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arbitration

Council will decide when charter amendment votes will be

Fine, but they should be this year.

Mayor Sylvester Turner

Mayor Sylvester Turner on Wednesday promised to bring a charter amendment petition to City Council before a key August deadline to order an election for this year.

A diverse coalition of groups, including the Houston Professional Firefighters Association Local 341 and the Harris County Republican Party, delivered the petition in April, and the city secretary confirmed the signatures earlier this month. The measure would allow any three council members to place an item on the council agenda, a power almost entirely reserved for the mayor under the city’s strong-mayor format.

The council can put the charter amendment on the ballot this November or during the next city elections, which are in November 2023. Turner said he was not sure the city would order an election this year, prompting concern among petition organizers and supporters, who have sought an election in November. The last day to order an election for this year is Aug. 16.

“It will come before you, and this council will decide whether it goes on this year’s ballot or on the next city ballot,” Turner told his colleagues at the City Council meeting Wednesday. “I won’t be making that decision, we will be making that decision.”

The fire union is pushing a separate charter petition, which it delivered to City Hall last week, that would make binding arbitration the automatic resolution to contract impasses. The city and union have been in a deadlock since 2017, and have contested the contract talks in court battles.

[…]

The mayor said the city has to decide if it is going to take each charter petition individually, or if it would be smarter to lump them together in a single election, “which, from a cost perspective, would be quite wise,” he said.

“What we will have to decide is whether or not you do these one at a time, and every time you put it out there it’s a cost to the city (to run the election),” Turner said. “Now, there’s another one that was just delivered to the city secretary (last) week… Let’s say that gets the requisite signatures, do we do another election on that one?”

The fate of the most recent petition from the fire union is less clear. Turner said it takes the city secretary an average of three months to count the signatures, even with added personnel the mayor says he has approved for their office. That would mean workers likely will not finish verifying them before the Aug. 16 deadline to order an election.

The union has alleged the city is slow-walking the count for the second petition. The Texas Election Code allows the city to use statistical sampling to verify the signatures, instead of vetting them individually, as the city is doing now.

See here and here for the background. Sampling has been used before, in 2003 for a different firefighter initiative, but I don’t think it is commonly used. Not sure what the objections are to that. I say do them both in the same election, and it should be this election. I’d rather just get them done, if only from a cost perspective.

Charter amendment referendum likely #2 on its way

Pending signature verification.

The Houston firefighters’ union says it has collected enough signatures on a petition to make it easier to bring contract talks with the city to binding arbitration.

The city secretary now must verify at least 20,000 signatures, the minimum threshold for getting a petition-driven initiative on the ballot. The petition drive is one of two the Houston Professional Fire Fighters is pushing for this November, along with one that would give council members more power to place items on the City Council agenda.

The city secretary verified signatures for the first petition, filed in April, last week. A broader coalition is advocating for that proposal, as well.

The union has said it hopes to place both items on the November ballot, although Mayor Sylvester Turner has signaled the city may not comply with those wishes. The mayor said last week a required council vote to place the items on the ballot may not happen this year.

“There is no obligation, I think, on our part to put anything on the ballot for this year,” Turner said then.

State law does not lay out a specific timeline for when council must take that vote, though it does require it to do so. The last day to order an election for November would be Aug. 16.

When the council does vote, it has two options for selecting the date: the next uniform election date, which would be November 2021; or the next municipal or presidential election, whichever is earlier. That would be the November 2023 in this case.

Marty Lancton, president of the Houston Professional Fire Fighters Association Local 341, said it does not matter whether the city is allowed to push off the election; it should respect the will of the petitioners and place the initiative on the November ballot. He said the union is prepared to go to court to get the charter amendments on the ballot this year.

See here for more about the other charter amendment referendum. I’m inclined to support this one, but I haven’t paid much attention to it yet so I’ll want to hear more before I make a final decision.

As for when to have the referendum, I’ll just say this much: Baseline turnout in 2021, a non-municipal election year, where the only items that will be on everyone’s ballot are the constitutional amendments (none of which are exactly well known at this point) and only some people will have actual candidates to vote for, is about 50K. Baseline turnout in 2023, when there will be an open seat Mayoral race, is at least 200K, probably at least 250K. Turnout in 2015, with HERO repeal also on the ballot, was over 270K, and in 2019, with the Metro referendum also on there, it was over 250K.

Point being, in 2021 you start with the hardcore voters, who have probably heard something about your issue and whose support you hope to earn, and seek to get lesser-engaged folks who agree with you to show up. In 2023, you have to put a lot more effort into persuasion, just because so many more people will be casting ballots, and many of them will start out knowing nothing about the issue. A lot of those less-engaged voters from scenario #1 are more likely to show up because of the Mayor’s race. Your message here is one part about introducing them to your issue, and one part about voting all the way down the ballot, because the charter amendments are at the bottom and you want to make sure they don’t miss them.

Given that, it’s a reasonable question to ask which environment you’d rather be in for the purpose of passing your referendum. It’s not clear that one is inherently more advantageous than the other, but the strategy for each is different. Needless to say, the 2023 scenario is more expensive, though a sufficiently funded referendum effort can have a significant effect on turnout, even in a 2023-type situation. The platonic ideal is for higher turnout since that is a truer reflection of the will of the people, but you want your item to pass, and you play the hand you’re dealt.

Now having said all that, I think if the petition signatures are collected and certified in time for the item to be on the next ballot, that’s when it should be voted on. I don’t know what Mayor Turner’s motivation may be for preferring to wait until 2023, which he is allowed to do. I just think we should have the votes this year.

Luhnow lawsuit dismissed

Nothing left to litigate about, apparently.

Did not age well

Former Astros general manager Jeff Luhnow’s lawsuit against the ballclub was dismissed on Friday after both parties “resolved their differences,” severing the final tie between the team and its most successful executive in history.

District Court Judge Kyle Carter granted the motion, which was filed jointly in 125th State District Court on Friday. Karl Stern, the attorney who submitted on behalf of Luhnow, did not respond when asked for further comment. An attorney representing the Astros did not return a request for comment.

Luhnow sought more than $20 million in damages in the breach of contract lawsuit he filed in November. The 54-year-old Luhnow claimed he was the “scapegoat” for a sign-stealing scandal that tarnished Houston’s 2017 World Series title.

[…]

Luhnow’s contract called for “any dispute” in the application of its terms to be resolved by “arbitration by the commissioner or the commissioner’s designee,” but Luhnow’s attorneys argued it was unenforceable in their suit due to commissioner Rob Manfred’s role in Luhnow’s dismissal. Manfred wrote MLB’s investigative findings into the sign-stealing scheme.

Luhnow’s lawyers said it would be a “complete sham” to allow Manfred or his designee in any arbitration hearing and called for an independent arbiter to preside. It is unknown whether arbitration occurred to cause the suit’s dismissal, but lawyers unaffiliated with the case surmised that was always a likely outcome.

“Arbitration is confidential. It is outside the public purview and accompanied by orders that make the proceedings secret,” Michael Lyons, of the Dallas firm of Lyons & Simmons, said in November. “Filing suit is a way for Jeff Luhnow to clear the air from a PR standpoint and get his story out in a way he might not otherwise have been able to do.”

See here and here for the background. I don’t really care what happens to Jeff Luhnow, but I feel like once I start blogging on a topic, I should see it through. Also, mandatory arbitration clauses are bad. I think that about covers it.

More on the Luhnow lawsuit

Because I now have the brain space to think about stuff like this again.

Did not age well

While baseball fans and courtroom voyeurs might long for a public legal showdown between Astros owner Jim Crane and former general manager Jeff Luhnow, attorneys say the more likely outcome of their contract dispute over Luhnow’s firing is a quiet, secretive resolution behind the protective wall of private arbitration.

Three Texas attorneys were united on that point of view Monday after examining the 18-page breach of contract lawsuit filed by Luhnow against the ballclub before Texas 125th District Judge Kyle Carter.

Luhnow alleges that Crane violated his contract by firing him in January after he was suspended for a year by Major League Baseball commissioner Rob Manfred. Crane’s decision, Luhnow says, denied him benefits that include $22 million of his $31 million contract plus bonuses and a guaranteed slice of the ballclub’s profits.

While the bulk of the complaint alleges a plot by the Astros and MLB to scapegoat Luhnow as the villain of the 2017-18 sign-stealing scandal, attorneys say its most critical point is in the 34th of 43 paragraphs, which says Luhnow is required to submit contract disputes to arbitration “by the commissioner or the commissioner’s designee.”

“Jeff Luhnow will have a very difficult time defeating the arbitration agreement clause,” said Rogge Dunn, a Dallas attorney who has represented former Orioles manager Buck Showalter, Texas Tech University and a former Baylor University Title IX oversight director in employment law cases.

Luhnow’s attorneys say it would be a “complete sham” for Manfred to have a key role in arbitrating disputes in which he is a central figure. The lawsuit asks Carter to submit the case to a jury or to appoint an arbitrator of his own choosing.

“His point is that this is an inside deal,” Dunn said. “The commissioner will protect the owner and scapegoat me, and he also gets to appoint the arbitrator, who will know on whose bread is being buttered.”

Mike Muskat, a partner with the Houston firm Muskat, Mahony & Devine, said Texas law is “very favorable toward enforcement provisions,” which decreases the prospect Luhnow can avoid an arbitration proceeding in which MLB gets to pick the arbitrator.

“I’ll give (Luhnow’s attorneys) credit for a creative argument, but the law is pretty solid,” Muskat said. “There’s a pretty high hurdle to avoid arbitration based on the selection of the arbitrator.”

See here for the background, and there’s a copy of the lawsuit embedded in the story. I’ll say this much, if Luhnow turns this into a crusade against mandatory arbitration clauses in employment agreements, even if it’s for the most self-interested of reasons (*), I will regain a modicum of respect for him. He’s right that this kind of forced arbitration is a scam that greatly benefits employers – and businesses in general when we’re talking about other types of service agreements – but the fight needs to be bigger than this. You can do it, Jeff!

(*) Money is very much the motivating factor here, as there’s over $30 million at stake. If the Astros can fire Luhnow for cause, instead of firing him for being a loser, as is the case most of the time when managers/GMs are canned, then they don’t owe him any of the money he was to be paid in his contract. Whatever else you may think of Luhnow, he’s not an idiot.

No arbitration

And we’re on to the next phase of the firefighter pay battle.

The Houston Professional Fire Fighters Association on Tuesday asked Mayor Sylvester Turner to enter arbitration to settle its ongoing labor dispute with the city, a request the mayor shot down as he called instead for a return to collective bargaining.

The union’s request came less than a week after a state district judge ruled Proposition B unconstitutional and void. The charter amendment approved by voters last November granted firefighters the same pay as police of corresponding rank and seniority.

Turner made clear Tuesday that he does not intend to accept the union’s request.

“The city of Houston is willing to return to the table for collective bargaining which would be the regular course of business,” the mayor said in a written statement.

[…]

Fire union President Marty Lancton said the mayor had yet to contact the union about sitting down to negotiate anew. He repeatedly has questioned Turner’s claim that the city could not afford Prop B, and on Tuesday cast doubt on Turner’s willingness to negotiate a “fair raise” for firefighters.

Arbitration, Lancton contended, would resolve the pay dispute before Houston’s 2020 fiscal year starts July 1.

“This is a sensible solution,” Lancton said. “We continue to wait for the call that the mayor says he is willing to make. Let’s resolve this now, mayor.”

Turner spokeswoman Mary Benton said the union “knows how to reach the mayor,” and repeated Turner’s statement that his “door is open and he is ready and willing to meet with the fire union.”

So if I’m interpreting this correctly, the Mayor is offering to go back to the collective bargaining process, while the firefighters are saying instead let’s take our respective offers and present them to an arbitrator and let that person make the call. I’m not quite sure what to make of that. I suppose this is the HPFFA’s way of saying they trust the city to negotiate in good faith. If so, all I can say is that the city could say the same about the firefighters. Whatever the case, we’re now at a standoff about how to go about resolving the larger standoff. The firefighters can claim that they have the will of the voters on their side, but unless they win their appeal of the summary judgment declaring Prop B unconstitutional, that only means so much. In the meantime, I’m going to find my happy place and practice some deep breathing.

Texans cheerleader lawsuit update

Couple points of interest here.

A former Texans cheerleader who says cheer director Alto Gary derided her as “skinny fat” and applied duct tape to her stomach before a 2017 game added her name Friday to one of two lawsuits filed against the team over payment and workplace issues.

Angelina Rosa, a two-year member of the cheerleading squad who said she also was a dancer for the Chicago Bulls and a member of the Astros’ Shooting Stars group, is the 10th cheerleader to join one of two suits filed against the team in Houston federal court.

Rosa is the sixth former cheerleader to sign on as a plaintiff in a lawsuit filed by women’s rights attorney Gloria Allred and Houston attorney Kimberly Spurlock. Four have joined a suit filed by Houston attorney Bruse Loyd seeking class action status.

While descriptions of the duct-taping incident were included in both lawsuits, Friday was the first time that Rosa was identified as the affected cheerleader.

[…]

Both lawsuits accuse the Texans of failing to pay minimum wage and overtime for hours spent on the job, and both allege other workplace violations.

The Texans have denied the allegations and have filed motions seeking their dismissal. If the cases are not dismissed, the Texans want them delayed while allegations are submitted to arbitration before NFL commissioner Roger Goodell.

Since the lawsuits were filed, several former cheerleaders have told local news outlets, including the Chronicle, that they were not subjected to the abuses described by their fellow former cheerleaders.

I had noted before that the Texans had filed for dismissal of one of the lawsuits, and I had wondered about the other one. Now I know. As far as the denial by some other cheerleaders about the allegations made in these lawsuits, that’s of interest and would surely be a key pillar of the defense if this ever makes it to a courtroom, but the presence of some cheerleaders – even many cheerleaders – who say they were not abused or harassed does not have any bearing on the testimony of those who say they were. One can be both credibly accused of bad behavior, and also credibly defended by others who say “that never happened to me”. The defense against harassment by some other members of the Texans’ cheerleading squad also doesn’t address the claims of wage theft. We are still a very long way from a resolution here.

Texans move to dismiss one cheerleader lawsuit

Standard stuff, I presume.

Attorneys for the Houston Texans have asked a federal judge to dismiss a lawsuit filed against the team by five former cheerleaders or to delay proceedings while the former cheerleaders’ complaints are submitted to arbitration.

Team attorneys, in a motion filed with U.S. District Judge David Hitner, cite several flaws in what they describe as a “frivolous” lawsuit filed by former cheerleaders Hannah Turnbow, Ainsley Parish, Morgan Wiederhold, Ashley Rodriguez and Kelly Neuner.

The suit is one of two filed last month by former Texans cheerleaders, complaining of wage violations, breach of contract, negligence and other issues.

Among the lawsuit’s flaws, the Texans say, is that former cheerleaders acted improperly by filing legal action despite signing contracts that require mandatory arbitration for disputes. If the suit is not dismissed, the team says, it at least should be stayed pending arbitration.

[…]

The former cheerleaders also “want to rewrite history,” the team says, by complaining about their treatment after several posted complimentary messages on social media about their association with the team.

“Above all, the plaintiffs want to ignore the law, which dictates that their claims fail, whether in arbitration … or in this court,” lawyers add.

The standard cheerleader contract includes a clause in which both sides agree that the NFL commissioner will preside over binding arbitration to settle any disputes. The commissioner also has authority to refer the dispute to an outside arbitrator.

In a separate filing, attorneys for the team say that Neuner’s complaint against the team because she has not been a cheerleader since the summer of 2011 and that that her complaints fall outside the statute of limitations, which range from 300 days to four years, along with being “factually invalid.”

See here for the background. I’m not aware of any action with the other lawsuit, but my guess is that the team will have a similar response. For sure, the cheerleaders will want to keep this in a courtroom and away from an arbitrator. That’s all I’ve got, so we’ll see what happens.