Monday, January 25, 2016

The SCOTUS reversed and remanded an ERISA plan case involving tustee’s duty of prudencet.

The SCOTUS reversed and remanded an ERISA plan case involving the question of a trustee’s duty of prudence case to the Ninth Circuit.

Amgen v. Steve Harris is a case that involved employees of an employee stock ownership plan (“ESOP”). The employer administered the plan. The employees sued alleging a breach in ERISA’s duty of prudence by the employer for failing to stop offering Amgen stock as a purchase option to plan members in 2007 when it had inside information that the stock was about to take a precipitous drop in value.

In the District Court, the employer succeeded on a motion to dismiss that the employees appealed to the Ninth Circuit. The Ninth Circuit held that the employees had stated a claim sufficient to survive the motion to dismiss. The case initially came before SCOTUS in 2014, in which session the Court also issued its opinion in Fifth Third Bancorp v. Dudenhoeffer, which spelled out the test for a motion to dismiss in an ERISA duty of prudence case involving a tradition ESOP:

1)Has P alleged an alternative action D could have taken which would have actually resulted in less financial loss to members and which
2)Is legal under securities law, and
3)Would not have appeared to a reasonable fiduciary as more likely to harm the plan than to help it.

In 2014, SCOTUS vacated and remanded the Amgen case to Ninth Circuit for a decision in keeping with Fifth Third Bancorp. The Ninth Circuit again found that the Employee/Members had stated a claim, and this cert. petition followed.

In a per curiam decision, SCOTUS chastised the Ninth Circuit for “failing to properly evaluate the complaint.” SCOTUS then read the complaint and found that it failed to state a claim under the Fifth Third Bancorp standard because a prudent fiduciary could have plausibly believed that to cease offering Amgen stock would cause the stock price to drop based on the market’s assessment that the Employer/Fiduciaries, who have inside information, no longer value the stock. Since that could end up doing more harm to the plan than good, it was acceptable to continue offering the stock.

As a result, SCOTUS reversed and remanded, leaving it to the district court’s discretion whether to permit the employees amend their complaint in order to plead a claim within the Fifth Third Bancorp standard.

Thursday, January 21, 2016

Just Cause Tests in Disciplinary Arbitrations

DISCLAIMER: This guideline is not intended to provide or replace any legal advice and if the reader requires such advice, please contact an attorney.

Union Arbitrations: Just Cause Tests in Discipline/Discharge Cases

Labor Union-employer collective bargaining agreements general have in their contracts provisions requiring the employers to have “just cause or “good cause” before the employers can discipline or discharge an employee. This Post is a brief guideline of the tests and principles relating to just cause based arbitrations. My hope is that it gives unon representatives tools to protect their union members from improper employer disciplinary action. If you such a warrior, I suggest you save this Post in your smartphones, Evernote applications, DropBox accounts or simply printout the guideline for future references.

The Principle of Just Cause and Disciplinary Arbitrations

The hallmark of “just cause” is the essential fairness of the employer’s actions in implementing discipline against an employee. That is what arbitrators look for in deciding discipline and discharge cases. What follows is a series of questions or tests (sometimes referred to as the seven tests) that an arbitrator might look to in order to determine whether the Employer was fair (had just cause) in imposing the discipline in question. If the answer to any of these questions is “no” the arbitrator may find no just cause for the discipline in question.
Keep in mind, the primary focus of the arbitrator is whether the misconduct actually occurred, so the failure of the Employer to be fair alone may not win the arbitration

What is the Level of Burden of Proof on the Employer?

Under the just cause standard, the burden of proof is on the employer to justify its adverse action against the grievant. The amount of proof possibly required:
"beyond reasonable doubt”
“clear and convincing”
“preponderance of the evidence”

There is no clear rule, but the more serious the discipline at issue, the more convincing the employer’s case will need to be in order for the discipline to be sustained.

Was There an Investigation and was it a Fair and Objective Investigation? (Tests One and Two)

In evaluating whether there was just cause for discipline, an arbitrator will look at a number of aspects of the events that led up to discipline being imposed.
Did the Employer do a prompt, fair, objective investigation of the alleged misconduct?
During the investigation, did the employee have access to Union representation and an opportunity to tell his/her story? Fundamental principles of fairness require that an accused have a chance to defend himself—his “day in court” –before being found guilty of misconduct, not after.

Did the Employer Have Enough Proof? (Test Three)

How did the employer make the decision discipline was warranted?
At the investigation, did the Employer obtain substantial evidence or proof that the employee was guilty as charged? The evidence must be substantial and not flimsy. The Employer should actively search out witnesses and evidence, not just passively take what participants or “volunteer” witnesses tell him/her.

Was a Reasonable Rule Involved in the Disciple? (Test Four)

What was the work rule involved? Is it a reasonable one? How sever was the infraction? Was it sufficient to justify the severity of the penalty? Please note abitrators are reluctant to uphold discipline in cases where the work rule at issue is not reasonably related to the safe and efficient operation of the enterprise. If an employee believes a rule or order is unreasonable, he/she must work now, grieve later unless the employee sincerely believes that to obey the rule/order would jeopardize his/her health/safety.

Did the Employer Give Notice of the Rule and Possible Penalty? (Test Five)

Did the employee have notice of the work rule as well as the disciplinary consequences of misconduct?
Generally, employees are entitled not only to adequate notice of the employer’s work rules, but also to notice of the potential disciplinary consequences of their misconduct. Notice can be oral or in writing but there should be actual oral or written communication of the rules/penalties to the employee.

Was the Degree of Discipline Reasonable? (Test Six)

Progressive Discipline
Was the misconduct subject to progressive discipline and, if so, was it applied?
The idea of progressive discipline is to correct or rehabilitate the employee, however arbitrators recognize immediate termination as justifiable for the most sever misconduct: for instance, violence or theft in the workplace. What is employee’s prior disciplinary history? A poor disciplinary record can be seen as evidence that an employee’s misconduct is not amenable to rehabilitation. On the other hand, a good record can support the claim that the grievant deserves a second chance.

Was Any Disparate Treatment Present? (Test Seven)

How has the employer treated other, similar infractions in the past? The general rule is that like cases should be treated alike. Disparate treatment subjects the employer to a charge of discrimination, which can undermine the validity of its just cause argument. Problems frequently arise where an employer decides to tighten up on prior lax enforcement of work rules.

Are There Any Mitigating Circumstances?

Look for motive. Where fights or insubordination, profanity, etc., are involved, check to see if the grievant was provoked, or trying to defend him/herself. Look also to supervisor motive. If you can show that a supervisor has reason to “do in” the grievant, that should be brought out. Long, clean service record may be argued in favor of the proposition that the employee should be returned to work even where he/she is guilty of misconduct. In a disciplinary penalty dispute, the Arbitrator(s) have the authority to award the Employer’s or Union’s position or a penalty somewhere in between. (See JCLRC Clarifications). Therefore, mitigation evidence is key if the Arbitrator(s) will be deciding a disciplinary penalty.

Monday, September 28, 2015

Miguel's Unique Response

A Typical Miguel Contreras Response
Last night I tried a brain trick that usually produces good results for me; I asked my brain to think about a difficult question I was struggling with and to provide me a solution when I woke-up the next morning.  However, inconsistent with my experience I did not received my answer and here is what happened while I was asleep.

Me:  I dreamt (well I think I was still asleep) I woke up and went downstairs to make coffee when suddenly I saw Miguel sitting in my kitchen.  Stunned, I asked Miguel why was he in my kitchen.
Miguel:  Hey Stevarino, I am not sure why I am here.  All I know is that I received a direct order from the Boss to meet you today.  By the way, can I have some coffee?  

Me: Sure, I think I remember how you take it.  Here you go.   
Miguel:  Mmmm! Goddamn (oops sorry Boss), Stevarino! This is some serious gourmet shit!  Usually, I would be happy with some freeze-dried Taster's Choice, but you spring this serious gourmet shit on me!  What flavor is this? 

Me:  Knock it off, Miguel.  I know how good my coffee is.  I am the one who buys it.  Anyway, those lines about the gourmet coffee are from the movie Pulp Fiction and when Jules says them to Jimmie it is a lot funnier.

Miguel:  Oh, I thought I heard those lines before.  Anyway, what is up with you?  And, please if you have a problem do not make your problem my problem. 
Me:  It is not really a problem Miguel, but more of a question.  And, why do you always tell me “don’t make your problem my problem?’

Cellphone music tone of the theme song from the movie Godfather suddenly goes off . .

Miguel:  Hello.  Yes, yes, okay I will be right there.  Sorry Stevarino, I have to leave.  I have a full day of arbitrations and I am fighting to get some people into paradise and not the other place.  And, some of the cases are simply losers but politically important for the Boss. 

Me:  Okay Miguel be well.

Then I woke up with no solution. Or, was there a message somewhere in there that I did not get?

Thursday, July 19, 2012


Today it is a daily occurrence for politicians to attack unionized workers and unions.  When we think about these attacks, we of course expect them to come from the wealthy, Republican politicians who work for the wealthy, and the misinformed.  However, why are we seeing Democrats and termed-out Democrats among those ranks?  An examination of all the reasons is well beyond the limits of this post so I will be brief.  

Some politicians and billionaires believe government should implement the corporate economic principle of "survival-of-the-fittest” instead of the well-honored system of seniority.  Bill Gates and Microsoft engage in this corporate management style and that is one of the main reasons we see this in attacks against public employee unions (for a more detailed analysis of this point read Chris Hayes' brilliant book Twilight of the Elites). 

Then there is the principle that little to no government is best for the economy that was championed by Milton Friedman and President Ronald Reagan.  In addition, there is the economic principle (also by Mr. Friedman and President Reagan) that no interference whatsoever should come from government, communities or unions (and for an excellent read on the devastating global impact of these two principles pickup Naomi Klein’s book Shock Therapy). 

Now this leads me to the main question: so why are current and termed-out and allegedly pro-union Democrats leading this hate parade?  Although I expect the reasons are many, one thing I know is certain; some of these politicians lacked honest commitment to workers rights from the start. 

Recently the labor movement has wisely recognized the critical need to identify and support those politicians who in bad and good times will fight for economic and social equality for all workers and who will not give in to the temptations of money from the wealthy.  Yet at the same time, labor must exercise caution and identify those politicians who have shown in their actions or in their moral character that they will only stand for workers’ rights when times are good.  

Today’s political environment of hate towards workers and especially organized labor is a testament to how important that analysis really is because we have these current and termed-out Democrats chasing after the billionaires’ money whether the money is in the form of contributions or in the form of highly-paid and prestige sounding non-profit jobs.  Yet, at the same time, they hold themselves out as believers in equality for all workers and members of their communities.

Now before I finish, allow me to make one point.  I recognize and thank the California politicians that continue to fight for workers’ justice; however, even they have to admit some of their colleagues have embraced the anti-union agendas of the wealthy mainly for their own personal gains.  Yet, no matter how few these greedy Democrats, we must hold them accountable for their greed and the harm they cause.  

This leads me to a question that is the subject of another post.  What are we going to do about these “friends” of labor and perpetuators of our society’s social ills before it is too late?   

Tuesday, July 10, 2012

California Supreme Court Allows Cities to Opt-out of Prevailing Wage Laws

The California Supreme Court last week issued a decision on state prevailing wage laws that has devastating implications for labor. The Court held that a charter city does not have to comply with state prevailing wage laws if it passes an ordinance prohibiting any city contracts from requiring payment of prevailing wages. Essentially, the Court held prevailing wage issues are matters of municipal concern, rather than statewide concern, and that this cannot be cured by state legislation because it's a constitutional matter. Furthermore, the Court's specious findings for the need for prevailing laws and its equally erroneous distinction between statewide concerns and municipal concerns will have frightening and broad implications. What is next? Public bidding? Pension rights?  Agency Shops? Can we expect that billionaires will soon sponsor and financially support campaigns for new city ordinances that reject prevailing wage laws?  Only time will tell.  Jump to Court Decision 

CA Cities Can Opt-out of State Prevailing Wage Laws

Sunday, July 8, 2012

California Paycheck Deception Initiative


Workers in California must turn their attention to defeating the “Special Interest Money Now Act” (“Paycheck Deception Act”) that is on this November balloting. This initiative is an attempt by wealthy and political dominant billionaires to take control of California politics by eliminating the ability of labor organizations to support and elect candidates who believe in workers’ safety and fair wages and instead buy politicians who will act solely in the interest of the wealthy.

Major Provisions

In a few words the major provisions of this initiative limit the rights of labor unions to contribute money to a candidate's campaign for political office or to any committee controlled by a candidate. Specifically, it prohibits:

  • Labor unions from contributing money for these purposes
  • Government contractors from contributing money for these purposes in cases when the candidate, if elected, could play a role in awarding a government contract to the contractor
  • Corporations, government contractors, government employers, and labor unions cannot deduct wages from employees and union members to be used for political purposes
  • Corporation and labor unions can receive voluntary contributions, but not through payroll deductions. Instead, voluntary contributions must be made through other means such as a check, transfer from a bank account, or credit card. These voluntary contributions would have to be authorized in writing by the employee, every year.


The sponsors of the initiative are no surprise. They include billionaires A Jerrold Perenchio and an array of Orange County political groups. Top contributors include William E. Bloomfield Jr., Larry Smith, Paycheck Protection 2010, Charles Munger, Jr., Timothy Draper, William Edwards, Wayne Hughes, Frank E. Baxter, Citizen Power Campaign, Lion Club OC, and the Howard Jarvis Taxpayers Assoc.

Prior Attempts to Limit Unions’ Ability to Contribute to Candidates

In 2010, a similar proposal attempted but failed to reach the ballot.

Earlier in 2005, Governor Schwarzenegger’s special election included Proposition 75, “Public Employee Union Dues Restrictions on Political Contributions. Unlike the current Paycheck Deception Act, Prop 75 targeted public sector unions, not all unions. Prop 75 would have required public sector unions to obtain annual written permission from each member that specified: the amount of fees that could be used by the unions for general political purposes and or an amount that could be used by the unions for a political contribution to a specific political committee, which the employee had to identify. Prop 75 was defeated. The final vote count was 53.5% to 46.5%.

In 1998, there was Proposition 226, “Political Contributions by Employees, Union Members, and Foreign Entities Initiative Statute” that also tried to stop payroll deductions. Prop 226 required all employers and labor organizations to obtain employee or member's permission before withholding wages or using union dues or fees for political contributions. Employee or member's permission had to be obtained annually using a prescribed form. The final vote count was 54.33% to 45.77%.

Utah, Idaho, Ohio, Wyoming, Michigan, and Washington State all have similar “Paycheck Protection” laws. An example of the possible impact comes from Utah. The Utah Education Association reported that since a paycheck protection measure became law they experienced a drop in voluntary contributions for political purposed from 68% to 7%.

Proposed Statute

The Stop Special Interest Money Now Act would amend California Government Codes as follows.

§85150 (a) Notwithstanding any other provision of law and this Title, no corporation, labor union, or public employee labor union shall make a contribution to any candidate, candidate controlled committee; or to any other committee, including a political party committee, if such funds will be used to make contributions to any candidate or candidate controlled committee.

(b) Notwithstanding any other provision of law and this Title, no government contractor, or committee sponsored by a government contractor, shall make a contribution to any elected officer or committee controlled by any elected officer if such elected officer makes, participates in making or in any way attempts to use his or her official position to influence the granting, letting, or awarding of a public contract to the government contractor, during the period in which the decision to grant, let, or award the contract is to be made and during the term of the contract.

§85151 (a) Notwithstanding any other provision of law and this Title, no corporation, labor union, public employee labor union, government contractor, or government employer shall deduct from an employee's wages, earnings, or compensation any amount of money to be used for political purposes.

(b) This section shall not prohibit an employee from making voluntary contributions to a sponsored committee of his or her employer, labor union, or public employee labor union in any manner, other than that which is prohibited by subdivision (a), so long as all such contributions are given with that employee's written consent, and that consent shall be effective for no more than one (1) year.

(c) This section shall not apply to deductions for retirement benefit, health, life, death or disability insurance, or other similar benefit, nor shall it apply to an employee's voluntary deduction for the benefit of a charitable organization organized under Title 26 United States Code section 501(c)(3).

§85152 For purposes of this Article, the following definitions shall apply:

(a) "Corporation" means every corporation organized under the laws of this state, any other state of the United States, or the District of Columbia, or under an act of the Congress of the United States.

(b) "Government contractor" means any person, other than an employee of a government employer, who is a party to a contract between the person and a government employer to provide goods, real property, or services to a government employer. Government contractor includes a public employee labor union which is a party to a contract with a government employer.

(c) "Government employer" means the State of California, or any of its political subdivisions, including, but not limited to, counties, cities, charter counties, charter cities, charter city and counties, school districts, University of California, special districts, boards, commissions, and agencies, but not including the United States Government.

(d) "Labor union" means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.

(e) "Political purposes" means a payment made to influence or attempt to influence the action of voters for or against the nomination or election of a candidate or candidates, or the qualification or passage of any measure or any payment received by or made at the behest of a candidate, a controlled committee, a committee of a political party; including a state central committee, and county central committee, or an organization formed or existing primarily for political purposes, including, but not limited to, a political action committee established by any membership organization, labor union, public employee labor union, or corporation.

(f) "Public employee labor union" means a labor union in which the employees participating in the labor union are employees of a government employer.

(g) All other terms used this Article that are defined by the Political Reform Act of 1974, as amended (commencing with section 81000 et seq.), or by regulation enacted by the Fair Political Practices Commission, shall have the same meaning as provided therein, as they existed on January 1,2011.

SECTION 3. Implementation

(a) If any provision of this measure, or part of it, or the application of any such provision or part to any person, organization, or circumstance, is for any reason held to be invalid or unconstitutional, then the remaining provisions, parts, and applications shall remain in effect without the invalid provision, part, or application.

(b) This measure is not intended to interfere with any existing contract or collective bargaining agreement. Except as governed by the National Labor Relations Act, no new or amended contract or collective bargaining agreement shall be valid if it violates this measure.

(c) This measure shall be liberally construed to further its purposes. In any legal action brought by an employee or union member to enforce the provisions of this Act, the burden shall be on the employer or labor union to prove compliance with the provisions herein.

(d) Notwithstanding Government Code section 81012, the provisions of this measure may not be amended by the Legislature. This measure may only be amended or repealed by a subsequent initiative measure or pursuant to Article II, Section 10(e).


The passage of this initiative would devastate unions’ election rights as follows:

§ Although under the proposed law both unions and corporations may still contribute to political activities, but since union contributions come primarily from members, as opposed to companies who have budgets for political activities, this initiative would primarily have a devastating impact on unions.

§ Corporations and wealthy individuals tend to fund ballot measures, Super PACS, and political parties, not individual candidates. Therefore, again the impact on unions is highly disproportionate.

§ Proposed provision §85151(a) prohibits any deduction from employee’s wages, earnings, or compensation for any amount of money to be used for political purposes. That means that voluntary contributions under proposed §85151(b) would have to come through writing checks or making transfers from bank accounts, or credit card transactions. This would be an onerous process for unions.

§ As Common Cause, a non-profit citizen lobbying organization, points out in a memorandum, workers, especially lower-wage workers, are less likely to have bank accounts to make these transactions possible, even if they wanted to make voluntary contributions.

§ In addition, for voluntary contributions, unions would have to secure written consent from employees giving voluntary contributions that must be renewed yearly. This would pose a huge obstacle to the collection of even voluntary contributions. Every year unions would have to secure new consent forms from employees willing to give voluntary contributions.