Labor and Employment

"The group practices law the way it should be: the work is done well and on time, the attorneys write beautifully and know how to litigate. They are a joy to work with." 

- Client comment from 2010 Chambers USA Client's Guide to America's Leading Lawyers for Business. 

In previous years, the Guide has noted that our clients and competitors view our Labor and Employment Practice attorneys as "technically accomplished, incredibly bright, trustworthy, and deserving of a place on the ‘dream team.'" We are proud of this reputation, and believe it is these attributes that lead private and public employers throughout the country, as well as in Canada, Western Europe and South America, to consult us on a regular basis about their labor and employment issues.  

Representing Leading Companies and Emerging Leaders in Resolving Disputes Intelligently
Among Ryley Carlock & Applewhite's representative labor and employment clients are both public and private employers. We proudly represent:

Aditya Birla Company, Birla Carbon Group
Bank of America
Banner Health
Capstone Mining Corp.
Charles Schwab & Co.
Chino Mines Company
Chompie's Restaurants
City of Glendale
City of Surprise
Del Webb Corporation
Freeport McMoRan Copper and Gold
HEAD/Penn Racquet Sports
Intel Corporation
Knight Transportation
Lincoln Laser Company
Maricopa County, Arizona
Morgan Stanley DW Inc.
Safeway
State Farm
Tolt
Thames Water

A Comprehensive Range of Services

Our diversified client base includes banks, technology companies, securities dealers, builders, developers, manufacturers, mining firms, health care providers, public utilities, wholesalers and distributors, and governmental entities. Employers of all kinds turn to Ryley Carlock & Applewhite for assistance in the following areas:

 

1. Proactive Counseling
We believe in proactive labor and employment relations. Much of our practice is devoted to the following activities:

  • Counseling employers about their rights and obligations under federal, state and local labor and employment laws
  • Reviewing and preparing employee handbooks and policy manuals, overtime pay policies, and drug and alcohol testing policies that comply with state and federal laws
  • Training managers and supervisors in effectively administering policies and developing positive employee relationships
  • Developing practical and effective strategies for achieving our clients' overall labor and employment relations objectives

 

2.  Collective Bargaining and Labor Relations

We regularly represent management in collective bargaining negotiations, and counsel employers concerning their collective bargaining obligations and the administration of existing bargaining agreements. In this regard, members of our Labor and Employment Practice have served as lead negotiators and the principal architects of labor relations strategy for some of the nation's major business enterprises representing a variety of industries. Our lawyers have also overseen numerous representation proceedings, campaigns and elections under the National Labor Relations Act, and frequently assist employers in developing and implementing successful union avoidance strategies.

 

We also regularly represent employers in the following labor-related areas:

  • Strike and lockout situations
  • Strike contingency planning
  • Arbitration of disputes arising out of collective bargaining agreements and related litigation in federal courts
  • Defense of unfair labor practice charges and other administrative proceedings before the National Labor Relations Board
  • Prosecuting and defending appeals in unfair labor practice cases

 

3.  Arbitration and Litigation

Our goal is to assist clients in resolving personnel disputes without litigation. When needed, our attorneys are highly experienced in drafting and implementing predispute arbitration agreements. We have also enforced arbitration agreements in both court cases and arbitration proceedings involving various employment-related claims.

 

When litigation does arise, however, we represent management aggressively. Our experience includes:

  • A full range of employment discrimination, civil rights, wrongful discharge and other employment-related litigation at both the trial and appellate levels
  • Arbitration and mediation of employment disputes
  • State and federal administrative agency proceedings involving such disputes
  • Successful defense of claims under the state and federal wage and hour laws in both judicial and administrative forums

 

4.  Noncompete and Confidentiality Agreements

In today's business environment, trade secrets and customer lists can be among the most valuable assets of a company. Working closely with the firm's Business and Intellectual Property attorneys, we help preserve our clients' investments in their businesses and their employees by preparing agreements and policies protecting trade secrets and other confidential information, and preventing unwarranted competition from departing employees. We have successfully represented numerous employers in litigation against former employees, enforcing noncompete, nonsolicitation and confidentiality agreements.

 

5.  Benefits

Working in conjunction with attorneys in our firm's Employee Benefits practice, we help employers comply with the laws pertaining to the implementation and administration of employee benefit plans, both in the collective bargaining process and in nonunion employment settings. We are also experienced in arbitrating and litigating employee benefit claims and other disputes involving employee benefit plans.

 

6.  Appellate Advocacy

In effective appellate advocacy, persuasive legal writing and oral arguments are essential. Our lawyers have demonstrated success in successfully handling employment law appeals before various appellate bodies. In a practice which requires the finely tuned ability to review the record with a critical eye and determine the viability of an appeal, our attorneys are skilled at identifying, analyzing , understanding and communicating determinative legal and factual issues. With extensive experience, and attorneys who have argued before various United States Courts of Appeals as well as in state appellate courts, our team is well prepared to assist in appeals.

 

In addition to handling all aspects of appeals from trial courts to appellate courts, Ryley Carlock's appellate attorneys:

  • Prepare persuasive appellate motions and briefs on a variety of employment related topics
  • Counsel clients on federal and state appellate practice and procedure
  • Work with trial counsel to brief important legal issues, carefully craft jury instructions, address post-trial matters, and preserve issues for review
  • Work with attorneys in and outside of Arizona to pursue appeals in Arizona state and federal courts
  • Pursue and defend extraordinary writs (mandamus, prohibition, and procedendo)
  • Track state and federal appellate decisions for trends and developments on behalf of clients
  • Identify amicus curiae ("friend of the court") opportunities for trade associations, coalitions, and individual corporate clients
  • Prepare amicus curiae ("friend of the court") briefs

 

Impressive Results in Employment Cases
Labor and Employment attorneys at Ryley Carlock have successfully represented employers both in precedent-setting matters and in more "routine" employment cases. Among our notable labor and employment cases in federal and state courts throughout the United States are the following:

  • Successfully defended the employer in an action seeking to vacate an arbitration award under a collective bargaining agreement. The case firmly established the principle that Section 301 of the Labor Management Relations Act ("LMRA"), rather than the Federal Arbitration Act, provides the substantive standards for judicial review of arbitration awards arising under collective bargaining agreements. Int'l Chem. Workers Union v. Columbian Chems. Co., 331 F.3d 491 (5th Cir. 2003).
  • Represented the employer in a case holding that, in order for an employee to establish a claim of religious discrimination based upon her contention that her religious belief required her to attend a pilgrimage, she must prove that a temporal mandate was part of her bona fide religious belief. Tiano v. Dillard Dep't Stores, 139 F.3d 679 (9th Cir. 1998). Tiano has been relied upon by several other courts addressing comparable issues, and the case has also attracted the attention of a number of scholarly commentators.
  • Represented the employer in the first reported decision in which an Arizona court compelled an employee to arbitrate a statutory employment discrimination claim. Valdiviezo v. Phelps Dodge Hidalgo Smelter, 995 F. Supp. 1060 (D. Ariz. 1997). Like Tiano, the Valdiviezo case has been cited by other courts within Arizona and elsewhere, as well as by scholarly commentators.
  • Represented the employer in the first reported decision holding that compensatory damages are not recoverable in an employment discrimination action brought under the Arizona Civil Rights Act ("ACRA"). Espinoza v. Fry's Food Stores, Inc., 806 F. Supp. 855 (D. Ariz. 1990). In a case decided the following year, the Arizona Court of Appeals adopted the view of the Act first expressed by the federal district court in Espinoza.
  • Represented the employer in a case in which a federal court held that the statutory presumption against an award of attorneys' fees to prevailing employers in civil rights actions does not apply in cases involving the alleged breach of an employment contract. Moses v. Phelps Dodge Corp., 826 F. Supp. 1234 (D. Ariz. 1993). Courts in subsequent cases have increasingly permitted successful employers to recover attorneys' fees from their former employees in reliance on this principle.
  • Filed an amicus brief in support of the employer's position in a case in which the Arizona Court of Appeals refused to recognize a tort claim for wrongful failure to hire in violation of public policy. Burris v. City of Phoenix, 179 Ariz. 35, 875 P.2d 1340 (App. 1993). Appellate courts in Arizona and other states have subsequently relied upon the analysis in Burris in refusing to extend the common law wrongful discharge claim beyond the discharge context to permit employees to challenge lesser disciplinary actions.
  • Represented the employer in a case of first impression nationally in which a federal court held that prejudgment interest cannot be recovered in cases arising under the Age Discrimination in Employment Act ("ADEA"). Buffington v. Phelps Dodge Mining Co., 800 F. Supp. 951 (D.N.M. 1992).

 

We also participated in the following cases of considerable importance to the employers we represented:

  • Successfully defended the employer in one of the first employment cases arising under the anti-retaliation provisions of the Sarbanes-Oxley Act. Halloum v. Intel Corp., 24 Indiv. Empl. Rts. Cas. (BNA) 50 (2006).
  • Successfully defended a municipal employer from a claim for overtime compensation and merit pay increases asserted by legal advisors in its police department. Kavanagh v. City of Phoenix, 87 F. Supp. 2d 958 (D. Ariz. 2000), aff'd, 25 Fed. Appx. 516 (9th Cir. 2001). The federal district judge who adjudicated the claims made a point of noting in his decision that we had "thoroughly, skillfully, and professionally" represented our client's interests.
  • Represented the employer in an action in which a federal court ordered arbitration of a former employee's First Amendment claims under the employer's alternate dispute resolution policy, and dismissed the former employee's action. In so doing, the court held that the employer's opt-out procedure for implementing the dispute resolution policy was enforceable. McGill v. Rural/Metro Corp., 17 Indiv. Empl. Rts. Cas. (BNA) 473 (N.D. Miss. 2001).
  • Successfully defended the employer against a claim by a group of its employees for overtime compensation under the Portal-to-Portal Act. Abeyta v. Phelps Dodge Corp., 3 Wage & Hour Cas. 2d (BNA) 1422 (D. Ariz. 1997), aff'd, 141 F.3d 1173 (9th Cir. 1998).
  • Successfully defended the employer against an age discrimination and retaliation claim under the ADEA and against related common law tort and contract claims. Cardwell v. Intel Corp., No. 99-0532-PHX-MHM, 2002 U.S. Dist. LEXIS 19273 (D. Ariz. Sept. 18, 2002), aff'd, 83 Fed. Appx. 956 (9th Cir. 2003).
  • Successfully defended a sexual harassment claim in which the plaintiff alleged that the employer terminated her after she experienced unwelcome sexual conduct by a coworker. Lechtenberger v. Phelps Dodge Morenci, Inc., 76 Fair Emp. Prac. Case (BNA) 1744 (D. Ariz. 1998).
  • Represented the employer in a case in which a federal district court dismissed a claim of wrongful denial of severance benefits under federal law, and the state court after remand dismissed related state law breach of employment contract and emotional distress claims. Capurro v. Bank of America, CV 93-01969 (2d Jud. Dist. Nev. 1996), appeal dismissed, 113 Nev. 1615 (1997).
  • Represented the employer in a case absolving the employer of liability for a hostile work environment, and finding that the employer discharged the employee for valid nondiscriminatory reasons. Cox v. Phelps Dodge Corp., CIV-91-590 (D.N.M. 1991), aff'd, 43 F.3d 1345 (10th Cir. 1994).
  • Represented the employer in a case in which an arbitrator held that an employee was bound by an agreement to arbitrate contained in her employment application, and that she failed to establish that she was retaliated against in violation of the ACRA because the performance problems that resulted in her discharge existed both before and after her expressions of concern about conduct she allegedly viewed to be discriminatory. Security Pacific Bank, 100 Lab. Arb. (BNA) 145 (1992) (Forbes, Arb.).
  • Represented the employer in a case alleging breach of employment contract and won an award of attorneys' fees in connection with the successful defense. Thurston v. Citizens Utils. Co., CV-91-01857-CAM, 1995 U.S. Dist. LEXIS 22390 (D. Ariz. 1991), aff'd, 91 F.3d 155 (9th Cir. 1996). Successfully defended the employer from a claim asserted under Montana's relatively unique state wrongful discharge statute. Fortman v. Decker Coal Co., 793 F. Supp. 255 (D. Mont. 1989), aff'd, 927 F.2d 610 (9th Cir. 1990).

 

Significant Labor-Management Relations Experience
Our traditional labor practice is equally impressive. We represented employers in the following significant labor management relations matters:

  • Successfully defended the employer against an unfair labor practice complaint alleging bad faith bargaining in connection with termination of mandatory dues and dues checkoffs for union represented employees. Phelps Dodge Specialty Copper Prods., 337 N.L.R.B. 455 (2002).
  • Represented the employer in an action under Section 301 of the LMRA regarding the procedural arbitrability of more than 150 grievances submitted by a union under a collective bargaining agreement, which resulted in the dismissal of all of the grievances at issue. Accuride Corporation v. UAW Local 2036, 4:99-CV-53(M) (W.D. Ky. 1999).
  • Successfully defended the employer in an action seeking to compel arbitration on the merits of grievances that the employer contended were barred for procedural reasons under the parties' collective bargaining agreement. When the arbitrator subsequently reviewed the employer's procedural arguments, most of the Union's claims were dismissed. Phelps Dodge Magnet Wire v. UAW Local 1807, 5:01-CV-00116J (W.D. Ky. 2003).
  • Successfully defended 27 out of 28 unfair labor practices charges and maintained a lawful lockout for over three years during negotiations with a large international union that included substantial improvements for the employer in a series of revised proposals that the National Labor Relations Board consistently determined were lawful.
  • Filed and successfully advocated an unfair labor practice charge against a union that attempted to repudiate its collective bargaining agreement with an employer, resulting in an NLRB approved settlement that included a notice posting by the union and its agreement not to attempt to repudiate the agreement again in the future.
  • Represented an employer in approximately 40 Board–conducted decertification elections in which the employees rejected continued union representation and chose to work directly with the employer with respect to all of their terms and conditions of employment.
  • Have represented employers in successfully negotiating industry-leading collective bargaining agreements with flexible management rights provisions with the International Brotherhood of Teamsters, the International Chemical Workers, the International Union of Electronic, Electrical, Salaried, Machine and Furniture Workers, the United Steelworkers of America, the United Auto Workers, and other unions.

 

Attorney Credentials and Expertise

Our attorneys are widely recognized for their expertise in the labor and employment law field. We are known for our efforts to keep the management and legal communities apprised of significant developments in employment and labor relations law. In addition to publishing our own periodic newsletter for clients and friends of the firm, members of the firm's Labor and Employment Practice engage in extensive external publishing and other continuing education pursuits.

 

Among the accomplishments of our Labor and Employment Law attorneys are the following:

  • Nate Niemuth and Mike Moberly have been recognized as leading national labor and employment lawyers in the Chambers USA Guide to America's Leading Business Lawyers, and Nate and Mike received similar recognition in Woodward White's "The Best Lawyers in America."
  • Mike Moberly is an elected Fellow in the prestigious American College of Labor and Employment Lawyers.
  • Mike Moberly contributed to annual and cumulative supplements to SCHLEI & GROSSMAN, EMPLOYMENT DISCRIMINATION LAW, another influential treatise that has occasionally been described as the "bible" of federal employment discrimination law.
  • Mike Moberly was a contributing author of a respected employment law text published by the National Employment Law Institute, EMPLOYMENT-AT-WILL: A 1989 STATE-BY-STATE SURVEY.
  • Mike Moberly and Andrea Lisenbee are contributing authors to, and Mike serves on the Editorial Board of, the ARIZONA EMPLOYMENT LAW HANDBOOK, a comprehensive two-volume treatise addressing all aspects of employment law in Arizona.
  • Andrea Lisenbee served as a chapter contributor to the most recent edition of ELKOURI & ELKOURI, HOW ARBITRATION WORKS, an authoritative treatise on labor arbitration.
  • Mike Moberly served, throughout its existence, as an editor of THE ARIZONA LABOR LETTER, a periodical devoted to keeping Arizona employers apprised of recent labor and employment law developments.
  • Nate Niemuth, Mike Moberly, and Andrea Lisenbee have published law review articles addressing unsettled labor, employment and litigation-related topics. Several of their articles have been cited as pertinent authority by courts in jurisdictions throughout the country.

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