U.S. Supreme Court Rules President Obama Invalidly Appointed National Labor Relations Board Members

On June 26, 2014, the U.S. Supreme Court decided NLRB v. Noel Canning. The Court set aside a National Labor Relations Board ("Board") order because the Board lacked a quorum when it issued the order. The Court ruled the Board lacked a quorum because President Obama invalidly appointed three of the five Board members. This decision may impact other cases decided by the unlawfully appointed Board members.

The case began as a labor dispute between a labor union and Pepsi-Cola distributor Noel Canning. The Board ruled the distributor unlawfully refused to execute a collective-bargaining agreement with the labor union. The Board ordered the distributor to execute the agreement and compensate employees for any losses. The distributor challenged the Board's order, arguing the Board could not take legal action because the President invalidly appointed three of the five Board members. Three lawfully appointed Board members are required for the Board to take any action.

President Obama appointed the three Board members on January 4, 2012 during a three-day Senate recess. Interpreting the Constitution's Recess Appointments Clause, the Court held a three-day recess is too short to trigger the President's recess-appointment power. Since the President invalidly appointed three of the five Board members, the Board lacked a quorum when it ordered the distributor to execute the collective-bargaining agreement and compensate employees for any losses.

This ruling may have far-reaching consequences. Many cases decided by the invalidly appointed Board members could be affected. The Board Chairman, Mark Gaston Pearce, stated the Board now has a quorum of validly appointed Board members and the agency is analyzing the impact of the Court's decision on other cases.

Court of Appeal Blocks Criminal's Attempt to Bypass Pitchess

In People v. Davis (Cal. Ct. App., June 12, 2014) 14 Cal. Daily Op. Serv. 6496, an appeals court held a convicted criminal could not bypass the Pitchess process on appeal.  The defendant attempted to get access to a peace officer's personnel file to try to claim the court made a mistake when it did not grant a Pitchess motion before trial.  The court decided he did not have a right to independent appellate review concerning a post-judgment Brady order. 

Instead, the court decided even in cases where a defendant can get discovery after a trial, he must comply with the Pitchess v. Superior Court, procedure and requirements.  The requirements include showing that the discovery sought is material to pending litigation.

US Supreme Court: Public Employee Testimony Protected By First Amendment

On June 19, 2014, in Lane v. Franks, the U.S. Supreme Court ruled an employee’s testimony was protected by the First Amendment because it was a citizen’s speech on a matter of public concern.

Edward Lane directed a program for underprivileged youth at Central Alabama Community College. Lane audited the program’s expenses and found an employee, Suzanne Schmitz, had not been reporting for work. Lane terminated Schmitz’ employment and testified against her in federal court. Schmitz was sentenced to 30 months on charges of mail fraud and theft.

After the trial, the college’s president, Franks, fired 29 employees, including Lane. Franks claimed the action was an attempt to fix the college’s budget. He then rehired all but two of the employees. Franks did not rehire Lane.

In response, Lane filed a civil rights lawsuit. Lane claimed Franks violated the First Amendment by firing him in retaliation for testifying against Schmitz. If a public employee speaks in the course of their ordinary duties, the employee is not speaking as a citizen for First Amendment purposes. But in this case, the U.S. Supreme Court unanimously ruled Lane’s sworn testimony was outside the scope of his normal duties and entitled to First Amendment protection.

The Court also ruled the testimony was on a matter of public concern.  If a public employee speaks on a matter of public concern, the government must have adequate justification for treating the employee differently. Whether speech is a matter of public concern turns on the content, form, and context of the speech.

Here, the Court held corruption in a public program and misuse of state funds are matters of significant public concern. Speech by public employees related to their employment holds special value because those employees gain knowledge of matters of public concern through their employment.

Because the Court ruled the testimony was a public concern, it then decided if the college lacked adequate justification for firing Lane. The college did not assert or demonstrate any government interest for their treatment of Lane. Therefore, the Court reversed and remanded for further proceedings.

PERB Rules County Rushed to Declare Impasse

In SEIU Local 721 v. County of Riverside, the Public Employment Relations Board ("PERB") took a hard line against employers that rush to declare impasse.

SEIU and Riverside County started negotiations over a new MOU in late March 2009.  The existing MOU was set to expire on June 30, 2009.  The County sought significant economic concessions.  On June 22, the County presented SEIU with a complete proposed MOU. 

SEIU responded with various counteroffers.  However, the County abruptly ended negotiations and declared impasse.  The County provided several reasons for declaring impasse, including that it could not come up with a counterproposal on an issue regarding stewards' pay.  SEIU responded that the steward's pay issue was not a deal-breaker, and that it was willing to stay all night to complete negotiations.

The County met with SEIU on July 27, but it refused to accept any offers from SEIU.  The County informed SEIU it believed mediation and factfinding would be fruitless and that it would be imposing its LBFO on July 30.  However, the County also said it would be open to negotiations after July 30.

SEIU and the County met on August 10 and 19 and agreed on a new MOU.  The MOU had an effective date of August 1 and eliminated step increases.  But when SEIU learned in September that the County had refused to pay step increases to those employees entitled to them in July, it filed an unfair practice charge.

PERB ruled negotiations were not at a genuine impasse on July 27.  It found the County declared impasse solely because it wanted to take unilateral action.  PERB ordered the County to provide back pay.  PERB also ruled it did not have to apply the "totality of the circumstances" test for bad faith.  Instead, the County's unilateral change of wages (by elimination of the July step increases) was a per se violation.

This decision strengthens employee groups' bargaining position.  When challenging an agency's declaration of impasse, employee organizations do not have to show bad faith by the agency.  Instead, employee organizations only need to show the declaration of impasse was premature.

Court of Appeal Denies Workers' Compensation Benefits for Officer's Injury During "Hold Over" Shift Commute

On May 19, 2014, the California Court of Appeal in Lanz v. Workers' Compensation Appeals Board ruled an officer's family was not entitled to workers' compensation benefits because an employee's commute after a "hold over" shift fell outside his ordinary course of employment.

In Lanz, a Pleasant Valley prison correctional officer was "held over" from his regular shift and worked 16 hours.  The officer was killed in a car accident during his commute home.  The officer's dependents filed claims for workers' compensation benefits.

Under the "coming and going" rule, an employee is not within the scope of employment when driving home or to work unless undertaking a "special mission."  A "special mission" is a specific instance when an employee is sent by their employer to do something unusual for the purpose of furthering business. 

The Court considered the location, timing, and nature of the officer's task during his hold over shift.  The hold over shift directly followed the officer's regular shift and was at his regular place of work.  The hold over shift affected the officer's commute only by changing the time of his drive home, but not the distance or location.  The Court held the officer's hold over shift was a common occurrence, and not a "special mission."  Therefore, his commute was not in the course of employment and his family was denied workers' compensation benefits.