Archives for August 2014

August 2, 2014 – A New York federal judge has found Dimitrio Tsirkos, a former Mister Softee franchisee, in contempt for failing to comply with a June order barring him from using decals on his trucks that are “confusingly similar” to Mister Softee’s trademarks and with an earlier contempt order, which had ordered him to turn over profits and provide the license numbers of trucks that were in violation of the injunction.

Mister Softee had asked that Tsirkos be held in criminal contempt, and that the US Marshalls be directed to seize his trucks, but Judge Laura Taylor Swain, of the Southern District, opted for civil contempt.  She also ordered him to file an affidavit by August 12th disclosing all retail ice cream sales in the Master Softee trucks and the trucks’ license plate numbers. Failure to file the affidavit, the Judge ruled, would lead to Tsirkos’ arrest.

Mister Softee launched its lawsuit against Tsirkos on March 20, claiming that he had violated contractual language barring him from competing with the company after his franchise agreement was terminated and that he was committing blatant trademark infringement with his trucks, which feature a similing sugar-cone figure with a blue jacket, similar to the Mister Softee logo.

For more information about CASTAYBERT PLLC’s intellectual property practice, click here.

August 1, 2014 – This past week, the National Labor Relations Board maintained that women’s shoe sales associates from two different departments within Bergdorf’s New York store could not constitute one single micro-bargaining unit.  The unanimous decision in Neiman Marcus Group, Inc. d/b/a Bergdorf Goodman, 361 N.L.R.B. No. 11 (July 28, 2014), which affects 35 employees in the store’s Salon shoe department and 11 in the Contemporary shoe department, hinged on the employees’ lack of a “’community of interest.”  The board pointed out that the employees worked in separate departments, had different job classifications, and reported to different supervisors.  Retail employers seeking to prevent certification of interdepartmental micro-bargaining units can take away important lessons from this decision.

A COMMUNITY OF INTEREST

To constitute an appropriate bargaining unit, not only must the employees concerned be readily identifiable as a group, they must also share a community of interest.  While the board recognized that the employees were identifiable as a group because of their function – women’s shoe sales associates – it found that they did not share sufficient criteria to fully constitute a community of interest.  The employees were organized into different departments; there was no interchange between the two departments; and the employees had limited contact with each other.  The NLRB pointed out that the Salon employees did not report to the same supervisors as those in Contemporary, and cited a lack of evidence that Salon and Contemporary employees share any distinct skills or received specialized training beyond the general orientation program.  Thus, NLRB concluded:

[While] some factors favor a finding of community of interest, they are ultimately outweighed, on these facts, by the lack of any relationship between the contours of  the proposed unit and any of the administrative or operational lines drawn by the Employer (such as departments, job classifications, or supervision), combined with the complete absence of any related factors that could have mitigated or offset that deficit.

The NLRB contrasted its recent decision regarding a petition in Macy’s Inc., 361 NLRB No. 4 (July22, 2014).  In that earlier decision, the board affirmed an acting regional director’s decision that employees in a Macy’s department store’s cosmetics and fragrance department constituted an appropriate micro-bargaining unit.  In Macy’s, the two sets of employees worked in the same department, were directly supervised by one manager, sold cosmetics and/or fragrances, had limited contact with other sales employees and had the same commission-based pay structure and benefits.

STEPS TO PREVENT MICRO-UNITS

While the NLRB will allow micro-bargaining units within the workplace when a community of interest can be established by the employees, there are steps to reduce the likelihood of such a finding:

  • Employees in different departments should not share direct supervisors.
  • Stores should discourage the “sharing” of employees across departments.
  • Specialized training of employees in a department should be done separately from other departments.

For more information about this and other NLRB decisions, visit the NLRB website.

To learn how CASTAYBERT PLLC can assist you with employment matters, explore our Employment Law Practice Area.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

A new Rule 9 took effect June 2, 2014 in the Commercial Division of the New York State Supreme Court that stands to speed up pre-trial proceedings, and ease the complications associated with e-discovery.  The new rule allows parties to consent to accelerated pre-trial procedures, which could dramatically shorten the calendar for all types of litigations other than class actions.

Under Rule 9, when parties consent, “all pre-trial proceedings, including all discovery, pre-trial motions and mandatory mediation” will conclude within nine months of the filing of a Request for Judicial Intervention.  The new rule also seeks to reduce disputes by requiring parties to produce electronic documents in searchable format.  The rule imposes sanctions such as the denial of discovery or the imposition of reasonable production costs if the “costs and burdens of e-discovery are disproportionate” to the nature of the dispute, the amount in controversy, or the relevance of the materials requested.

Separately, the Commercial Division has proposed a rule that would impose on non-parties certain e-discovery “guidelines” designed to promote efficiency, early assessment of burdens on non-parties, to identify costs borne by the requesting party, and to encourage the resolution of disputes without court involvement. The new rule would not modify existing case law or replace any related rules.

For the full text of Rule 9, click here.  For more information about, and news from the Commercial Division of the New York State Supreme Court, visit their website.

To learn about how CASTAYBERT PLLC can assist you with e-discovery, click here.

 

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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