Bredhoff & Kaiser, P.L.L.C. - Recent Developments

The firm recently has obtained the dismissal, under FRCP 12(b)(6), of two lawsuits brought by employers under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), alleging that the defendant unions violated RICO by engaging in a "pattern of racketeering activity" the purpose of which was to "extort" an agreement concerning union recognition from the employer. The two lawsuits are: Cintas Corporation, et al. v. UNITE HERE, et al., slip op., 2009 WL 604099 (S.D.N.Y. March 9, 2009); and Wackenhut Corp. v. SEIU, 593 F. Supp. 2d 1289 (S.D. Fla. 2009).

Smithfield RICO Litigation Settled on Eve of Trial

Scheduled for a six week trial beginning October 27, 2008, Smithfield Foods, Inc. and the UFCW (and other defendants) settled the case on the morning the trial was to begin. The massive litigation—which included production of millions of pages of document discovery, more than 100 depositions around the country, briefing of more than 20 substantive, discovery, and pretrial motions (many of which were argued orally before the Court), and a four day final pretrial conference—involved complex issues of first impression involving matters of labor law and the First Amendment, as well as claims of injuries and treble damages that as alleged by Smithfield would amount to nearly three billion dollars. The essential terms of the settlement were the agreement of the UFCW to end its public campaign against Smithfield, and agreement of the parties to a fair election process by which the Smithfield employees at the Tar Heel, North Carolina plant could choose whether or not to be represented by the UFCW (see NY Times story describing the settlement). In the wake of the settlement agreement, and conducted under the terms of the code of conduct negotiated as part of the settlement, the employees of the Smithfield Tar Heel plant voted on union representation over the course of two days, December 10 and 11, 2008. Once the results were tallied by NLRB officials, it was announced that a majority of the more than 4000 workers participating in the election had voted in favor of representation by the UFCW. This victory by the UFCW under the fair process mandated by the RICO case settlement has been described by the New York Times as one of the most significant union victories in years.

Seniority Integration Key to Recent Airline Mergers (January 2009)

In April 2008, Delta Air Lines and Northwest Airlines announced a merger that, when consummated, resulted in the world's largest airline. A critical part of this and other airline mergers was the integration of the two airlines' pilot seniority lists. (See recent article in the New York Times, discussing seniority integration in airline transactions.). Bredhoff & Kaiser lawyers have represented pilot groups in every recent major airline merger, including the America West/US Airways merger in 2007. In the Delta/Northwest merger, when the two pilot groups could not agree on a merged seniority list, Bredhoff & Kaiser's lawyers represented the Delta pilots in an expedited arbitration hearing consisting of 12 hearing days over the course of two months to resolve the seniority issues. On December 8, a panel of three arbitrators issued an opinion largely adopting the Delta pilots' view on how the seniority lists should be integrated. (See article in the Atlanta Journal Constitution)

Court Upholds Constitutional Challenge to Public-Safety Employee Furloughs Imposed by County (August 2009)

In a case filed on behalf of five labor organizations representing three thousand public-safety employees, including sworn police officers, sworn firefighters and paramedics, deputy sherriffs, correctional officers, and police civilians, the U.S. District Court for the District of Maryland has declared 10-days of furloughs unilaterally imposed as a cost-savings measure by Prince George's County, Maryland to be an unconstitutional impairment under the Contract Clause of the U.S. Constitution. The County had defended the unpaid furloughs as necessary because of budget shortfalls caused by the downturn in the local housing market; the unions claimed that the furloughs were neither reasonable nor necessary in light of the County's fund reserves and other economic circumstances. An appeal to the U.S. Court of Appeals for the Fourth Circuit has been filed, and the firm will be defending the trial court's judgment.

Ninth Circuit Ruling on Public Employee Free Speech Rights (October 2008)

Interpreting a recent Supreme Court decision on the extent to which the First Amendment protects public-employee speech, the Ninth Circuit reinstated the First Amendment retaliation claim of an Idaho school employee who contended that he had lost his job for bringing to the attention of top school administrators his principal's failure to follow school district policies concerning school safety and security. The court held that, under the Supreme Court's 2006 ruling in Garcetti v. Ceballos, the inquiry into whether the employee was speaking as a citizen or as an employee involved a mixed question of law and fact. Bredhoff & Kaiser represented the plaintiff on appeal. Posey v. Lake Pend Oreille School District, 546 F.3d 1121 (9th Cir. 2008).

National Symphony Orchestra Players Ratify New Agreement

The approximately 100 musicians of the National Symphony Orchestra in Washington, D.C. celebrated Labor Day by ratifying a new four-year collective bargaining agreement. Among other items, the agreement includes significant economic improvements. Bredhoff & Kaiser represented the musicians in the negotiations.

B&K Retained by International Unions to Fight Rash of Corporate RICO Lawsuits

Beginning in the fall of 2007, several corporations in the midst of organizing and/or publicity campaigns launched by major international unions began filing civil lawsuits seeking treble damages under the federal Racketeer Influenced and Corrupt Organizations ("RICO") Act (or its state cognates). These employers contend that the unions' organizing and publicity efforts - including extensive speech and petitioning activities - amount to unlawful "racketeering." (See New York Times opinion piece describing cases). B&K has been retained by several of the union defendants and is actively litigating on their behalf, including filing motions challenging the legal premises of these suits on numerous grounds -- one of which is that much of the alleged "racketeering" activity is protected by the First Amendment. The case filed by pork-producer Smithfield Foods against the United Food and Commercial Workers International Union (No. 3:07CV641, E.D. Va. (Richmond)) is scheduled for trial this October. Cases filed by the Wackenhut Corporation, a major security services contractor, against the Service Employees International Union (No. 07-81090, S.D. Fla. (West Palm Beach)) (see article from ABA Journal); Bashas’, a grocer in the Southwestern U.S., also against the United Food and Commercial Workers, (No. CV 2007-023144, Superior Court of Maricopa County, Ariz.), and Cintas, a uniform supply company, against UNITE HERE International Union and the International Brotherhood of Teamsters (No. 1:2008cv02185, S.D.N.Y.) (see related story) remain in the pretrial stages.

Florida Supreme Court Removes Proposed School Voucher Ballot Initiatives from November Ballot (September 2008)

On September 3, 2008, the Florida Supreme Court held in Ford v. Browning that two ballot initiatives which proposed constitutional amendments concerning school vouchers could not lawfully be placed on the November 2008 general election ballot. (See opinion). In this appeal, brought on behalf of the National Education Association, the Florida Education Association, and coalition partners, the firm argued that the two amendments proposed by Florida’s Taxation and Budget Reform Commission exceeded the authority of that Commission to propose amendments to Florida’s constitution. The amendments were specifically designed to undo the rulings of the Florida Supreme Court and Court of Appeal in Bush v. Holmes, 919 So. 2d 392 (Fla. 2006). (See NY Times story describing the case).

District Court Ruling on Benefit Plans Favors Union (May 2008)

B&K lawyers defended the National Education Association and its NEA Member Benefits subsidiary in Daniels-Hall v. NEA, C O7-5339RBL (W.D. Wash.), a case brought by two public school teachers claiming that the organizations violated ERISA in the selection and monitoring of mutual funds available to participants in a nationwide benefit plan established under Section 403(b) of the Internal Revenue Code. On May 23, 2008, the U.S. District Court for the Western District of Washington granted the organizations’ motion to dismiss on grounds that the court lacked subject matter jurisdiction under ERISA. The Court held that employee organizations, as a matter of law, cannot establish or maintain plans under section 403(b); only certain employers (including public schools) can establish or maintain such plans. Any plans "established or maintained" by the plaintiffs' employers would have been exempt from ERISA coverage as governmental plans.

Change to Win supports challenge of ordinance restricting employment of undocumented immigrants (April 2008)

The firm filed an amicus brief on behalf of the Change to Win labor federation in the United States Court of Appeals for the Third Circuit in Lozano v. City of Hazleton, arguing that a local ordinance adopted by a Pennsylvania city that imposed restrictions on the employment of unauthorized aliens is preempted by federal law. (See related news article from the Scranton Times-Tribune).

Sixth Circuit Rules that States and School Districts Need Not Spend Their Own Funds to Comply with No Child Left Behind (January 2008)

On January 7th the Sixth Circuit handed down its decision in the long running Pontiac v. Spellings case, in which the firm represents the NEA, nine school districts and several state and local NEA affiliates, who are challenging the position of the U.S. Department of Education that states and school districts must spend their own funds to comply with the NCLB. In its ruling, the Sixth Circuit agreed with the plaintiffs that the NCLB cannot be construed to require states and school districts to spend their own funds on NCLB compliance and remanded the case to the trial court for further proceedings.

UNITE HERE Local 25, Mid-Atlantic Joint Board Settlement with D.C. Hotels Achieves Substantial Gains for Members, Opens Way for Future Growth (September 2007)

On September 7, 2007, members of Local 25 voted overwhelmingly to ratify a three-year agreement with the city’s major hotels. Highlights of the agreement include a 12% increase in wages over the term, a 50% increase in the pension contribution, maintenance of fully-employer paid single and family health coverage, increases in short and long-term disability benefits, meaningful limitations on housekeeper workload (geared at reducing the risk of injuries, which has grown in this occupation in recent years), and job protection for members during lengthy hotel renovations. In addition, through the addition of neutrality and card-check language, the agreement provides an avenue for the Union to grow along with the industry. (See story in Washington Business Journal). Bredhoff & Kaiser advised Local 25 in connection with the negotiations.

Important Agency Fee Cases in First and Second Circuits (July/August 2007)

On two fronts, Bredhoff & Kaiser, P.L.L.C. attorneys recently turned back “right to work” efforts to make it more difficult for unions to collect agency fees from nonmembers whom they represent in collective bargaining. In the First Circuit, firm attorneys won an important decision in Locke v. Karass, 498 F.3d 49 (1st Cir. 2007), decided in August 2007. In that case, the court rejected efforts to create a litigation exception to the Supreme Court’s ruling that state and national unions may calculate their agency fees by pooling expenditures made on behalf of the various bargaining units they represent. Several weeks earlier, in a matter now on appeal to the Second Circuit, a district court decision adopted the firm’s contention that union expenditures for organizing nonunion bargaining units were “chargeable” to agency fee objectors. The court earlier had declined to certify the case of Scheffer v. Civil Service Employees Association (W.D.N.Y.) as a class action, holding that attorneys employed by the National Right to Work Foundation were not adequate representatives of a class of public employees, in light of the Foundation’s stated objective of holding down public-employee wages by combating unionization in the public sector.

Bankruptcy Court Approves Dana Corp. Labor Agreements (July 2007)

In late July 2007 the U.S. Bankruptcy Court for the Southern District of New York approved newly negotiated labor agreements between bankrupt auto parts manufacturer Dana Corporation and the unions that represent its hourly employees. The innovative agreements provided for union-administered Voluntary Employee Benefit Associations to provide retiree health benefits, union-brokered new investment in the company by a private equity firm, and the employer’s commitment to maintaining domestic manufacturing and employment. Bredhoff & Kaiser, P.L.L.C. represented the United Steelworkers of America in the bankruptcy litigation.

Supreme Court Decides Davenport Case (June 2007)

On June 14, 2007, the Supreme Court issued its ruling in Davenport v. Washington Education Association, 127 S. Ct. 2372 (2007), reversing the Washington Supreme Court’s holding striking down a state campaign finance law that restricted unions’ use of funds derived from agency shop fees. Notwithstanding the petitioners’ 9-0 win in the High Court, the big losers appeared to be the “right to work” organizations, which had hoped the Court would use the case to roll back 50 years of agency fee jurisprudence and did not hide their disappointment at the Court’s clear reaffirmation of existing law. Bredhoff & Kaiser, P.L.L.C. represented the Washington Education Association before the Supreme Court.

Utah Supreme Court Ruling Paves Way for Referendum Overturning Voucher Legislation (June 2007)

In a referendum on November 6, 2007, Utah voters decisively rejected a statewide private-school voucher program that the state’s Legislature had enacted by a one-vote margin earlier in the year. That result was made possible by a ruling of the Utah Supreme Court in June, which foiled an attempt of voucher proponents to render the referendum meaningless by interpreting a subsequent minor amendatory bill as having reenacted the voucher program in a form not subject to referendum. Following a two-week briefing and argument schedule, the Utah Supreme Court rejected that interpretation, via a rare ruling from the bench, in litigation brought on behalf of the referendum sponsors by attorneys from Bredhoff & Kaiser, P.L.L.C. Snow v. Office of Legislative Research, 167 P.3d 1051 (Utah 2007).

D.C. Fire Fighters, Local 36, IAFF, Obtain TRO in Superior Court Prohibiting Mayor, Fire Chief from Implementing Unlawful Disciplinary Action (May 2007)

Finding that the Mayor and Fire Chief of the District of Columbia had acted “in clear contravention of their own regulations,” District of Columbia Superior Court Judge Robert Tignor issued a temporary restraining order on May 7, 2007 forbidding the city government from imposing penalties against two firefighters that were over and above the disciplinary action recommended by the Fire Department’s own internal hearing panel. (See stories from WUSA-Channel 9 News, and the Washington Examiner.) The firefighters were two of five members facing internal charges in the wake of a highly-publicized report by D.C.’s inspector general that found fault with the Fire Department’s assessment and treatment of retired New York Times reporter David Rosenbaum in response to a 911 call. Three of the five men were exonerated by the internal panel, which, in the course of a two-week hearing, received extensive testimony from the inspector general’s investigators, the medical examiner, and police officers and neighbors on the scene. Bredhoff & Kaiser represented Local 36 and the two individual firefighters in connection with the TRO action, and also represented four out of the five members in the internal disciplinary proceedings.

Supreme Court ruling on pension plan terminations (2007)

In Beck v. PACE the firm represented the United Steelworkers in briefing and argument in the United States Supreme Court on issues regarding an employer's responsibility in termination of a single-employer pension plan. The Court ruled on June 11, 2007 (Docket No. 05-1448), that although all the assets and liabilities of such a plan can be transferred to a multiemployer pension plan, such a transfer cannot be considered a means of terminating the single-employer plan under Title IV of ERISA.

Maryland Appellate Court Upholds Arbitration Award Preserving Rank-Order Promotion Rights of Police Officers (January 2007)

The firm, as labor counsel to Prince George’s County FOP Lodge 89, successfully defended the right of police officers in the County to rank-order promotions. Having prevailed in arbitration on a challenge to the Police Department’s claim of a right to select candidates out of rank order, the firm rebuffed the County’s challenge to the award in the Maryland Court of Special Appeals, which issued a decision strongly upholding the bargaining and arbitration rights of County workers.

Argument in Lawsuit filed to enforce No Child Left Behind Act unfunded mandates (November 2006)

The nation’s first lawsuit seeking to enforce the unfunded mandates provision of the No Child Left Behind Act was filed by Bredhoff & Kaiser P.L.L.C., in April of 2005 on behalf of a broad coalition including the NEA, nine of the NEA’s state affiliates, a local NEA affiliate, and nine school districts from Michigan, Texas and Vermont. The suit is now pending before the Sixth Circuit Court of Appeals, which heard argument on the matter on November 28, 2006. Seven states as well as the District of Columbia have filed an amicus brief in support of the plaintiffs in the case. The case also has been the focus of extensive media coverage including front page stories in The New York Times and USA Today. For more information click here.

"Paycheck Protection" statutes struck down in Idaho and Utah (2006)

In cases brought by the firm, district courts in Idaho and Utah struck down provisions of those states' laws that prohibit local government employers from allowing their employees to make political contributions through payroll deduction. The rulings are currently on appeal in the Ninth and Tenth Circuits.

Amicus Brief filed in Supreme Court defending academic freedom (2006)

The Supreme Court ruled in Garetti v. Ceballis that the First Amendment generally does not protect a government employee from discipline based on speech made pursuant to the employee's official duties; but the Court reserved the question whether a different analysis should apply to cases involving speech related to scholarship or teaching. Bredhoff & Kaiser, PLLC, filed an amicus brief on behalf of the NEA arguing that a teacher's classroom speech is entitled to First Amendment protection.

Florida Supreme Court strikes down state educational voucher program (February 2006)

Bredhoff & Kaiser, P.L.L.C. represents the National Education Association and its affiliates in a series of challenges, in state and federal courts, to the constitutionality of private-school voucher programs enacted by various state legislatures. Attorneys from the firm have argued these cases in the United States Supreme Court, Zelman v. Simmons-Harris, 536 U.S. 639 (2002), and in the Supreme Courts of at least six states. Most recently, the firm represented the Florida Education Association and its coalition partners before the Florida Supreme Court, which in January 2006 struck down Florida’s “Opportunity Scholarship Program” as contrary to the public education clause of the Florida Constitution. Bush v. Holmes, 919 So. 2d 392 (Fla. Jan. 5, 2006).

Jury verdict returned in favor of Plaintiffs in Section 1983 litigation (September 2005)

A District of Columbia jury has returned a $997,160 verdict against Re-Direct (which provided half-way house services to the D.C. government) after finding that its negligence resulted in the death of Kenneth Muldrow, a minor child in Re-Direct’s care who was represented by the firm. Muldrow v. Re-Direct, Case No. 01cv2537 (D.D.C.). The case is similar to Smith v. D.C., Case No. 00-894 (D.D.C. 2004), aff’d, 413 F.3d 86 (D.C. Cir. 2005), in which Bredhoff & Kaiser, P.L.L.C. secured a verdict against the District of Columbia for its role in the death of Tron Lindsey, another child who died while in a halfway house run by a city contractor.

Guidance issued regarding No Child Left Behind program (September 2005)

In conjunction with NEA’s Office of General Counsel, the firm has issued lengthy guidance regarding the implementation of the qualification requirements in the No Child Left Behind Act (“NCLB”) for teachers and educational support personnel. The guidance is the latest in a series of documents the firm has prepared in conjunction with the NEA regarding the implementation of the NCLB Act. For more information about the firm’s education law practice click here.

Unions and individual officers and employees seek advice on DOL reporting requirements (Summer/Fall 2005)

Various international unions and scores of individual officers and employees have retained the firm for advice made necessary by the U.S. Department of Labor’s recent decision to require the filing of extensive financial disclosure reports. The firm also prepared comments on behalf of the AFL-CIO regarding the Department of Labor’s proposal to issue rules regarding the fiduciary obligations of union representatives. For more information about the firm’s work relating to the regulation and internal affairs of unions, click here.

Amicus brief filed on behalf of entertainment unions in landmarkSupreme Court file-sharing case (June 2005)

The U.S. Supreme Court ruled in Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913(2005), that distributors of peer to peer file-sharing computer software (e.g., distributors of Grokster, Morpheus and KaZaA) can be held liable for the resulting copyright infringement. Bredhoff & Kaiser, P.L.L.C. filed an amicus brief in support of that result, on behalf of the American Federation of Musicians, the American Federation of Radio & Television Artists, the Directors Guild of America, the Screen Actors’ Guild and the Writers’ Guild of America West.

D.C. Circuit strikes down DOL’s proposed financial reporting requirements for union-related trusts (May 2005)

The U.S. Court of Appeals for the District of Columbia Circuit invalidated the U.S. Department of Labor’s new Form T-1 reporting requirement for certain trusts, concluding that DOL lacks the authority to impose the reporting requirement. AFL-CIO v. Chao, 409 F.3d 377 (D.C. Cir. 2005). The firm represented the AFL-CIO in the case. Previously, the firm had prepared extensive comments for submission to the DOL regarding both the T-1 requirements and the Department’s proposed revisions to the LM-2 financial reporting requirements.

Amicus brief filed in Supreme Court supporting broad interpretation of Title IX's anti-retaliation provision (March 2005)

The U.S. Supreme Court holds in Jackson v. Birmingham Board of Education, 125 S. Ct. 1497 (2005) that Title IX of the Education Amendments of 1972 protects individuals from retaliation for complaining about unlawful sex discrimination in education. The petitioner in the case, Coach Jackson, alleged that he was retaliated against when he complained that the girl’s basketball team was provided with far fewer resources then the boy’s team. Bredhoff & Kaiser, P.L.L.C. represented a group of amici in the case, led by the National Education Association, whose brief pointed out that educators must be protected from retaliation to ensure that Title IX violations are reported and that the prohibitions against sex discrimination and harassment in education will be properly enforced.

City-wide negotiations conclude between DC-area hotels and UNITE HERE Local 25 (January 2005)

Just in advance of an Inauguration Day strike deadline, lengthy negotiations resulted in a new city-wide contract between the Washington, DC hotel workers union (UNITE HERE Local 25) and the city’s largest hotels. The Union achieved substantial gains for Washington’s hotel workers – including significant wage increases, preservation of fully employer-paid health coverage, and ground-breaking contract language in the areas of immigrant rights, workload protection and effective union representation. Bredhoff & Kaiser P.L.L.C., longstanding counsel to Local 25, advised the union throughout the negotiations.

Jury verdict favors class of 800 retired rubber workers (August 2004)

A jury verdict was returned on behalf of a class of 800 retired members of the United Rubber Workers Union and their spouses and beneficiaries. The case concerned the retirees’ effort to force Dayco Products to honor the company’s commitment to pay lifetime retiree health benefits. The jury found that the health benefits were vested in retirement and could not be changed unilaterally by Dayco. The U.S. Court of Appeals for the Fourth Circuit affirmed in April 2006.

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