KDC wishes to congratulate KDC's Past President, Beth Lochmiller, on receiving the DRI's Kevin P. Driskill Award for Outstanding State Representative.   Beth was presented with the award at the 2019 DRI Annual Meeting Awards Dinner in New Orleans. 

KDC is pleased to announce the following individuals were selected as this  year's KDC award recipients:

• Diplomat - James D. Harris of Kerrick Bachert, PSC, Bowling Green
  
• Defense Lawyer of the Year - James A. Sigler of Keuler, Kelly, Hutchins, Blankenship & Sigler, LLP, Paducah
• Young Lawyer - James P. Landry of Keuler, Kelly, Hutchins, Blankenship & Sigler, LLP, Paducah

These three individuals will be recognized at the KDC Awards Luncheon on November 15, held in conjunction with the KDC Fall Seminar. 

          

CONGRATULATIONS TO EACH OF YOU!!

Kentucky Defense Counsel is pleased to announce that two recent decisions of the Supreme Court of Kentucky aligned with amicus curiae briefs submitted by KDC.

Ashland Hospital Corp. v. Lewis , 2018-SC-276 (rendered 8/29/19), involved a medical malpractice claim in which the Court of Appeals reversed the trial court’s grant of summary judgment in favor of the physician and hospital defendants. The trial court had found that the plaintiff could not establish a prima facie case of negligence due to insufficient evidence of causation. The Court of Appeals reversed after concluding that expert testimony was not needed to support causation. The Supreme Court granted discretionary review, reversed the Court of Appeals, and reinstated the summary judgment in favor of the defendants after finding that causation evidence was necessary and that the doctrine of res ipsa loquitur did not apply. KDC’s amicus brief was authored by Melissa Thompson Richardson, Elizabeth Bass and Katie Haagen of WMR Defense. KDC members who successfully represented the defendants in the case were Mitchell Hall, Keri Hieneman and Alexis Orlando Gonzalez-Lopez of VanAntwerp Attorneys, LLP (counsel for Ashland Hospital), and Kenneth Williams, Jr., David Latherow and Geoffrey Marsh (counsel for Paul Wesley Lewis, M.D.). The decision was designated for publication in the South Western Reporter and became final on September 24, 2019.

In Waugh v. Parker, 2018-SC-405 (rendered 9/26/19), the Court ruled in favor of the defense in a landlord/tenant case and affirmed dismissal of the tenant’s personal injury claim under common law principles rather than permitting the plaintiff to assert a negligence per se claim premised on provisions of the Uniform Residential Landlord and Tenant Act. KDC’s amicus brief was authored by Joey Wright of Thompson Miller & Simpson PLC and Andrew Yocum of Kriz, Jenkins, Prewitt & Jones, PLC. KDC members who represented the defendants were Berlin Tsai and Joe Hummel of Lynch Cox Gilman & Goodwin, P.S.C. The decision was designated for publication in the South Western Reporter but is not final as of the date of this report.

Congratulations to all of the authors, and an additional thanks to the officers of KDC’s Amicus Committee who worked with them: David Kramer (Chair) and Aaron Silletto and Bill Orberson (Vice-Chairs).

KDC welcomes its newest member:

Patrick D. Pace of Kamuf, Pace & Kamuf, Owensboro, is a graduate of the University of Kentucky College of Law.  Mr. Pace practices in the areas of Civil Rights, Contract, Employment, General Liability, Municipal, Tort and Utilities.  He is a member of DRI.

KDC welcomes its three newest members:

Seth Thomas Church of Bell Orr Ayers & Moore, PSC, Bowling Green is a graduate of Emory University School of Law.  Mr. Church practices in the areas of Appellate, Auto, Bad Faith, Business Litigation, Civil Rights, Commercial, General Liability, Government Entity, Premises Liability and Tort.  He is sponsored by KDC Vice President, Paul Lawless.

Edward Tyler Suttle of Williams & Towe Law Group, PLLC, London is a graduate of the University of Dayton.  Mr. Suttle practices in the area of insurance defense.  He is sponsored by KDC member, John Kelly.

Jason Eric Williams of Williams & Towe Law Group, PLLC, London is a graduate of the University of Northern Kentucky Chase College of Law.  Mr. Williams practices in the area of Tort, and is sponsored by KDC member, John Kelly.

NLRB Issues New Decision Adopting 3 Part Test for Analyzing Bargaining Unit Scope Disputes

September 11, 2019– Legal Alerts

Christopher M. Jones and Brian J. Moore/Dinsmore & Shohl, LLP

On Monday, Sept. 9, 2019, the National Labor Relations Board (NLRB) issued its decision in The Boeing Company and International Association of Machinists and Aerospace Workers, adopting a three part test for determining whether a bargaining unit is appropriate under the analysis set forth in PCC Structurals, Inc., 365 NLRB 160 (2017). Applying the three part test, the NLRB reversed a regional director’s decision approving a petitioned-for unit because the unit did not share a community of interests and the unit’s interests were not distinct from excluded employees.

Background

On May 21, 2018, the NLRB regional director issued a Decision and Direction of Election finding that a petitioned-for unit at The Boeing Company’s (Employer) South Carolina production facility was appropriate under PCC Structurals, Inc. The petitioned-for unit consisted of two classifications of employees within the Employer’s production line of the 787 aircraft: flight-line readiness technicians (FRTs) and flight-line readiness technician inspectors (FRTIs). These classifications include approximately 178 of the 2,700 production and maintenance employees at the facility and are responsible for performing and inspecting various work on the Flight Line. On May 31, 2018, the election took place, and the petitioner prevailed. On June 12, 2018, the regional director issued a Certification of Representative, which the Employer opposed. 

The NRLB Decision

On review, the NLRB determined the petitioned-for unit was inappropriate under the PCC Structurals, Inc. decision and reversed the decision of the regional director. The NLRB began by setting forth a three-step analysis for determining whether a petitioned-for unit is appropriate under the PCC Structurals, Inc. decision as follows: (1) the proposed unit must share an internal community of interest; (2) the interests of those within the proposed unit and the shared and distinct interests of those excluded from that unit must be comparatively analyzed and weighed; and (3) considerationConsideration of the board’s decisions on appropriate units in the particular industry involved. If the petitioned-for unit is found to be inappropriate at any step, the inquiry ends.

Applying the three part test, the NLRB determined the petitioned-for unit was inappropriate under steps one and two. First, the NLRB found the employees in the petitioned-for unit did not share a community of interest. In particular, the NLRB noted FRTs and FRTIs: (1) belong to separate departments; (2) do not share any supervision with each other; and (3) have fundamentally different job functions. Accordingly, the NLRB concluded there was no community of interest that would support a bargaining unit. Second, the NLRB determined the petitioned-for unit’s interests were not sufficiently distinct from the interests of the excluded employees to warrant a separate bargaining unit. In particular, the NLRB identified numerous similarities between FRTs, FRTIs, and the excluded employees, including: (1) FRTs and FRTIs are integrated into the production line with the excluded employees; (2) FRTs, FRTIs, and the excluded employees work together to produce a single product; and (3) FRTs and FRTIs are in the same departments as excluded employees. Further, the NLRB noted the distinguishing factors were largely insignificant in the context of collective bargaining.  Overall, the NLRB concluded the interests shared by FRTs and FRTIs with excluded employees were far more significant than those that differentiated them. 

Accordingly, the NLRB vacated the Certification of Representative and dismissed the petition. 

IMPACT

It is important to note the foregoing opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. It may also be appealed to the appropriate U.S. court of appeals and, ultimately, to the U.S. Supreme Court.

The NLRB’s decision in The Boeing Company and International Association of Machinists and Aerospace Workers provides clear guidance on the process and factors for determining whether a petitioned-for unit is appropriate under the National Labor Relations Act and PCC Structurals, Inc. Further, the decision makes abundantly clear unions cannot isolate small subsections of a larger workforce to form bargaining units without good reason for doing so, i.e., unless the proposed group has its own community of interest and unique bargaining concerns.

For more information regarding compliance with this decision, please contact your Dinsmore labor attorney.

For those of you who are members of DRI, turn to page 78 of the September 2019 edition of For the Defense where you will find an article authored by two KDC members:  W. Mitchell Hall, Jr.  (Immediate Past President of KDC) and Olivia Amlung.  Great job to both Mitch and Olivia!

If you are not a member of DRI, you can download the article here.  Using Int Ext Data.pdf  After reading the article, we think you will be compelled to also join DRI.  DRI is an international organization of civil defense attorneys that we align with as a state legal defense organization.  Being a member of both organizations can be only a positive for your civil defense practice.

KDC is pleased to welcome its two newest members:

Bryce L. Cotton of Blackburn Domene Burchett PLLC, Louisville is a University of Louisville Brandeis School of Law graduate.  Mr. Cotton practices in the areas of Auto, General Liability, Medical Malpractice, Nursing Home, Premises and Tort.  He is sponsored by KDC member, Katelyn C. Becker.

Megan E. H. Jordan of Brown & Breeding, PSC, London is a graduate of the University of Kentucky Law School.  Ms. Jordan practices in the areas of Auto & Trucking.  She is sponsored by KDC member, Bradford Breeding.

KDC is pleased to welcome:

Justin T. Baxter of Kinkead & Stilz, PLLC, Lexington.  Mr. Baxter is a graduate of the Pace University School of Law and Practices in the areas of Appellate, Construction, Medical Malpractice, Professional Liability and Tort.  He is a member of DRI and is sponsored by KDC member, Melanie Marrs Sublett.

Bryce C. Rhoades of Adams, Stepner, Woltermann & Dusing, PLLC, Covington.  Mr. Rhoades is a graduate of the Chase College of Law and practices in the areas of Civil Rights, Government Entity, and Municipal law.  He is sponsored by KDC President-Elect, Claire Parsons.

KDC welcomes its two newest members.

Matthew Cook of Kerrick Bachert, PSC, Bowling Green is a graduate of the University of Louisville, Brandeis School of Law.  Mr. Cook practices in the areas of Appellate, Bad Faith, Business Litigation, Civil Rights, General Liability, Government Entity, Insurance Coverage, Medical Malpractice, Municipal, Premises Liability, Product Liability and Tort.  He is a member of DRI and is sponsored by Tom Kerrick.

Joshua Johnson of Piper & Bowers, PSC, Lexington is a graduate of the University of Kentucky Law School.  Mr. Johnson practices in the area of Medical Malpractice and is sponsored by KDC member, Barbara Bowers.