Labor Board Wrongly Rejects Employee Access to Company Email for Organizational Purposes

SAMUEL ESTREICHER, CHRISTOPHER OWENS

NYU Law professor Samuel Estreicher and 3L Christopher S. Owens criticize a recent decision by the National Labor Relations Board (NLRB), in which it reversed course and rejected employee access to company email to discuss union issues. Estreicher and Owens explain that the NLRB commonly reverses its position on key policy issues such as this one when the political party in the White House changes, and they call for reforms that would make the administration of labor law more consistent and reliable.

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Arredondo v. University of Texas Medical Branch at Galveston

Docket: 18-41186

Opinion Date: February 18, 2020

Judge: Carl E. Stewart

Areas of Law: Civil Procedure

Plaintiff filed suit against UTMB and his supervisors for various claims brought under Title VII of the Civil Rights Act, the Family and Medical Leave Act (FMLA), and the Americans with Disabilities Act (ADA). The district court granted summary judgment to defendants on all claims. The Fifth Circuit dismissed the appeal for want of prosecution for plaintiff's failure to adhere to the federal and local rules of appellate procedure. In this case, most of the documents produced in plaintiff's supplemental appendix were not first introduced to the district court and were therefore not part of the record on appeal; plaintiff's motion was unnecessary with respect to the documents that did appear in the district court record but were not in the record excerpts appendix; the brief did not have the technical record citations that were required of appellate briefings; and plaintiff's non-compliance was prejudicial to defendants.

Chevron Oronite Co., LLC v. Jacobs Field Services North America, Inc.

Docket: 19-30088

Opinion Date: February 18, 2020

Judge: Jerry E. Smith

Areas of Law: Contracts, Insurance Law

After Wayne Bourgeois contracted mesothelioma, he filed suit against Chevron and other defendants in state court. Chevron settled with Bourgeois for $550,000, and then sought contractual indemnity from Jacobs Field Services. The district court determined that Chevron was entitled to the full value of the settlement as well as about $256,000 in attorney's fees and costs. The Fifth Circuit affirmed, holding that Chevron easily met its burden to establish potential liability as the governing rule, and the district court did not err in setting potential liability as the operative standard; Chevron established, as a matter of law, that it was potentially liable to Bourgeois; and the district court did not err by finding that the relevant indemnity provision unambiguously entitled Chevron to indemnity in the Bourgeois suit and attorney's fees and "ordinary litigation costs."

Smith v. McConnell

Docket: 18-30287

Opinion Date: February 18, 2020

Judge: Per Curiam

Areas of Law: Criminal Law

The Fifth Circuit affirmed defendant's sentence for conspiracy to distribute and possess with the intent to distribute five kilograms or more of cocaine, plus two counts of unlawful use of communications facilities. The court held that the BOP did not abuse its discretion by refusing to construe defendant's request for custody credit as a request for nunc pro tunc designation. In any event, defendant failed to establish that the BOP has made a final decision on a nunc pro tunc request, and thus his claim has not been administratively exhausted; the BOP did not err by declining to award custody credit under Willis v. United States, 438 F.2d 923 (5th Cir. 1971); and neither 18 U.S.C. 3553(e) nor 3553(f) applied to defendant's situation and thus granting his request would place his sentence below the statutory minimum.

United States v. James

Docket: 18-31069

Opinion Date: February 18, 2020

Judge: Catharina Haynes

Areas of Law: Criminal Law

The Louisiana offense of armed robbery qualifies as a violent felony under the Armed Career Criminal Act (ACCA). Defendant was sentenced as an armed career criminal after pleading guilty to one count of being a felon in possession of a firearm. In Louisiana, armed robbery is "the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon." The court stated that elements of simple robbery are the same, except that they lack the dangerous-weapon element. In United States v. Brown, 437 F.3d 450, 452 (5th Cir. 2006), the court held that the Louisiana crime of simple robbery qualifies as a violent felony under the ACCA. The court rejected defendant's contention, under the rule of orderliness, that the Brown panel must have relied on the residual clause when it concluded that the use of force needed for robbery was the same as the use of force contemplated in the ACCA. Furthermore, subsequent precedent has supported, rather than overruled, Brown.