated when their state employer deducted union membership dues that the plaintiffs themselves had agreed to pay in exchange for union membership rights and benefits.  The court’s decision is consistent with a decision in late 2019 from a state superior court in Alaska enjoining the Governor from making unilateral radical changes to union member dues deduction practices for State employees, and adds to the list of more than 20 federal and state courts that have rejected similar claims brought against public sector unions by conservative advocacy organizations in the wake of the Supreme Court’s Janus decision in June 2018.

Altshuler Berzon LLP represented the union defendant in Creed and in many of those other cases.  The order granting the motion to dismiss can be found here.  Announcements about similar victories in other post-Janus cases can be found here, here and here.

Court Blocks Oakland McDonald’s Restaurant from Reopening Without COVID-19 Safety Measures

On June 22, 2020, the Alameda County Superior Court issued a temporary restraining order preventing an Oakland McDonald’s restaurant from reopening without compliance with COVID-19 safety precautions and approval by the Alameda County Department of Environmental Health.  In the lawsuit, McDonald’s workers represented by Altshuler Berzon LLP allege that the restaurant’s inadequate health and safety practices, including requiring workers to work while sick and not ensuring sufficient cleaning, personal protective equipment, or social distancing, spread COVID-19 among workers and their families and created a public nuisance.  The temporary restraining order is in effect until a July 2, 2020 hearing on the workers’ request for a preliminary injunction.  The case is Yamilett Olimara Osoy Hernandez, et al. v. VES McDonald’s, et al., Alameda County Superior Court, Case No. RG20064825.  The restaurant is located at 4514 Telegraph Avenue in Oakland, California.

You can read more about the case here and here.