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.

Oakland McDonald’s Workers Sue after More than a Dozen COVID-19 Cases

Represented by Altshuler Berzon LLP, four McDonald’s workers and one worker’s minor child filed a lawsuit today in Alameda County Superior Court seeking injunctive and other relief against the owners and management of an Oakland McDonald’s restaurant, alleging that inadequate health and safety precautions have led to a major COVID-19 outbreak among workers, their families, and the community.

As outlined in the Complaint, the lawsuit alleges that the management and ownership of the restaurant, located at 4514 Telegraph Avenue, discouraged workers and managers who were sick with COVID-19 symptoms from taking sick leave and otherwise failed to ensure safe working conditions, including by not requiring adequate cleaning, PPE, or social distancing.  The lawsuit also alleges that after some workers tested positive, the restaurant failed to inform co-workers promptly of their exposure or of the need to self-quarantine.  At least 11 workers from the restaurant, plus 6 members of their families, have contracted COVID-19 since mid-May.  And an additional 7 workers at a Berkeley McDonald’s restaurant, whose workforce overlaps with the Oakland location, have now also contracted COVID-19.

The lawsuit alleges that the defendants’ grossly inadequate response to this Coronavirus outbreak constitutes a public nuisance.  Plaintiffs also bring claims under the Unfair Competition Law, Oakland’s Emergency Paid Sick Leave Ordinance, and Oakland’s Paid Sick Leave Ordinance.

The plaintiffs are asking the court to issue a temporary restraining order (TRO) that would require the owners and managers of the 4514 Telegraph Avenue restaurant to take measures necessary to prevent the further spread of COVID-19 before the restaurant (which is presently closed) is allowed to reopen.

Arbitrator Rules for Union in Shift Differential Dispute

Employees of a defense contractor at Beale Air Force Base who work the afternoon and midnight shifts will receive shift differential premium pay for all hours, including their paid time off, as a result of an arbitration decision issued May 22, 2020.  Labor arbitrator John Caraway ruled for workers employed by InDyne Corp. who are represented by IBEW Local 340, finding that the union and the employer agreed in negotiations for their last collective bargaining agreement to extend shift differential pay to paid time off as well as hours worked.  

Altshuler Berzon LLP represented Local 340 in the arbitration.

Altshuler Berzon LLP Wins Major Procedural Victories in Climate Change Cases

Judgment for Oil and Gas Company Defendants Reversed: No Basis for Federal Jurisdiction

In two sets of consolidated cases decided May 26, 2020, a Ninth Circuit panel held that California cities and counties represented by Altshuler Berzon LLP and Sher Edling LLP may continue to prosecute claims against several of the world’s largest privately owned oil and gas companies, including Chevron, Exxon Mobil, BP, and Royal Dutch Shell, for harms to public infrastructure resulting from climate-change-related global warming.

Press accounts may be found here and here.

In the first set of cases, brought by the City of Oakland and the City and County of San Francisco (and argued by Altshuler Berzon LLP partner Michael Rubin), the Ninth Circuit reversed the district court’s judgment against five oil and gas company defendants. Those cases had been removed from state court on seven jurisdictional grounds. The district court denied remand after concluding that although the cases were brought under California’s representative public nuisance law (Cal. Civil Code §3480, et seq.), they actually “arose under” federal common law for purposes of federal subject matter jurisdiction. The district court thus asserted subject matter jurisdiction, but it later dismissed the cases on the ground that the Clean Air Act “displaced” the applicable federal common law, leaving Oakland and San Francisco without any cause of action they could pursue in federal court.

The unanimous Ninth Circuit panel (Ikuta, J., with Christen and Lee, JJ.) reversed, holding that the district court erred in finding “arising under” jurisdiction because the state law tort claims pleaded by Oakland and San Francisco did not trigger application of the federal common law governing trans-boundary air pollution and because the Clean Air Act did not “completely preempt” state public nuisance law. The panel did not reach any of the other issues in the case but remanded the case to the district court to determine whether any remaining grounds for subject matter jurisdiction precluded remand.

The second set of cases, brought by the County of San Mateo and five other public entities against more than two dozen oil and gas company defendants, raised similar California state law tort claims. In those cases, the Ninth Circuit panel affirmed a different district court’s order remanding the cases to the state courts in which they had been filed. Construing the federal removal statute, 28 U.S.C. §1447(d), as prohibiting appellate review of any remand order except to the extent federal-officer jurisdiction or Civil Rights Act jurisdiction was an asserted basis for removal, the Ninth Circuit panel held that because the oil and gas company defendants failed to establish federal-officer jurisdiction (and did not allege Civil Rights Act jurisdiction), the cases must be remanded to state court without regard to any of the non-reviewable jurisdiction grounds alleged by those defendants.

Several Altshuler Berzon LLP attorneys worked on these cases, including B.J. Chisholm, Corinne Johnson, and Michael Rubin.

The cases are City of Oakland et al. v. BP PLC et al., __ F.3d __, 2020 WL 2703701 ( 9th Cir. May 26, 2020), and County of San Mateo et al. v. Chevron Corp. et al., __ F.3d __, 2020 WL 2703701 (9th Cir. May 26, 2020).

Court Approves Settlement for Delta’s California Ground Workers

On Thursday May 21, 2020, Judge Stephen Wilson of the U.S. District Court for the Central District of California granted final approval to the $ 3.5 million settlement in the Fan v Delta Airlines, Inc. wage and hour class action. The case arose out of Delta’s calculation of overtime for its non-exempt ground employees ( e.g., ticket counter personnel, gate personnel, and baggage handlers) in California since July 1, 2017. The suit, filed in March 2019, alleged that Delta should have included the following in the calculation of overtime: (a) profit sharing payments from a plan that did not appear to meet the requirements for an exemption; (b) imputed income from travel benefits; and (c) premium pay for missed meal and rest breaks. The plaintiffs also alleged that Delta’s calculation of their non-discretionary bonus should have been based on the time period when the bonus was earned, not on the later period when it was paid, and that Delta’s calculation of their premium pay improperly included vacation and holidays in the denominator.

The claims administrator will send checks to class members on June 11, 2020.

Court Prevents Trump Administration from Eliminating Important Fish Protections During May 2020

On May 11, 2020, the United States District Court for the Eastern District of California granted in part a preliminary injunction requested by fishing and environmental groups represented by Altshuler Berzon LLP in PCFFA v. Ross, E.D. Cal. Case No. 1:20-cv-00431-DAD-EPG.  

The Court ruled that the Trump administration’s new water project operations in California’s Delta, which include the elimination of an important protection for fish species, would cause irreparable harm to threatened Central Valley steelhead.  Specifically, the Court analyzed a measure called the San Joaquin River Inflow to Export ratio, which had been in place since 2009 but was eliminated by the Trump administration in 2019, and which had limited pumping and water exports out of the Delta in April and May, a time when juvenile salmon and steelhead migrate through the Delta and out to the Pacific Ocean.  Based on expert testimony and record evidence presented by plaintiffs, the Court determined that operating without this protective measure for the remainder of May 2020 would cause irreparable harm to the threatened steelhead population.

Having found that plaintiffs had established irreparable harm and serious questions on the merits of their claims, the Court ordered the Bureau of Reclamation to comply with the previously required Inflow to Export ratio protective measure for the remainder of May.

District Court Rejects Former Union Member’s Attempt to Rely on Janus to Claw Back Membership Dues

On May 8, 2020, the United States District Court for the Middle District of Pennsylvania in Molina v. SEIU Local 668 granted summary judgment in favor of the defendants on all remaining claims in the lawsuit, concluding that the Supreme Court’s decision in Janus v. AFSCME, Council 31, 138 S.Ct. 2448 (2018), does not apply to the relationship between a public employee union and its members.

The plaintiff in Molina contended that Janus entitled him to a refund of the union membership dues that he paid to SEIU Local 668 before resigning from the union, and that the union and the plaintiff’s former employer, defendant Lehigh County, had violated his due process rights by failing to establish adequate procedures for objecting to union membership.  The district court, however, held that the First Amendment principles set forth in Janus apply to individuals who are not union members, not voluntary union members like the plaintiff, and recognized that the plaintiff’s union membership agreement constituted a valid and enforceable contract between the union and the plaintiff.  The district court separately held that the plaintiff’s payment of union membership dues via payroll deduction did not involve the “state action” necessary to establish a federal civil rights claim, and that the plaintiff’s due process claim lacked merit.  In a prior July 2019 order, the district court had concluded that the plaintiff lacked standing to pursue his claims for prospective relief, and that his claim for a refund of money paid to the union after his resignation was moot.

Altshuler Berzon LLP represented union defendant SEIU Local 668 in the lawsuit.