DCB welcomes Sarah Grossman-Swenson to its San Francisco office. A recent graduate of the University of California at Berkeley, Boalt Hall School of Law, Sarah was co-editor-in-chief of the Berkeley Journal of Employment and Labor Law.

A California court granted the Monterey/Santa Cruz Counties Building & Construction Trades Council summary judgment on its claims that workers redeveloping the former Fort Ord on the Monterey Peninsula must be paid at prevailing wage rates. The judge’s ruling covers some $800 million in current and proposed commercial and residential construction work on the former military base. Monterey/Santa Cruz Building & Construction Trades Council et al. v. Marina Community Partners et al., No. M81343 (Cal. Sup. Ct. 2008).

DCB represented the Trades Council in all phases of the litigation.

The District of Columbia Court of Appeals affirmed a jury verdict in favor of Alexandra Cerpe in her lawsuit for sexual harassment and retaliatory discharge against the Fred A. Smith Management Company. Fred A. Smith Management Co. v. Cerpe, 957 A.2d 907 (D.C. 2008) The Court of Appeals also upheld the jury’s award of compensatory and punitive damages.

The appeal was litigated by DCB and Murphy Anderson PLLC.

The Arizona Supreme Court upheld the Arizona Homeowners’ Bill of Rights initiative petition over constitutional and statutory challenges, clearing the way for the initiative to appear on the November 2008 ballot. Wilhelm v. Brewer, 219 Ariz. 45, 192 P.3d 404 (Ariz. 2008). The Homeowners Bill of Rights contains innovative consumer protections, including a mandatory ten-year warranty on new homes and a homeowner right to select the contractor to make defect repairs, a requirement that sellers disclose their relationships with financial institutions, and an obligation that model homes accurately reflect what is for sale.

DCB represented the Homeowners’ Bill of Rights Committee, a coalition of labor and community groups, in developing and defending the initiative.

In Parra v. Bashas’, Inc., 536 F.3d 975 (9th Cir. 2008), the Ninth Circuit Court of Appeals reversed a district court ruling and held that current and former Hispanic workers at Bashas’ grocery stores had established commonality in their class action claims that Bashas’ engaged in pay discrimination in violation of Title VII. The Court of Appeals held that the plaintiffs had presented “extensive evidence showing Bashas’, Inc.’s discriminatory pay practices commonly affected all members of the proposed class.”

The class is represented by DCB and the Impact Fund.

DCB attorneys this month won two decisions from California courts of appeal: in Plumbers Local 290 v. Rea, the court agreed with the union’s interpretation of state prevailing wage laws as covering construction on common areas of a privately-owned office building where a public agency was leasing most of the building’s office space. The court rejected the contrary view of the State Department of Industrial Relations. The court also awarded the union its attorneys’ fees under the private attorney general doctrine.

In Rubalcava v. City of Los Angeles and UNITE HERE Local 11, the appellate court reversed a trial court’s invalidation of a new ordinance setting a living wage requirement for hotels near LAX airport. The trial court had relied on the fact that an earlier ordinance also setting such a requirement had been rescinded in response to a referendum petition containing the necessary number of signatures to put the issue on the ballot. The appellate court held the differences between the new and old ordinances were significant enough that the constitutional right to referendum had not been violated by the City. (The City added assistance to the airport zone and promised not to regulate wages in other zones without first finding those zones met certain criteria).

Employees at eight LAX-area hotels – the Four Points, Marriott, Renaissance, Embassy Suites, Courtyard, Westin, Hilton and Radisson – filed class action lawsuits in Los Angeles Superior Court. The complaints, filed September 5, 2007, charge the hotels with violating a recently enacted city law requiring LAX area hotels to pay to their employees all tips and services fees collected on their behalf. Despite the law, the hotels have continued to pocket the fees that they are collecting on behalf of their employees.

For more information about the class action lawsuits, go to www.servicechargesforhotelworkers.com.

UNITE HERE Local 57 was today certified as the collective bargaining representative of the workers at the Pittsburgh Renaissance Hotel. The certification was based on a check of authorization cards revealing that a majority of the workers want UNITE HERE to represent them.

This certification comes after a long struggle by the workers and the union. The hotel and the union signed an organizing agreement in 2001 that provided, among other things, that the employer would remain neutral with respect to its workers’ decision whether to join a union and that it would respect that choice by means of a card check. After receiving benefits under the agreement, the hotel announced it was reneging on its own promises to its workers and declared the agreement void. The union sued to enforce the agreement in federal court in Pittsburgh, where it prevailed, and the hotel appealed.

The U.S. Court of Appeals for the Third Circuit affirmed the union’s position. Its landmark published opinion, written by then-Judge Michael Chertoff, rejected the hotel’s arguments, including ones that had been advanced by opponents of card check/neutrality agreements—and even a member of the National Labor Relations Board. First, the court held that federal labor law did not preempt the city’s labor-peace ordinance, which sought to protect the city’s investment in particular hospitality projects by requiring the project owner to get a labor-peace guaranty. Second, the court rejected the argument that Section 302 of the Taft Hartley Act renders unlawful agreements between employers and unions to set guidelines for employee organizing, including neutrality and card-check recognition. The Supreme Court denied the hotel’s request for additional review. Hotel Employees and Restaurant Employees, Local 57 v. Sage Hospitality Resources, LCC, 390 F.3d 206 (3rd Cir. 2004), certiorari den. 544 U.S. 1010, 125 S.Ct. 1944, 161 L.Ed.2d 792, 177 L.R.R.M. (BNA) 2192 (2005).

The U.S. Court of Appeals for the D.C. Circuit today denied enforcement to an NLRB order against union protest. Sheet Metal Workers Local 15 v. NLRB (Brandon Regional Medical Center), 491 F.3d 429 (D.C. Cir. 2007). This breakthrough decision holds that unions enjoy the same First Amendment rights as other protestors, even when they protest “secondary” entities who do business with employers in a labor dispute.

The case involved a mock funeral conducted by five members of the Sheet Metal Workers outside a Tampa-area hospital. The hospital used non-union contractors on its construction of a new hospital wing. The Union saw this policy as part of a “culture of corporate greed that also affects patient care.” Its mock funeral criticized the Hospital’s patient care record. The funeral was peaceful, orderly, and non-threatening.

The NLRB nevertheless proceeded against the funeral as an unlawful secondary boycott. The NLRB convinced the 11th Circuit to affirm an interim injunction on this ground. On review of the final NLRB order, however, the D.C. Circuit held that the mock funeral enjoyed First Amendment protection as much as if it had been conducted by an anti-abortion group or environmentalist group.

Read how management-side law firms from Indiana to Baltimore are describing this decision.

The D.C. Circuit also rejected the NLRB’s rule that unions must give construction site owners advance assurance that their picketing will honor reserved gates.

UPDATE: Read the article in Slate decribing the decision.

DCB welcomes summer clerk Joey Hipolito to the San Francisco office. Joey completed his first year at the University of California, Berkeley School of Law (Boalt Hall). Prior to law school, Joey worked for many years as a researcher for the United Food and Commercial Workers in Washington.

In addition, DCB welcomes Jill Cartwright as the Washington office law clerk. She is a 3L at American University, Washington College of Law. Prior to law school Jill worked for Emily’s List and the Democratic Congressional Campaign Committee, and also worked with UNITE HERE Local 11 in Los Angeles organizing hotel workers. She recently published an article, Why Fight Fought: A Missed ERISA Opportunity in the Ninth Circuit, 37 Golden Gate U. L. Rev. 567 (2007).