It was a difficult case, even heart-wrenching.  A policeman had rushed to a low priority call and had accidentally struck and killed another San Antonio police officer.  See San Antonio Express News report.  The policeman in a hurry was David Seaton. Proceeding at 100 mph without lights or siren on, he ran a red light and struck another vehicle.   The collision seriously imnjured the other driver and another San Antonio Police Officer, Robert Davis.  Officer Davis was working an earlier auto collison.  Mr. Seaton also suffered injuries in the crash.  

Eventually, he was convicted of assault and manslaughter.  The trial was emotional.  The presiding judge described it as one of the most traumatic cases he had ever presided over.  And, apparently, the jury foreperson wrote about it on her blog.  The defense lawyers sought a new trial, saying Ms. Grennes had a political agenda and that she had hidden her self-employment (ie, the blog).  The foreperson denied any political agenda and said her blog only gets 13 hits a day.  She did not mention her self-employment and the blog because she did not think it important to jury service. 

Mr. Seaton’s defense lawyers learned about the blog entry and investigated the foreperson.  She said she was contacted by someone claiming to be a college student researching the trial. The forepeson, Pamela Grennes, later learned that the alleged student was a private investigator.  The defense lawyers filed a motion seeking a new trial.  During testimony, Ms. Grennes told the defense lawyer she deleted the posts about the trial because she felt threatened by the defense lawyers.  The judge denied the motion for new trial. 

Yes, blog entries do affect trial outcomes. 

The National Labor Relations Board (NLRB) filed a complaint regarding a company which took action against an employee who had posted unfavorable comments about the company on her Facebook page.  See my prior post about this case.  The NLRB and the employer have now settled that case.  As part of the settlement, the company agreed to change its overly broad rules prohibiting employees from discussing their wages, hours and working conditions.  See report. The employer’s prior policy had prohibited employees from depicting the employer "in any way" on social media sites or writing disparaging comments about co-workers or superiors.  

So, no agency decision resulted from the complaint.  But, this will surely not be the last Facebook case….

 The NFL is engaged in labor negotiations over a new contract.  It appears that at one recent meeting, one of the owners displayed some disprespect for two of the player representatives at that meeting, Drew Brees and Peyton Manning.  Jerry Richardson, owner of the Carolina Panthers and former NFL player, listened as Mr. Manning was discussing player safety.  Mr. Richardson then asked what Mr. Manning knows about player safety.  See news report.  

Labor negotiations require that the participants be on their best behavior.  Labor negotiations can be tense even when everyone is behaving nicely.  Mr. Richardosn is apparently trying to start some conflict.  He has been advocating that the owners be more aggressive with the player’s union. 

I was a member of a union once.  Even though I was not involved in the negotiations over a new contract, I heard about the negotiations frequently.  They were tense.  But, at least in my union’s case, personal attacks were avoided.  

Way back when, Bart Starr was a labor representative for the then new NFL player’s union.  Vince Lombardi, hardly a raging lberal, told Mr. Starr that he should show leadership in the union.  Vince Lombardi always pressed his players to be leaders on and off the field.  

Successful labor negotiations require some minimum level of respect by both sides.  Coach Lombardi understood this.  Owner Richardson should also. 

In a clever move, Bexar Metropolitan Water District has offered Gilbert Herrera, a whistleblower, his old job back.  See San Antonio Express News report.  Bexar Met has also deposited the amount of Mr. Herrera’s lost pay into the registry of the court.  Yet, the lawsuit will proceed. 

See my prior post about Mr. Herrera and his whistleblower claims.  I said then that his lawsuit looked like a strong lawsuit. 

The news paper report does not identify the specific legal manueverings.  But, in offering the whistle blower his job back, Bexar Met is attempting to cut off his lost pay.  The employee’s lawyer, Alex Katzman, says that the offer will subject Mr. Herrera to working for the same boss who fired him.  If so, then the offer may be found to be insincere.  If the offer is not genuine, then back pay will not stop.  So, you can see the chess game being played out.  One side can stop lost pay if they make a genuine offer of reinstatement.  The other side then counters that working for the manager who fired him is not a genuine offer. 

Its all about the chess game…..

Yes, you can get fired for anything in an at-will state.  A Green Bay Packer fan was fired in Chicago because he wore a Packer tie to work.  See report.  He wore the tie to his job selling cars at Webb Chevrolet shortly after the Packers beat the Bears in a playoff game.  The dealership is involved in promotions with the Bears and took offense at the tie. The General Manager told him once to take it off.  The salesman thought he was joking.  The GM told him again later and then fired him when he did not take off the tie.  The car salesman is a long-time Packer fan.  He also wore it in honor of his 91 year old grandmother, a Packer fan, who had died that month.

The GM said he was not aware of the grandmother’s death.  But, the GM also never asked.  And, now he must deal with all the negative publicity. 

 The employer does lose, sometimes.  I wrote about the nurses who complained about a doctor.  See prior post.  The nurses were charged with felonies, which charges were eventually dropped.  They then filed a whistleblower lawsuit and eventually settled.  Their lawsuit became nationally known.  Well, now the doctor they complained about has now suffered his own repercussions.  He has been placed on probation for four years by the Texas Medical Board.  The TMB oversees doctors.  See Austin American Statesman report.  

Dr. Rolando Arafiles can continue to practice medecine if he obtains additional training.  The board essentially substantiated the two nurses’ complaints regarding improper treatment of patients.  The Board also found that he tried to intimidate the two nurses.  

Dr. Arafiles was also indicted in January on charges of misuse of official information.  The charges allege that Dr. Arafiles asked the County Sheriff to investigate the two nurses after they complained anonymously to the TMB in 2009.  Both nurses were fired from the hospital where they had been employed for years. 

The nurses secured a settlement in their whistleblower lawsuit.  Now, they have the rare vindication of a ruling by a state agency. 

 SPC4 Omar Soltero was killed in Afghanistan recently.  He was assigned to the 10th Mountain Division and was serving in Wardek Province in Central Afghanistan.  He was killed by an Improvised Explosive Device (aka "roadside bomb").  See San Antonio Express News report.  His parents live on the northeast part of town.  He was in a relationship with another soldier and leaves behind two children. 

 A colleague in Oregon agrees with my post that settling discrimination cases requires a client (employer and employee) to deal in reality.  Joel Christiansen, who writes a nice blog on employment law, points out that emotional suffering can be supported by stories about missed mortgage payments.  It helps to discuss and consider these emotional topics.  But, as he cautions, Title VII does not provide direct reimbursement for mortgage payments.  So, do not draw a line in the sand for some particular dollar value.  See Joel’s blog post about settling employment cases.  

Social media is that new frontier we always hear about – or one of them anyway.  Some lawyers are still trying to understand the limits.  One lawyer in South Florida was upset about a judge, who he believed was circumventing the speedy trial requirements.  So, he posted a blog entry about a judge.  The judge would ask defendants if they would be ready for trial sooner than normal – apparently trying to avoid the speedy trial law.  The lawyer, Sean W. Conway, did more than discuss trial tactics.  He blastd the judge, making some personal attacks on her.  The Florida Bar Association found that the the lawyer’s blog entry violated Florida ethical rules regarding public comments about a judge’s integrity.  See ABA Bar Journal report.  Mr. Conway opposed the sanctions on the basis of the First Amendment.  The Florida Supreme Court rejected his argument.  The court issued Mr. Conway a public reprimand and a fine of $1250.  

And, we already know about a judge in North Carolina who had "friended" a lawyer on Facebook who was appearing in a case before the judge.  The two exchanged comments about the trial on FB during the trial.  That judge, Carleton Terry was issued a public reprimand.  See my prior post about this case. 

And, another lawyer in Illinois lost her job with the Public Defender’s office because she blogged about cases she worked on.  Lawyers should know not to reveal confidential information acquired from clients. 

These rules are not new.  The social setting is new.  The intimacy of online communication suggests a level of privacy that does not exist.  The best rule of thumb is to assume anything you publish on the web will be viewed by everyone.  So be careful out there…..

Arbitration is becoming a way of life for consumers, employees and many others.  Arbitration formerly was only used in the labor union context.  Now, arbitration clauses are everywhere, even at one Whataburger front door.  See my prior post.  

Arbitration makes more sense for the labor union context, because arbitrators have incentive to remain nuetral.  In arbitration, the two sides to a dispute choose an arbitrator.  Both sides are allowed a certain number of picks.  Eventually, the two sides end up with the arbitrator seen as least biased. That process does not work as well in the employment context.  In employment cases, there is no union.  You have one employee who is filing his/her first and only challenge to some employment action.  That one employee will never again pick an arbitrator.  That one employee will have little or no idea regarding prior history of potential arbitrators or possible bias.  The one employee is shooting in the dark. 

In Alim v. KBR, 2011 WL 61868 (Tex.App. Dallas 1/10/2011), we see one instance where a prior relationship leads to dismissal of an arbitration award.  The arbitrator, Scott Rosuck did not disclose that he had presided over a prior arbitration three years prior with KBR, with the same KBR attorney and with the same KBR representative.  Mr. Rosuck was required to disclose prior relationships, but did not mention the prior arbitration.  He did say at the beginning of the arbitration that he had "come across" the lawyer and representative before.  But, the Dallas court of appeals found that to be insufficient disclosure to put the employee on notice. 

Mr. Rosuck said he relied on memory to check prior conflicts.  It appears he had overlooked the prior arbitration with the same employer, the same employer’s representative and the same employer’s attorney.  Obviously, he needs a better system for checking potential issues.  The court found this oversight to be "inexcusable."  Mr. Rosuck could not even disclose how many arbitrations he had done with KBR in the past. 

But, the more important issue is prior arbitral awards.  This employee somehow learned of the prior arbitration with KBR, the same rep and the same attorney.  But, arbitration awards are not public records.  The real issue is that there is no systemic way for employees to check prior arbitration awards.  Unlike a lawsuit, where you can look in the district court records, we cannot learn that Scott Rosuck presided previously with the same persons. Unless the employee’s attorney gets lucky and calls the right employment lawyer who maybe, sort of remembers Scott Rosuck from three years before.  This is a system sure to lead to abuse. 

Arbitrations have been sold to employers as quicker, cheaper alternative to lawsuits.  We are finding out that they often are not cheaper or faster.  But, the real problem is the secrecy.  Judges have biases.  But, we lawyers and observers have some awareness of those biases.   Lawyers usually know.  But, arbitrators are different.  Arbitration awards are private and not available for review.  Biases reveal themselves only haphazardly or not at all.