All Posts By

Patrick Forrest

Texas Supreme Court Issues Win for Manufacturers

By | Manufacturers’ Center for Legal Action, Shopfloor Legal | No Comments

Today, in a 9-0 decision, the Texas Supreme Court issued an opinion reversing the judgment of the Houston court of appeals and rendering a take-nothing judgment against Jason Jenkins. In its opinion, the Texas Supreme Court concluded that Occidental breached no duty of care to Jenkins. As a result, the court never reached the statute of repose issues in the case. The NAM had filed two briefs with the Texas Supreme Court in this matter arguing that the lower court’s decision breaks from clearly established Texas law and sets a dangerous precedent that weakens Texas’ robust manufacturing economy. Manufacturers across Texas were facing unforeseeable and expensive liability created by the decision. Read More

ICYMI: Supreme Court Issues Decision in DirecTV Case

By | Briefly Legal, Manufacturers’ Center for Legal Action, Shopfloor Legal | No Comments

Today, the U.S. Supreme Court decided in a 6-3 opinion by Justice Breyer, that DirecTV’s service agreement barring mass arbitration by its customers must be enforced by California courts.  Though the Federal Arbitration Act (FAA) allows parties to choose what law governs some or all of the provisions of an arbitration agreement, invalid California law on contracts of adhesion does not pre-empt the federal law, Breyer said in the decision. Read More

Courts Hear Arguments on Net Neutrality Case

By | Briefly Legal, Innovation, Manufacturers’ Center for Legal Action, Shopfloor Legal, Shopfloor Main | No Comments

Today in the D.C. Circuit, three judges heard arguments in United States Telecom Ass’n. v. Federal Communications Commission (FCC), which involves the FCC’s Open Internet Order also known as the net neutrality rules. The arguments were held in the Court’s sixth floor ceremonial courtroom, but because of the overwhelming interest in a case that could shape the future of the Internet economy, a second overflow courtroom was made available to accommodate all the participants.

The rules are broadly written and provide vague, catch-all authority to the FCC, which increases policy risk for broadband companies through FCC exercise of enforcement discretion.  This regulatory uncertainty is why Congress needs to step in with legislation and create certainty.  A decision is expected from the Court in early 2016. Read More

Shareholder Activism in the U.S. Courts

By | Manufacturers’ Center for Legal Action, Shopfloor Legal | No Comments

Last week, in a major ruling, the Third Circuit Court of Appeals overturned a District Court ruling and affirmed positions asserted in the NAM’s amicus brief in Trinity Wall Street v. Wal-Mart Stores, Inc.   If allowed to stand, the District Court’s ruling would have had serious implications for U.S. manufacturers and their retailing customers by requiring inclusion of frivolous and inappropriate shareholder proposals in proxy statements at the company’s expense—and, therefore, at the expense of every other shareholder.  Read More

Court’s Shareholder Activist Standard Eliminates Free Market Principles

By | Manufacturers’ Center for Legal Action, Shopfloor Legal | No Comments

The Manufacturers’ Center for Legal Action (MLAC) filed an amicus brief with the Third Circuit Court of Appeals in Trinity Wall Street v. Wal-Mart Stores, Inc. asking the Court to reverse the lower court’s ruling.  In Trinity Wall Street v. Wal-Mart Stores, Inc.,  a federal District Court overruled the staff of the SEC to compel Wal-Mart to include a shareholder proposal in the company’s proxy statement.  The proposal sought greater board oversight over a broad swath of products that could endanger “public safety” or “well-being”, that have “the potential to impair the reputation” of the company and that are “offensive” to “family and community values.”  Now on appeal to the federal Third Circuit Court of Appeals, the MLAC filed an amicus brief in the case in support of Wal-Mart. Read More

Divided National Labor Relations Board Upsets 30-Year Precedent on Deferral to Arbitration

By | Manufacturers’ Center for Legal Action, Shopfloor Legal | No Comments

In a case in which NAM filed an amicus brief, a sharply divided NLRB issued a 3-2 decision in Babcock & Wilcox on Monday, December 15 shortly before the expiration of Board Member Nancy Schiffer’s term. The Board revised its traditional standard for Board deferral to arbitration in cases alleging discrimination against employees, making it more difficult for the parties to rely on arbitration in lieu of litigation before the Board and undermining federal policy encouraging the voluntary settlement of labor disputes. Members Miscimarra and Johnson filed separate dissents.  The changed deferral standard will have a damaging effect on final and binding arbitration. Read More

Supreme Court Decision Provides Clarity to Manufacturers

By | Manufacturers’ Center for Legal Action, Shopfloor Legal | No Comments

This morning the Supreme Court unanimously reinforced arguments asserted in the NAM and coalition associations’ amicus brief filed in Busk v. Integrity Staffing.  NAM’s amicus contended that the 9th Circuit should be reversed in concluding that time spent undergoing security checks is compensable under the Fair Labor Standards Act (FLSA).  Justice Thomas delivered the majority opinion for the Court supporting the NAM’s argument which affirmed that the Fair Labor Standards Act does not require employers to compensate employees for the time spent on security checks before and after the work day. Read More

Busk v. Integrity Staffing

By | Manufacturers’ Center for Legal Action, Shopfloor Legal | No Comments

NAM has filed an amicus brief in support Supreme Court cert petition to review the 9th Circuit to decision issued in Busk v. Integrity Staffing.  The 9th Circuit concluded that time spent undergoing security checks is compensable under the Fair Labor Standards Act (FLSA).  NAM is arguing that the Supreme Court’s review is needed now to dispel the confusion, resolve the conflict, and confirm that the FLSA does not require employers to compensate employees for the time spent on activities before and after the work day.

We believe this is the Department of Labor’s attempt to expand the definition of what is an “Integral and indispensable “activity under FLSA to include activity’s such as changing into work uniforms and other ancillary activities relating to the preparation of conclusion of work.  The result is a decision that sows considerable confusion for the ever-increasing number of businesses, municipalities, and other entities that use security screenings as part of their ordinary course of business.

UPDATE: The Supreme Court will hear oral argument on this case tomorrow. The Manufacturers’ Center for Legal Action is pleased that the Court recognized the need for further review of this important case.

NAM Backs Boeing after Misguided Decision by NLRB Judge

By | Briefly Legal, Labor Unions, Manufacturers’ Center for Legal Action, Shopfloor Legal | No Comments

Individual cases before the National Labor Relations Board (NLRB) rarely get noticed by anyone other than labor or employment lawyers, but that doesn’t mean they aren’t worth watching. These decisions have broad implications for all employers, not just the one involved directly in the case.

Recently, an NLRB administrative law judge (ALJ) issued a decision that, if allowed to stand, would have significant implications for manufacturers and their intellectual property. The judge concluded that Boeing’s prohibition of cameras—a policy that has been in place for 35 years—constitutes an unfair labor practice because Boeing has no credible business need to protect its manufacturing process. Of course, as technology has developed, the rule has captured additional devices, and today smartphones fall under the ban.

Boeing has good reason to be cautious about allowing unfettered photographic access to its shop floor. For one, its competitors and some foreign governments would love to get their hands on Boeing’s proprietary information. The ALJ would make that easy for corporate spies—just go to an employee’s Facebook page and study photos from inside Boeing. In addition, many of Boeing’s products are subject to strict export controls. Making photos of these products or processes public could violate federal law.

The NLRB’s decision puts Boeing in a tough spot, creating a problem where none existed. And, besides, NLRB lawyers shouldn’t be in the business of creating new rights for employees in the first place.

Because of the dangerous precedent this case could set for future disputes before the NLRB, the NAM filed a brief highlighting this overreach and the impact it would have on businesses, particularly manufacturers. For more information about the case, click here.

Patrick Forrest is Vice President and Deputy General Counsel at the NAM. He also serves as part of the Manufacturers’ Center for Legal Action, the leading voice of manufacturers in the courts. To read more about the Manufacturers’ Center for Legal Action, please click here.