SUMMERS AND WYATT ANNOUNCES NEW LABOR SCHOLARSHIP RECIPIENT

For the past several years, Summers & Wyatt and the Chattanooga Area Labor Council have co-sponsored a $2,000 scholarship to benefit a college student whose parents or relatives are members of a local labor union. From the standpoint of Summers & Wyatt, this scholarship is just a small way for us to show our appreciation for all the labor union support we have received over the years.

Once again this year we had several outstanding applications. We are pleased to announce that the winner of this year’s scholarship is Jill Tuttle, from McCaysville, Georgia. Jill’s father, Mark Tuttle, is a member of the I.B.E.W. Local 175. Jill will be attending Young Harris College this fall and we wish her the best of luck. Congratulations Jill!

Workers Uniting: The Global Union

The United Steelworkers (USW) officially merged with Unite, Britain's largest union, on 7/2/08 to form what is being called the world's first global union. The new union will be known as Workers Uniting: The Global Union. It will draw on the energies and resources of the two unions' more than 3 million active and retired workers from the United States, Canada, Great Britain, and the Republic of Ireland. The members work in virtually every sector of the global economy, including manufacturing, service, mining, and transportation.

NLRB Watch: Register Guard, and ULP Checklists

On May 15 the NLRB's Division of Advice issued GC Memorandum 08-07 (5/1508) on The Guard Publishing Company, d/b/a The Register Guard, 351 NLRB No. 70 (2007). The memorandum summarizes five cases pursuant to the General Counsel's direction to all Regional Offices to submit Register Guard-related discrimination cases. Here are some conclusions to be drawn:

• Employers can place restrictions on the e-mail use of a union representing its employees (subject to unilateral change issues).
• Even in the absence of discrimination, an employer's anti-union motive will cause an otherwise valid rule to violate the Act.
• Good evidence to show discriminatory solicitation includes: solicitations on behalf of institutional and commercial entities like Avon, Mary Kay, Tupperware and Pampered Chef; individual commercial sales of homemade foods, jewelry and holiday crafts; school fund-raising (candy, candles and wrapping paper); and personal solicitations (for monetary donations for various family circumstances).
• E-mails containing direct communications to management seeking to improve working conditions do not constitute solicitations so they are not subject to the discrimination distinctions that Register Guard allows employers to make.

The GC Memorandum includes a number of case studies.

That same day the NLRB General Counsel also posted several checklists for use by NLRB lawyers to determine whether ULPs were committed: Checklist for 8(a)(1) allegations; Checklist for 8(a)(3) allegations; Checklist for 8(a)(5) allegations; and Checklist for 8(b)(1)(A) allegations.

KEY APPELLATE COURT DECISIONS FROM AROUND THE COUNTRY

Back Pay, NLRB, ULP. N.L.R.B. v. Bolivar-Tees, Inc., 2008 WL 2262368 (8th Cir., 6/4/08) -- After the NLRB found a corporation liable for back pay owed to five employees, it dissolved and transferred its assets. The Eighth Circuit found the Board did not err in piercing the corporate veil of Bolivar-Tees, which was held jointly liable with other corporations within and outside the United States, as well as their controlling owner, Allan Heller. The aforementioned corporations and businessman were held jointly for ULPs, since substantial evidence existed to support the NLRB's findings to the effect that Heller and the corporations' assets were indistinct. Thus, adhering to the fiction of distinct corporate personality in this case would sanction a fraud, promote injustice or lead to an evasion of legal obligations such as the back pay owed to five employees. The court enforced the Board's Order holding Bolivar, Screen Creations, Screen Creations de Mexico, Screen Creations de Celaya and Heller jointly and severally liable.

DFR, NLRA. Adkins v. Mireles, 526 F.3d 531 (9th Cir., 5/16/08) -- The Ninth Circuit determined that a former union members' breach-of-contract claim against the secretary-treasurer and union president is preempted by the statutory duty of fair representation under the NLRA.

Neutrality Agreements, Arbitration. USW v. TriMas Corp., 531 F.3d 531 (7th Cir., 7/3/08) -- The Steelworkers filed suit to compel arbitration of a dispute over the application of a neutrality agreement negotiated between the Steelworkers and TriMas. TriMas refused to honor the neutrality agreement when the Steelworkers sought to organize the TriMas facility in Auburn, Indiana. TriMas asserted that the parties had orally agreed to limit the scope of the neutrality agreement to only three or four TriMas plants and that the Auburn plant was not one of them. According to TriMas, any disputes concerning the Auburn plant were outside the scope of the neutrality agreement and therefore not subject to arbitration.

The district court, on cross-motions for summary judgment, entered an order compelling arbitration, and the Seventh Circuit affirmed. Applying standards from the Steelworkers Trilogy and its own prior decisions, the court held that the dispute over the application of the neutrality agreement was a claim governed "on its face" by the agreement and therefore subject to arbitration under the broad language of the agreement's arbitration clause. The court relied on provisions in the neutrality agreement that defined facilities that are "covered workplaces" under the agreement, and found that the issue whether there had been a modification of that provision by oral side agreement was for the arbitrator. The court refused to consider any evidence regarding the existence or nature of an oral side agreement because the company failed to present any evidence that the asserted side agreement was directed at or modified the terms of the arbitration clause itself.

Social Security, No-Match, Immigration. Aramark Facility Services v. SEIU Local 1877, 530 F.3d 817 (9th Cir., 6/16/08) -- The Ninth Circuit upheld an arbitration award that ordered reinstatement and back pay to workers terminated for not providing an employer with additional documentation after the employer received Social Security Administration no-match letters for the workers. The court concluded that, based on the limited scope of the constructive knowledge doctrine in the immigration context, the general deference owed to an arbitrator's decision and the narrowness of the public policy exception to that deference, the arbitration award did not violate immigration public policy. Echoing the arbitrator's finding that the employer had no "convincing information" that the employees were undocumented, the federal appellate court concluded that public policy was not violated by an award of reinstatement and back pay for the workers. This decision highlights the importance of union protection in the workplace. The arbitrator found that the terminations were unjust under the CBA. The Ninth Circuit supported this conclusion. The Ninth Circuit reversed the lower court's decision and remanded with instructions to confirm the arbitration award.

In 2003 Aramark Facility Services ("Aramark") received SSA no-match letters, which do not contain immigration information and which are sent only to inform workers that the SSA is unable to properly credit their earnings. After giving the workers only a short time to provide additional documentation proving work authorization, Aramark terminated 33 employees. The workers' union, Service Employees International Union, Local 1877, took the matter to arbitration. Finding no "convincing information" that the workers lacked proper work authorization, the arbitrator ordered reinstatement and back pay for the employees. Aramark appealed based on the public policy exception to the deference owed to arbitration decisions and the district court vacated the arbitrator's award.

OTHER KEY COURT DECISIONS FROM AROUND THE COUNTRY

Age Discrimination, ADEA, FAA. Coghlan v. Peters, 2008 WL 2191212 (D.C.C., May 28, 2008) -- The complaint alleged that a feature of the FAA's "Core Compensation" system - the system's failure to include in base pay for retirement and other purposes discretionary pay increases for employees at the tops of pay bands, 98 percent of whom were older - violated the ADEA. The district court initially denied the FAA's motion to dismiss, or in the alternative for summary judgment, without written explanation. Upon the Supreme Court's issuance of Ledbetter, the district court vacated its earlier order and directed the parties to brief the effect of Ledbetter on the named plaintiffs' claims. On May 28, 2008 the court granted the FAA's motion to dismiss, holding that plaintffs' claims were untimely because they were filed more than 45 days after they became aware that they would not receive salary increases that would be included in base pay. One of the two named plaintiffs did not realize the effect of a January 2004 pay decision until June 2004. The other did not file within 45 days of an "all hands" meeting in late 2004 that apparently announced the decision that first affected him in January 2005. Without commenting on the merits, the court said both employees' complaints were untimely and dismissed the case.

DFR. Hayes v. United Parcel Service, 2008 WL 2397568 (W.D. Ky., 6/10/08) -- Fired UPS package car driver's grievance denied by joint committee: Driver's claims that union improperly proposed "mercy" defense, and that business agent was too green to do a good job, held not a breach of the DFR.

ERISA, Strike, 401(k) Plans. Harris v. Finch, Pruyn & Co., 2008 WL 2064972 (N.D. N.Y., 5/13/08) -- During a strike, the employer's representatives responded to questions from the strikers about accessing their individual "401(k)" accounts by stating that the strikers needed to resign or retire to obtain monies from their accounts. These representatives did not explain the loan and hardship withdrawal provisions of the "401(k)" plans. The strikers were not reinstated following the strike because of these resignations to obtain plan benefits. On May 13, 2008, the district court ruled that these participants had stated causes of action under ERISA, including fiduciary breach action. The parties are beginning the discovery phase of the case.

RECENT SETTLEMENTS and VERDICTS IN 2005 AND 2006

Summers & Wyatt doesn't publicize verdicts or settlements out of respect for the privacy of our clients. However, over the years we have been successful in obtaining “substantial” and “very substantial” recoveries in many areas.

Jeff Rufolo has this year settled a wrongful death and personal injury case arising out of an automobile accident for one of the largest recoveries in this area over the past few years.

Jeff, Jerry Summers and an Omaha, Nebraska, law firm (Gross & Welch) have also received a substantial settlement in the wrongful death of a forty-six year old doctor who was killed when his parked vehicle was run over by a produce truck on I-75 near Athens, Tennessee. The doctor left a widow and two teenage children.

Jim Neal and Jeff Rufolo achieved a very substantial jury verdict in a medical malpractice case in Hamilton County, Tennessee, in Circuit Court, when a young man sustained permanent injuries as a result of a cauda equina syndrome from an untreated herniated disk in the Plaintiff's lower back.

Jim Neal, in association with Atlanta, Georgia, attorney Bill Ballard, has recently settled a very substantial medical malpractice case in Nashville, Tennessee, arising out of a failure to recognize complications from surgery resulting in permanent brain damage and eventual death.

Tom Wyatt and Jim Neal, in an association with a New Orleans law firm (Hermann & Hermann), last year settled a very substantial product liability case arising out of an accident wherein a worker was severely burned while working in an Athens, Tennessee, plant. As a result of Tennessee's repressive ten year statute of repose limiting injured parties from recovery for injuries sustained on a seventeen year old machine, it was necessary to file suit in Louisiana where the product was manufactured.

Jim Neal and Jerry Summers, in an association with attorneys Chris Townley and Thomas Lindsey in Rossville, Georgia, represented sixty families of deceased loved ones whose bodies were improperly disposed of in the infamous Tri-State Crematory cases in Noble, Georgia.

Jim Neal and Jerry Summers, working with the David Cunningham firm of Lafayette, Georgia, settled a substantial medical malpractice case against a hospital and an orthopedic surgeon who operated on the wrong foot in a Georgia case.

Jimmy Rodgers and Jerry Summers, when not handling the labor law issues for various unions represented by Summers & Wyatt, continue to work on wrongful death and personal injury cases involving exposure to asbestos products by workers and others. Our firm has been involved in this litigation since 1979 and continues to investigate and handle these cases in the ever changing area of the law as new defendants are found and new clients are diagnosed with asbestos related diseases such as lung cancer and mesothelioma. Due to the complexity of this field, Summers & Wyatt has been honored to be associated with many individual attorneys that have only one or a few such cases.

Jerry Summers, in association with a Tacoma, Washington, law firm (Margullis, Luedtke & Ray), settled a slip and fall case for a substantial amount when a Chattanooga lady suffered a fractured hip when she tripped on a sidewalk at a resort in that state.

In the criminal law field, Jerry Summers was lead trial counsel in a case in Chattanooga wherein several athletes were acquitted of rape allegations at a local university. Jerry also successfully defended a father accused of inappropriate conduct with his stepson arising out of a domestic custody battle that involved serious criminal charges.

If you have any inquiry about one of the above results, please feel free to contact one of the listed attorneys. If you are an attorney, feel free to contact one of the associated law firms concerning their working relationship with Summers & Wyatt.

It is the firm's policy to normally have two lawyers responsible for the handling of each case in order to provide better service to the clients and to have two legal minds discuss preparation, settlement and trial strategy, which we believe is in the best interest of our clients.

ASSOCIATION WITH REFERRING LAW FIRMS

Since our firm started in 1969, a major source of our personal injury cases has been from other law firms in the Chattanooga area, State of Tennessee, Georgia, Alabama, and other states.

Our philosophy in handling a referral is to be professional and fair in all dealings with associate counsel in the handling of each case. The division of fees that may be received is always made with the goal of being fair to both firms depending upon the relative work performed and the results achieved. While some flexibility is necessary, we have always been able to reach a satisfactory result between law firms. Therefore, we have established long term relationships with several law firms involving repeat cases.

Summers & Wyatt will be proud to work with your law firm to achieve a good result for your client.

THOMAS L. WYATT CERTIFIED AS RULE 31 MEDIATOR

Thomas L. Wyatt is certified by the Tennessee Supreme Court Commission on Alternate Dispute Resolution as a civil mediator under Rule 31 of The Rules of The Supreme Court of Tennessee. Tom is available to utilize his 25 years of experience in handling personal injury and workers' compensation cases as a mediator in civil cases.

Tom has recently mediated a number of workers' compensation cases while on appeal, providing a valuable service in such cases where mediation is mandated by the Tennessee Supreme Court. Tom offers an efficient and economic mediation alternative in these cases.

Summers & Wyatt's new offices offer an excellent forum for the comfortable conduction of the mediation process.