Second Circuit Rules that United States Marshals Service Owed USCSO-Represented Court Security Officers Due Process Protections

October 25, 2019

The U.S. Court of Appeals for the Second Circuit has ruled that former Court Security Officers Stephen Atterbury and Daniel Hauschild were owed due process protections by the United States Marshals Service, which ordered their federal contractor employer to fire them without explaining its rationale.

CSOs are deputized by the Marshals Service and employed by federal contractors.  At the time of his discharge, Atterbury had worked as a CSO for almost a decade at the federal courthouse in Rochester, New York.  Hauschild had worked as a CSO for 23 years at the federal courthouse in Poughkeepsie.  Both were members of United States Court Security Officers, a labor union that represents CSOs at federal courthouses nationwide.

The Marshals Service directed Akal Security, Atterbury’s contractor employer, to fire him after he became sick and left work with the permission of his supervisor.  Following an investigation in which Akal sided with Atterbury, the Marshals Service sent Akal a form letter that did not explain why the agency disagreed with Akal’s conclusions.  The Marshals Service did not afford Atterbury a hearing at which he could cross-examine witnesses, even though there were significant discrepancies in written witness statements as to whether Atterbury was really ill or simply mad about an assignment when he left the courthouse.

The Marshals Service directed Akal to fire Hauschild following its initiation of serial investigations into stale, anonymous complaints against him.  Following an investigation in which Akal found no merit to ten of the allegations against him and partially sustained the eleventh, but recommended he be issued only a time served suspension, the Marshals Service sent Akal a cursory letter saying it disagreed with its conclusions.  The Marshals Service refused Hauschild’s request for a hearing.

The collective bargaining agreement that USCSO negotiated with Akal contained language providing that discipline and discharges must be with “just cause.”  A CSO fired by Akal could challenge their termination through the contractual grievance and arbitration process.  But a CSO whose removal was directed by the Marshals Service could not.

Atterbury and Hauschild filed federal lawsuits challenging their terminations pursuant to the Administrative Procedure Act.  They alleged that they had a property right in continued employment as CSOs such that the Marshals Service was required to provide them due process protections — namely, notice and a hearing.  Following an unfavorable decision in Atterbury’s case and a favorable decision in Hauschild’s at the trial court level, the cases were consolidated on appeal to the Second Circuit.  There, a three-judge panel ruled unanimously in favor of the CSOs, concluding that they had a property right in continued employment that the Marshals Service had violated when it denied them due process protections.  The Court remanded both cases to the Marshals Service for further processing in accordance with its decision.

CWS attorneys Joshua J. Ellison and Kate M. Swearengen and former CWS attorney Thomas N. Ciantra represented Atterbury and Hauschild.  A copy of the decision can be found here.

Former Court Security Officer Entitled to Jury Trial in Unlawful Discharge Claim

The U.S. District Court for the Eastern District of Michigan has ruled that CWS client and former Court Security Officer Gary Boike is entitled to a jury trial on his federal and state law claims that federal contractor Akal Security, Inc. unlawfully fired him because of his color vision deficiency, commonly known as color-blindness.  A career law enforcement officer, Boike successfully worked for twenty-five years as a police officer and then fifteen years as a CSO before Akal determined that his color vision deficiency, which he has had since birth, meant he could not do the job.

In denying Akal’s motion for summary judgment on Boike’s “regarded-as” disabled claim, Judge Joseph M. Hood determined there was a material dispute as to not only whether Akal performed the requisite individualized inquiry before firing Boike, but also whether the ability to distinguish basic colors is an essential function of the CSO job, and one that Boike could not perform.  Judge Hood also ruled that Akal had not met its burden of showing there was an absence of evidence to support Boike’s claim for punitive damages.

CWS attorneys Joshua J. Ellison and Kate M. Swearengen represented Boike in this case.  A copy of the decision can be found here.

Susan Davis presents at the American Bar Association Section of Labor and Employment Law 13th Annual Labor and Employment Law Conference in New Orleans, LA

November 6-9, 2019

Susan Davis will present at the American Bar Association Section of Labor and Employment Law 13th Annual Labor and Employment Law Conference on November 8, 2019 in New Orleans.  Ms. Davis will participate in a panel entitled “The Ethics of Collective Bargaining: Bigger and Better!”  The program will examine numerous ethical issues that arise in connection with negotiating collective bargaining agreements.

Peter DeChiara quoted in Wall Street Journal article on management bonus plans in bankruptcy

September 5, 2019

On September 5, 2019, the Wall Street Journal reported that the court administering the Chapter 11 bankruptcy of California utility PG&E had denied the company’s proposed multi-million dollar bonus plan for its top executives. The article, seeking comment by experts not involved in the case, quoted CWS partner Peter DeChiara saying that it was “gratifying to see that the PG&E judge scrutinized the bonus plan and turned it down.”  “Sometimes judges will do that,” his quote continued, “but more often than not those plans are approved. It’s a shame because typically, by the very nature of the bankruptcy, the stakeholders including the rank and file workers are sacrificing, taking a hit. While other stakeholders are suffering, management is getting bonuses.”

Peter DeChiara represents unions and benefit funds in employer bankruptcy cases and edits the firm’s blog on bankruptcy labor issues: http://www.cwsny.com/bankruptcy-blog/.

CWS Client Defeats the NLRB’s Request for a Preliminary Injunction that Would Have Prevented the Use of an Inflated Rat and Other Free Speech

July 1, 2019

On July 1, 2019, the United States District Court for the Eastern District of New York rejected a request by the National Labor Relations Board for a preliminary injunction that would have enjoined the Union’s protest activity directed at a Staten Island supermarket chain.  The underlying dispute centers on the supermarket agreeing to move one of its stores into a new shopping center that is being constructed with non-union workers paid wages and benefits below the area standard.  In an attempt to “shame” the supermarket for the move, Local 79 of the Laborers began in late April 2019 erecting inflated balloons—often a rat, but sometimes a cockroach too—distributing leaflets, and holding a single lunch-time rally outside the current supermarkets.  In response, the Regional Director for Region 29 issued a complaint that Local 79 had violated the National Labor Relations Act’s so-called secondary boycott provisions by “enmeshing” the supermarket in the Union’s dispute with the non-union construction company.  Pending resolution of that complaint, which is to be tried before an administrative law judge, the Regional Director sought a preliminary injunction against all Union activity directed at the supermarket other than the distribution of leaflets.  In refusing to issue such a “remarkably broad” injunction, the district court held that the Union’s “peaceful” and “expressive” conduct was lawful under current NLRB case law, and more importantly, the conduct was protected by the First Amendment.  The district court’s decision can be found here.  Local 79 is represented by CWS partner Joseph Vitale and Tamir Rosenblum, General Counsel for the Mason Tenders District Council of Greater New York.

Jani K. Rachelson, Richard M. Seltzer and Lisa M. Gomez present at sessions at the International Foundation of Employee Benefit Plans’ 65th Annual Employee Benefits Conference in San Diego, CA

October 20-23, 2019

Jani K. RachelsonRichard M. Seltzer and Lisa M. Gomez will present at sessions at the International Foundation of Employee Benefit Plans’ 65th Annual Employee Benefits Conference on October 20-23, 2019 in San Diego, CA.  Ms. Rachelson will participate in a panel on “Lessons Learned in Health Plan Mergers” that will review an actual case study of a health plan merger and discuss the decisions and facts leading to merger, legal considerations and obstacles, trustee steps, benefits, surprises, outcomes and costs.  Mr. Seltzer will present on “Enforcing Client Rights in Bankruptcy” discussing bankruptcy rules as they apply to employee benefit plans, the role of the creditors committee, maximizing payouts and other legal considerations.  Ms. Gomez will present on “Avoiding Common Mistakes in Claims and Appeals” discussing compliance with the ERISA claims and appeals regulations and tips for plans to avoid procedural errors in handling claims and appeals.

Kate M. Swearengen’s article, “Joint Employer Standard May Have Nine Lives,” published in the Spring 2019 issue of the American Bar Association Section of Labor & Employment Law Newsletter

June 26, 2019

Kate M. Swearengen’s article, “Joint Employer Standard May Have Nine Lives,” has been published in the Spring 2019 issue of the American Bar Association Section of Labor & Employment Law Newsletter.  The article discusses the D.C. Circuit’s Browning-Ferris decision and its implications for the National Labor Relations Board’s proposed rulemaking on the standard for joint employer status.

A copy of the article is reprinted here with permission.

Melissa S. Woods elected as a Fellow of The College of Labor and Employment Lawyers

June 8, 2019

Melissa S. Woods was elected as a Fellow of The College of Labor and Employment Lawyers.  The College was established by the Section of Labor and Employment Law of the American Bar Association to recognize those “who, by long and outstanding service, have distinguished themselves as leaders in the field” of labor and employment law.  The College notes that election as a Fellow in the College “is the highest recognition by one’s colleagues of sustained outstanding performance in the profession, exemplifying integrity, dedication and excellence.”  Ms. Woods will be formally installed as a Fellow on November 9, 2019 at the American Bar Association’s Labor and Employment Law Section’s Continuing Legal Education Conference in New Orleans, LA.  A copy of the College’s press release can be found here.

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