NLRB The following few decisions have issued since the last update:

Miron & Sons Laundry (pdf file, 9/16/02) adopts an ALJ decision that is mostly un-excepted-to. The only exception was that the GC wanted the Notice posted in Spanish too, and the Board agreed.

IBEW Local 126 (Henkels & McCoy) (9/16/02) is a jurisdictional dispute under 10(k).

Peck/Jones Constr. (9/20/02) affirms the ALJ, holding that two union business agents were lawfully denied access to the construction site (at LAX), because they had violated a reasonable and non-discriminatory rule requiring visitors to sign in. Recess-appointee Member Cowen, concurring, would go further in ruling against the Union on additional grounds.

ALCOA (pdf file 9/23/02) reverses the ALJ, and holds that an employee was lawfully terminated because – even if it was because of his union activities – he used such naughty language that he forfeited the protection of the Act. He actually said the "f" word, if you can believe it. And so he loses. Bad decision, in my view – though, thankfully, at least not purporting to set forth a blanket rule that if you use the "f" word you lose.

USWA Local 7912 (U.S. Tsubaki) (9/25/02) holds that the union failed to bargain in good faith, in a situation involving a unit-clarification matter after certain employees were moved from their original location. More precisely, the Board holds: "We hold that when the Board finds a group of relocated employees to be a separate appropriate unit, an existing collective-bargaining agreement covering those employees in their original bargaining unit does not apply, absent explicit agreement by the employer and union that it should continue to apply. There was no such agreement here. Accordingly, we affirm the judge’s finding that the Respondent violated Section 8(b)(3) by refusing to bargain for the new unit." Member Liebman dissents. Worth reading.

UFCW Local 204 (9/25/02) affirms the ALJ's conclusion that the union did not act unlawfully in laying off one of its employees; it was an economics-motivated layoff, and was based on seniority.

Iron Workers (Advance Cast Stone) (9/26/02) is another 10(k) jurisdictional dispute, decided by the two recess appointees alone, and winding up with a broad award against the Iron Workers local.

Eleventh Circuit After much delay, here's my report of what the Eleventh Circuit has done since last update:

Martin v. Lamborghini (9/30/02). Martin sued Lamborghini, claiming that his groovy new Diablo was a lemon. But his lawsuit was dismissed as a sanction for perpetrating a fraud on the court, because (among other abuses) he didn't even own the car. That sanction is affirmed, as is the imposition of monetary sanctions on plaintiff and his lawyer, though the Eleventh Circuit remands because the District Court should have taken into account their financial status before socking them with $1.5 million in sanctions.

Holmes v. West Palm Beach (10/8/02) affirms a remittitur in a Title VII case, where the jury's award of back pay damages exceeded the amount that the evidence would support. Much of the opinion is taken up with explaining why a quirky mistake in the special verdict form doesn't change the fact that (in the court's view) the award was greater than the evidence would support.

Loggerhead Turtle v. Volusia County (9/30/02) holds that, while the "catalyst" theory of entitlement to a fee award is dead as to many statutes, it's still alive as to cases under the Endangered Species Act, because that Act doesn't authorize awards only to prevailing parties but instead authorizes awards "whenever … appropriate". Great opinion, applicable also (by its own terms) to various other environmental (and other) statutes listed in a footnote in the opinion.

Mason v. Ford Motor Co. (9/24/02) affirms a big jury verdict, for a death caused by a fuel tank fire in an Explorer. Jury found for Ford on the negligence claim and for Plaintiff on the "defective product" strict liability claim. Ford claims the verdict were inconsistent, but the Court holds that this argument was waived in that it was not raised until post-verdict motion filed after the jury was excused. Whether this was too late, or not, depends on complicated discussion as to whether the verdict form called for a "special" or a "general" verdict, a question that maybe should be simple but it's not. The Court also holds that the damages were not excessive, and that the District Court did a good job of making sure that Ford wasn't prejudiced by bad publicity about other problems with Explorers.

Bradley v. Pryor (9/23/02) holds that a section 1983 suit seeking access to DNA evidence does not constitute a habeas petition, and so is not subject to the rules about successive petitions. The Court does not, however, reach a holding as to the constitutional entitlement to the DNA evidence.

Greer v. O'Dell (9/23/02) holds that a debt servicing company can appear in bankruptcy court on behalf of the real party in interest (i.e., the person owed the debt) – to file a claim, and so forth – and that this does not constitute the unauthorized practice of law.

U.S. v. Roberts (10/4/02) affirms a perjury conviction on a guy who was already in jail and who committed his perjury by claiming (in support of a purported habeas petition) that he hadn't filed any 2255 motion before when really he had. Talk about overkill. Affirmed, holding (inter alia) that his venue argument was not timely raised (he waited til after the prosecution rested); that he wasn't even entitled to an instruction on "literal truth" of his statement as a defense, because (long story short) it wasn't true; that his insertion of the words "to the best of my knowledge and belief" in the written oath doesn't help him; and that it doesn't matter that the indictment mis-stated the date of the offense by a whole year.

Riccard v. Prudential (9/24/02) consists of a mess of cases filed by Riccard against his employer, and he loses on almost every point including sanctions. Arbitration was properly compelled; the award was properly confirmed (and the panel was not biased); he hadn't filed timely EEOC charges as to many things; he was properly sanctioned under Rule 11 for filing a baseless motion for Rule 11 sanctions; he was (with one exception) properly held in contempt of an injunction not to file any more complaints against Prudential; and he was properly enjoined from further filings. A mess.

Alabama Power v. DOE (9/24/02) sounds at first blush like it should be interesting, because it's about (among other things) disposal of nuclear waste and INS v. Chadha (everybody's favorite separation-of-powers case). But it's a massive administrative law opinion, too long and boring to summarize. Read it if your clients have to pay into the Nuclear Waste Fund pursuant to the Nuclear Waste Policy Act.

Bond v. Moore (10/10/02) holds that the 1-year limitation period for filing a habeas petition doesn't start to run until the expiration of the time within which the defendant could have filed a cert petition in the U.S. S.Ct., from the rejection of his state-court habeas proceedings. Watch out, though: a footnote foreshadows the possibility that this might not be the case, if the state-court habeas proceedings included no federal-law claims that could have been properly presented to the U.S. S.Ct.

U.S. v. Williams (10/10/02) orders the dismissal of an indictment under the Speedy Trial Act, because the indictment came more than 30 days after the arrest. Lots of discussion as to what days count and what days are excluded, and why. Answer: not speedy enough, so dismissed. But the dismissal is without prejudice, based on a balancing of relevant factors, even though the indictment was 68 days too late.

McIver v. U.S. (9/30/02) is about successive 2255 motions by federal prisoners; the Court holds that if your first one is just a motion for leave to file an out-of-time notice of appeal, then your next one isn't "successive" so as to require permission by the court of appeals.

Trans Coastal Roofing v. David Boland Inc. (10/10/02) certifies to Fla. S.Ct. an arcane question about subcontractors' sureties and whatnot in a dispute between construction contractors.

Strategic Inc. Fund v. Spear, Leeds & Kellogg (9/30/02) affirms the dismissal of a securities case, with much anger about "shotgun pleadings".

Gulf Power v. FCC is a little opinion with no substantive discussion, on remand from the Supreme Court's decision last Term.