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The AFL-CIO Lawyers Coordinating Committee is presenting a live webinar, Ethics for the ERISA Practitioner, on Tuesday, June 25, from 2:00 – 3:30 p.m. (eastern). This webinar will address a variety of ethical issues that Union-side ERISA attorneys face, through the use and discussion of hypothetical situations. Issues include identifying the client, addressing conflicts, how the ethical rules treat informing clients of updates in the law, attorney-client privilege and the fiduciary exception, and confidentiality obligations related to the digital storage and transmission of information. 
The presenters of this webinar will be Jennie Arnold, Ledbetter Parisi LLC, Cincinnati, OH, and Spear Wilderman shareholder Benjamin Eisner.
Details on how to sign up, access the program and obtain CLE credit appear on the LCC webpage, which can be accessed at https://lcc-aflcio.org/.  This program is open only to LCC members. Registration must be done on-line no later that COB Friday, June 21, 2019.  While this webinar is appropriate for both new and experienced lawyers, in many states attorneys within their first two years of admission generally may not earn CLE credit through the completion of virtual programs. If you have difficulty registering or a question about the webinar, please contact Melissa Galowin, LCC Membership and Event Coordinator, at 202-637-5215 or mgalowin@aflcio.org.

Helping Out in the School District Dispute

For a number of years, until early June 2017, the Philadelphia Federation of Teachers' members worked without a new agreement being reached.  That union faced a number of complex legal challenges in this protracted battle.  Perhaps the most serious involved the School Reform Commission's attempt to "cancel the contract" - to put into effect its own version of what the teachers' terms and conditions of employment should, in its own opinion, be.  The PFT was successful in having that effort enjoined in the courts, and the dispute reached Pennsylvania's Supreme Court in 2015.

Spear Wilderman shareholder Sam Spear was privileged to submit an amicus curiae ("friend of the court") brief on behalf of a number of SW clients and other labor unions in support of the PFT's fight.  This case was extremely important for a number of reasons, including this:  25 years ago, the Commonwealth Court had established for Pennsylvania public sector unions and employers the principle that, while negotiations over a new contract are going on, the employer may not "unilaterally impose" its "final offer" - the boss's version of what the contract should look like, not one arrived at through collective bargaining.  It is important to remember this doctrine is the opposite of what the law is in the private sector, where employers can unilaterally implement their final impasse offer. 

The public sector rule took a potentially huge hit when the Commonwealth Court - without as much as mentioning its earlier rule - ruled in the PFT litigation that public sector employers could unilaterally implement - and this in a case where the parties had not even reached an impasse!  This was an enormous threat to a crucial tool of collective bargaining public sector unions had come to rely on.  Spear Wilderman's amicus brief, in addition to supporting the PFT's arguments on whether its contract could be "cancelled," argued that Commonwealth Court's ruling on the unilateral implementation ban was an unjustified and unlawful extension of the law.  And the Supeme Court, which issued its ruling in August 2016, agreed!  Declaring “contract cancellation” of Philadelphia School District CBAs to be illegal, the court (which when it agreed to hear the case had declined to address anything but the issue of contract cancellation) also firmly rejected Commonwealth Court's unjustified attack on the rights of organized labor.  The Court pointed out that, because it did not have to rule on the issue of “employer options upon an impasse,” its opinion now “should in no way be read as an endorsement of the Commonwealth Court’s position” on that issue. This was the equivalent of an outright repudiation of the Commonwealth Court's erosion of its older but still established unilateral implementation ban.  That view was buttressed by the conclusion of the opinion, in which the Supreme Court stated it was affirming the Commonwealth Court’s judgment (which denied the School District’s right to cancel the contract) “albeit on different grounds.” The way this plays out now is, if the implementation issue ever actually arises (by the parties actually being at impasse, and the employer threatening or committing implementation in a future case), the PLRB (which would get the issue) or a lower court (which also might, if the union files for an injunction), would now have to regard the Commonwealth Court’s discussion of the employer’s right to implement as having been effectively discredited.  The unilateral implementation ban still remains the law in Pennsylvania.

The Supreme Court's opinion (which you can access here), in affirming the injunction issued against "cancelling" the teachers' contract, expressly relied on many of the arguments put forth in Spear Wilderman's amicus brief. We are gratified that the Court found the contributions made by our brief to be helpful in vindicating these important rights of workers under Pennsylvania law.

SW Participates in Landmark Labor Board Case

Spear Wilderman client Sheet Metal Workers Union Local 19 spearheaded an effort to change the law regarding representation of employees supplied by emplyment agencies to construction and industrial employers.  Since 2004, the NLRB had prohibited workers supplied by such agencies to be represented for purposes of collective bargaining alongside permanent employees with whom they work.  Labor unions had struggled to change this harmful doctrine, which inhibited collective bargaining and the free exercise of employee rights.  This issue became important in a Local 19 organizing drive, and the Labor Board considered it so significant that it solicited briefs to be filed on the subject on a national basis.  In June 2016, the Board issued its decision in this important case, Miller & Anderson, Inc., agreeing with Local 19's arguments and reversing its earlier position.  Now, as a result of that decision, such "joint employees" have the right to be represented in the same bargaining unit as solely-employed workers, without the employer's consent.  Spear Wilderman shareholder Marty Milz represented Local 19 in the succesful fight to win this new right for workers.  The Board's decision may be found here.    

Labor Board Drops Changing DROP

The Pennsylvania Labor Relations Board agreed with the legal position asserted by SW client AFSCME District Council 33, declaring the City of Philadelphia's unilateral changing of the City's DROP program in September 2011 to be unlawful.  DROP is the acronym for Deferred Retirement Option Plan, enacted for all City employees in 1999.  For the rank-and-file employees D.C. 33 represents, DROP is a crucial benefit.  It often acts as a kind of savings plan for employees who, as a group, are the lowest-paid segment of the City’s workforce, often survive by working paycheck-to-paycheck, and perhaps have the most pressing need for such a benefit as compared to the other higher-paid groups of City employees who enjoy the benefits of DROP – the uniformed officers, professionals, supervisors and managers, and elected officials.  In 2011, Council sought to correct perceived abuses by enacting certain changes which swept far too broadly and, in sum, worsened the benefit for the lower-paid non-police and fire employees.  Pete Matthews, D.C. 33's President, testified before City Council and explained that, if enacted without collective bargaining, changing this important benefit would violate Pennsylvania labor law.  

As soon as the Ordinance changing the DROP was enacted, SW attorney Sam Spear filed unfair labor practice charges with the PLRB, asserting the illegality of this unilateral change. At the same time, he filed a lawsuit to enjoin enforcement of the Ordinance, which the City responded to by agreeing that an injunction should issue protecting the Union's bargaining unit members' pension rights pending a final decision by the Labor Board.  That injunction has preserved this important benefit for these union members.

Finally, on December 18, 2014, the PLRB issued its decision, in which the Board's Hearing Examiner agreed that the City's failure to collectively bargain these pension changes violated its legal obligation, imposed by the Public Employe Relations Act, to bargain in good faith with the Union.  He ordered the City to rescind the Ordinance and to make whole any employees who may have been harmed by the changes.  The City has filed an appeal, but, in the meantime, these members continue to be subject to the terms of the unchanged DROP benefit plan. Coverage by Philadelphia Magazineof this important decision (including a link to the Order itself) can be viewed here.  

SW Attorneys Fight Against Privatization of PGW

Our attorneys have been instrumental in the fight by one of our clients, Gas Works Employees Union Local 686, against the City’s campaign to privatize the City-owned Philadelphia Gas Works.  Jim Runckel has been the union’s point person, fighting the Mayor’s aggressive march toward unloading one of the few profitable assets the City has.  Working with the Union’s leaders and City Council, Jim has appeared on radio shows and TV news, expressing the Union’s opposition to this sale which, in addition to being unfavorable to the ratepayers, threatened the hard-earned pensions and other benefits Local 686 has won over many decades of faithful service to the public.  Press reports describing this battle can be found here and here, and a NBC10 news report can be seen here.  The union's efforts helped lead to Philadelphia City Council's putting an abrupt end to this threat, when Council President Clark announced on October 27, 2014 that Council - which held no hearings and had no member even introduce a bill on the subject - would not support the Mayor's plan.  A Philadelphia Inquirer story detailing this two-year fight and the labor support for Local 686's position can be found here, and an excellent summary of this dispute, with an analysis of its national impact prepared by SNL Financial, can be found here

Settlement of Five-Year Standoff Leads to Withdrawal of Unilateral Implementation Law Suit

As detailed below in an earlier post, SW client AFSCME District Council 33 had gone five years - since July 1, 2009 - without a contract with the City of Philadelphia. The long, unprecedented fight ended in August 2014, with the City agreeing to a contract granting City workers a $2,800 signing bonus, an immediate 3.5% wage increase, and an additional 2.5% increase in July 2015.  The agreement was overwhelmingly ratified by the members by a margin of over 95%.  One crucial aspect of the settlement was the City's agreeing to drop its unilateral implementation lawsuit.  Following the Supreme Court's refusal to assume extraordinary jurisdiction over that case in June 2013, the case was tried by SW Sharehoder Sam Spear in the Philadelphia Court of Common Pleas on July 18, 2014.  While, in the union's estimation, the favorable reaction by the trial judge was cause for optimism regarding the ultimate outcome, this massive threat to the collective bargaining rights of unions throughout Pennsylvania was laid to rest by the City's withdrawal of its suit on September 12, 2014.  Press coverage of the end of this long battle can be found here.

City Rebuffed in "Double Dipping" Case

For decades, the City of Philadelphia, with full knowledge it was doing so, has evaded complying with its Home Rule Charter prohibition against City employees holding other governmental jobs, by hiring full-time School District employees -- mostly Phys Ed teachers -- to work after school and in the summer as Recreation Leaders at City-owned pools and playgrounds.  Neighbors loved the work these employees did, and their experience working with kids was invaluable in performing the functions needed by the City at these popular neighborhood facilities.  It was no surprise that, each year, these workers had to obtain permission from the City for their "moonlighting" jobs with the School District, which was always granted without complaint by the Philadelphia Recreation Department.

In late 2012, the City's Inspector General undertook to "investigate" this practice which was hiding in plain view. By November 2013, the Mayor determined that this form of "double dipping" had to be stopped, and the Inspector General offered the workers this alternative: quit one job or be fired.  They refused this "offer," were fired in January 2014, and their union, AFSCME District Council 33, was able to submit their case on an expedited case to arbitration.

The facts presented at the hearing, held before Arbitrator Anthony J. Visco, were not really in dispute.  All the workers testified they had never hid anything about their School District jobs, which the Department approved every year and which, for some of them, was a motivating factor in their being hired by the City. Some of these employees, who had all worked for lengthy periods for the City - one for as long as 34 years! - had been through this before.  In a Formal Solicitor's Opinion issued in 1972, City Solicitor Martin Weinberg had concluded that it would be unfair to fire employees who may have run afoul of the Charter ban on dual-governmental employment through no fault of their own, but who remained employed at the City's behest, contributing valuable services to the citizens.  He suggested the Charter ban could be enforced in the future by simply not hiring new employees who held other governmental jobs, but he advised the City it would be manifestly unfair to fire long-term employees who themselves were guilty of no wrongdoing.  Ten years later though, the City in 1983 actually did fire over 100 such dual-government employees.  The unions won a court injunction against the City's action and went to arbitration, and the arbitrator agreed with the opinion issued 10 years earlier; the discharges violated the "just cause" standard of the contract and the Charter.  As the arbitrator at that time pointed out, penalizing long-term employees who had done nothing to contribute to a Charter violation the City itself was responsible for - and could have prevented by refusing to hire new workers who it knew worked for the School District - is hardly an acceptable or fair way to resolve this particular personnel issue.  And a decade after that, in response to union threats again to go to court and to arbitrate over what by then should have been settled questions, Mayor Rendell in 1995 backed off a threat to fire some of these same workers whose School District employment was alleged to violate the Charter.  

Some grievants in the present case had lived through this earlier history. They all testified before the arbitrator, joined, amazingly enough, by two Deputy Recreation Commissioners who readily confirmed that, stretching back into the 1960s, the City had full knowledge of and wilfully tolerated the dual-employment of these groups of City workers.

On June 2, 2014, Arbitrator Visco issued his award.  Clearly dumbfounded by its oblivious recalcitrance, he chastised the City and ordered the nine workers reinstated with full back pay and benefits.  Relying on Pennsylvania Supreme Court precedent branding what the City had done a "fundamental injustice," he found the "City has no one to blame for this predicament, but its own decisions consistenly made over at least forty years," and concluded that the "City's careless and blatant failure to do itself what it now asks for in arbitration must be denied." 

Sam Spear represented the grievants and the union in this case (as he had done, assisting Bruce Endy, 31 years earlier in the 1983 arbitration over this same issue).  The grievants were reinstated to their former positions in July 2014, and the City has paid them close to $100,000 in back pay and benefits. Media coverage of the arbitrator's award in this curious but important labor case can be viewed here and here. Earlier stories regarding the City's firing of these employees and resulting controversy over the fairness of the City's actions can be found here

Firm Wins Reinstatement, Back Pay for 4 Mushroom Workers

Spear Wilderman recently successfully represented four workers employed by Kaolin Mushroom Farms, Inc, who had been fired for alleged insubordination and threatening what the company termed a wildcat strike.  Five grievants, who worked as mushroom harvesters, had started work one day last April at 7 am, and worked steadily following a brief break taken at around 9.  After finishing their work at one mushroom house at 4 that afternoon, they told their supervisors they were taking a short break to get water or juice at a lunch facility about 30 feet away, before proceeding to the next house for the remaining 15 or 20 minutes of work that day.  The company claimed they were told not to take the break, but one supervisor testified he told them to go to the next house after finishing their break.  They were fired the next day.

In the subsequent arbitration proceeding, Sam Spear of our office represented the Kaolin Workers Union, the only certified union in Pennsylvania's thriving mushroom industry.  He convinced the arbitrator, Walter DeTreux, that the company's argument that the grievants' conduct amounted to a threat of a wildcat strike was way out of proportion to any offense actually committed, and he ordered that four of the workers (one grievant did not appear at the hearing) be reinstated and made whole but for a three-day suspension, the penalty the arbitrator found to be more in keeping with the relative lack of severity of the grievants' behavior.  

Supreme Court Beats Back Philadelphia Attempt to Change Pennsylvania Labor Law and Unilaterally Impose Its "Final Offer"

Spear Wilderman attorneys recently led the successful fight against Mayor Michael Nutter's attempt to derail the collective bargaining rights of public sector employees throughout Pennsylvania.  Our client, AFSCME District Council 33, has been in contract negotiations with the City of Philadelphia since the last agreement expired on June 30, 2009.  The more than 10,000 workers DC33 represents have gone without a raise in wages or benefits for more than six years -- since July 2007!  They have nevertheless continued to work, serving the citizens of Philadelphia each and every day without fail, holding fast in resisting the City's demands to reduce hard-earned pension, welfare and other benefits.

While the City workers' determination has been an inspiration to workers throughout the State, Mayor Nutter embarked on a strategy, early this year, to unilaterally impose his own  version of what is fair and right -- by seeking to overturn Pennsylvania State law outlawing such tactics that has been in place for decades.  Unlike in the private sector, Pennsylvania law forbids public employers from unilaterally imposing their negotiating position on their workers.  Reversing that principle would create havoc in labor-management relations throughout Pennsylvania.  Realizing such a destructive strike at the collective bargaining process could bear fruit only at the highest levels of state government, Mayor Nutter -- taking a page straight from the book of Scott Walker and other tea partyers bent on destroying the labor movement --  petitioned the Pennsylvania Supreme Court on February 5 to assume extraordinary jurisdiction over this question, and to grant the City permission to end the bargaining process by implementing its "final offer." 

SW partner Sam Spear, DC 33's lead attorney, filed a brief opposing this direct attack on the labor movement, pointing out that the City's request ignored that the parties had been making significant progress in their recent talks; that Pennsylvania law properly rejected the City's proposed solution as ultimately destructive of both sides' obligations to engage in collective bargaining in good faith; and that it is for the Pennsylvania Labor Relations Board, not the courts, and not Mayor Nutter, to determine labor policy.  Many other labor unions throughout the State joined in a friend-of-the-court brief supporting DC33's position.

On June 7, 2013, the Supreme Court, by a vote of five-to-one, agreed with District Council 33 and denied the City's petition asking the court to assume jurisdiction over this significant dispute.  The City's lawsuit, filed in the Philadelphia Court of Common Pleas shortly before it filed its Supreme Court Petition, also requests permission to unilaterally implement the City's proposal, and will now be decided in due course.  Links to statements made by the Pennsylvania AFL-CIO and to news reports covering this important case can be accessed here.  We are proud that attorneys at Spear Wilderman were able to spearhead this crucial battle affecting workers' rights everywhere.

SW Attorney Participates in Wills Case Before Supreme Court

One of our newest attorneys, Nick Botta, was recently involved in litigation reaching the Pennsylvania Supreme Court.  Nick represented clients before the Superior Court of Pennsylvania in a case involving the construction of a decedent's will, the beneficiary designation procedures of a multiemployer employer pension plan, and even religious practices arising under Islamic and Sharia law.  Nick also participated in the appeal before the Pennsylvania Supreme Court.  Nick's clients' position was upheld by an evenly-split Supreme Court decision issued on June 17, 2013, in Alkhafaji v. TIAA-CREF.