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| 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.
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| B&K has been retained in two cases set for oral argument early in the Court's October 2008 Term. In the first of these, Locke v. Karass, No. 07-610, set for argument on October 6, the firm represents the Maine State Employees Association in arguing for affirmance of the First Circuit's opinion that "litigation [that] is substantively related to the bargaining process and is funded through a pooling arrangement" is properly chargeable to non-members." In the second, Ysursa v. Pocatello Education Association, No. 07-869, set for argument on November 3, the firm represents the Pocatello Education Association and affiliated unions, including the Idaho AFL-CIO, in arguing to uphold the Ninth Circuit's opinion striking down as unduly restrictive of First Amendment rights a state statute that barred local governments from making payroll deductions authorized by employees for political activities, including PAC contributions.
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| 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.
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| On September 8, 2008, the Florida Supreme Court will hear argument in Ford v. Browning, an appeal brought on behalf of the National Education Association, the Florida Education Association, and coalition partners. In the proceeding – which has been deemed by the Florida Courts a case of “great public importance” – the plaintiffs, represented by Bredhoff & Kaiser, seek to enjoin the placement of two proposed constitutional amendments concerning school vouchers from placement on the November 2008 general election ballot. The amendments, proposed by Florida’s Taxation and Budget Reform Commission, attempt to undo the rulings of the Florida Supreme Court and Court of Appeal in Bush v. Holmes, 919 So. 2d 392 (Fla. 2006). In that case, the firm successfully argued that Florida’s school voucher program was unconstitutional under the state constitution. (See Miami Herald story describing proposed amendments.)
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| 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.
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| The firm represents the United Auto Workers in court proceedings to ensure the preservation of the retiree health benefits of 500,000 GM retirees, spouses and other beneficiaries, more than 200,000 Ford retirees, spouses and other beneficiaries, and approximately 125,000 Chrysler retirees, spouses and other beneficiaries. The UAW negotiated settlements with GM and Ford in 2005-06 that preserve the rights to those retiree benefits with modest modifications, despite the automakers' financial difficulties, and a second round of settlements with all three automakers in 2007 that will establish the largest health trust ("VEBA") in U.S. history, to fund the health benefits for these retirees and dependents for life. The U.S. District Court for the Eastern District of Michigan approved both of the 2005-06 settlements, and the U.S. Court of Appeals for the Sixth Circuit affirmed those judgments in August 2007. The District Court approved the second GM settlement and the Chrysler settlement July 31, 2008, and the motion to approve the second Ford settlement is pending. |
| In April, 2008, Delta Air Lines and Northwest Airlines announced a merger which, when consummated, will result in the world's largest airline. A critical part of this and other airline mergers is the integration of the two airlines' pilot seniority lists. Bredhoff & Kaiser lawyers have represented pilot groups in every recent major airline mergers, including the America West/US Airways deal. In that merger, the firm represented the America West pilots who prevailed in a hotly contested seniority integration proceeding. The firm's lawyers currently represent the Delta pilots. Absent a negotiated solution, that dispute will proceed to a binding arbitration in October and November of 2008. (See recent article in the New York Times, discussing seniority integration in airline transactions.) In a vote counted on August 11, 2008, Delta and Northwest pilots overwhelmingly ratified a collective bargaining agreement that will become effective after approval of the merger. This is the first time in industry history that a union has accepted a contract before a merger was consummated, and before seniority integration is resolved. (See article from the New York Times.) |
| 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). |
| 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. |
| 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. |
| 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. |
| 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. |
| 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. |
| 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). |
| 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. |
| 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. |
| 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. |
| 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. |
| 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. |
| 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). |
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| 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. |
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| 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. |
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| 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. |
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| 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. |
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| 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. |
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| 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. |
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| 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. |
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| 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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