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Flight Options announced that it would merge with Flexjet. The Teamsters Union already represented Options' pilots. Flexjet pilots elected the Teamsters to represent them. The existing Options collective-bargaining agreement (CBA) requires the parties to modify the agreement “to permit the integration” of new pilots within nine months; if they reach an impasse, they must submit to binding arbitration. However, the CBA became “amendable” under the Railway Labor Act after the merger, so that either party could propose broad changes affecting the pilots’ rates of pay and working conditions, 45 U.S.C. 156, by serving a “Section 6” notice. The union served a Section 6 notice before the parties began their CBA negotiations. The airlines maintain that they must resolve their CBA negotiations before turning to the Section 6 proposals. The union argues that both negotiations should happen simultaneously. The union obtained a preliminary injunction ordering the airlines to bargain the Section 6 proposals in good faith. The Sixth Circuit vacated. The district court incorrectly assumed the parties’ dispute over the order of negotiations was “major” under the Act, and, therefore, required good-faith bargaining. Given that the airlines’ claim is consistent with the CBA and the union has failed to identify any contradictory language, the dispute is minor; Whether the terms of the CBA allow the airlines to delay Section 6 negotiations must be determined in arbitration. View "Flight Options, LLC v. International Brotherhood of Teamsters, Local 1108" on Justia Law

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Gregg has a compensation policy whereby its retail and sales employees, who are paid solely on the basis of commission, are advanced a “draw” to meet the minimum-wage requirements whenever their commissions fall below minimum wage. The amount of the draw is then deducted from future earnings in weeks when the employees’ commissions exceed the minimum-wage requirements. Plaintiffs, on behalf of themselves and other former and current Gregg employees, brought suit claiming violations of the Fair Labor Standards Act (FLSA) and state law. The district court found that defendants’ compensation policy was legal and dismissed all of plaintiffs’ federal claims. The Sixth Circuit reversed. The district court incorrectly applied the retail or service establishment exemption, which relieves employers from only their overtime obligations, 29 U.S.C. 207(i). Department of Labor regulations state that when an employee earns less in commissions than he was advanced through a draw, “a deduction of the excess amount from commission earnings for a subsequent period, if otherwise lawful, may or may not be customary under the employment arrangement,” 29 C.F.R. 779.416. Plaintiffs alleged sufficient facts to indicate that Gregg violated the FLSA by policies and practices that encouraged employees to work “off the clock” without compensation View "Stein v. hhgregg Inc." on Justia Law

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Adams, 71, has been addicted to opiates for most of his life and has an extensive criminal history. In 2011, Adams pleaded guilty to conspiracy to distribute and possess with intent to distribute controlled substances, 21 U.S.C. 846 and 841(a)(1). After serving his custodial sentence, Adams began supervised release in July 2015. Starting in October 2015, Adams repeatedly tested positive for opiates.The Probation Office placed Adams in multiple drug-treatment programs, without success. After Adams tested positive for opiates three times between October 24 and November 15, 2016, the Probation Office filed another violation report. Following Adams’s failure of another drug test on November 30, it filed an amended report. At his hearing, Adams admitted that he unlawfully used controlled substances. The Guidelines range for the violation was incarceration of 21 to 27 months. After extensive discussion of Adams’s substance-abuse and the failure of treatment programs, the district court revoked Adams’s supervised release and sentenced him to 18 months of incarceration with no period of supervision to follow. The Sixth Circuit vacated the sentence. The court violated Adams’s due-process right when it based his sentence on unreliable information about rehabilitation and violated Supreme Court precedent, Tapia v. United States (2011), when it considered rehabilitation as a factor when calculating the length of incarceration. View "United States v. Adams" on Justia Law

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Blue gem coal burns hotter and cleaner than thermal coal, making it useful for producing silicon, a critical ingredient of computer chips and solar panels. Environmental regulations make it difficult to mine. Demand for blue gem coal outstrips its supply; it commands premium prices. New Century advertised itself as one of the largest blue gem coal companies in the country, falsely claiming to own land with valuable deposits and to have mining permits. By the time law enforcement caught on, the company had swindled more than $14 million from more than 160 investors. Eleven people involved in the scheme, including the mastermind, Rose, pleaded guilty. Phillips, who worked for New Century scouting property, went to trial. Phillips helped Rose, a NASCAR driver with little experience in the coal industry, identify land with coal-mining potential. The evidence portrayed Phillips as a coal-industry expert who helped New Century convince investors that it was legitimate. Phillips claimed he had no idea that the company defrauded investors. The jury convicted Phillips of conspiracy to commit mail and wire fraud but acquitted him of two money-laundering charges. The judge sentenced him to 30 months in prison. The Sixth Circuit affirmed, rejecting challenges to the sufficiency of the evidence and to evidentiary rulings. View "United States v. Phillips" on Justia Law

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Pham pleaded guilty as a felon in possession of a firearm, 18 U.S.C. 922(g)(1). The government argued that Pham was subject to the Armed Career Criminal Act, 18 U.S.C. 924(e) (ACCA), which imposes a 15-year minimum sentence on anyone convicted as a felon in possession of a firearm who has “three previous convictions by any court” for a “serious drug offense” “committed on occasions different from one another.” Cole had a 2003 Tennessee conviction for conspiring to deliver ecstasy; two 2004 federal convictions for possessing with intent to distribute methamphetamine and ecstasy, each based on a February 12, 2004 sale to a confidential informant; and two 2004 federal convictions for possessing with intent to distribute methamphetamine and ecstasy, each based on a February 28, 2004, search of Pham’s residence. Pham objected, arguing that another 2004 federal conviction, for conspiring to possess with intent to distribute 50 grams or more of methamphetamine and ecstasy from October 2003 to February 2004, subsumed the other 2004 offenses because he committed them to further the conspiracy. The court found the ACCA applicable and sentenced Pham to 188 months of imprisonment. The Sixth Circuit affirmed, finding that the 2004 convictions counted as qualifying offenses, having occurred on different occasions under the statute. View "United States v. Pham" on Justia Law

Posted in: Criminal Law

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Hamilton County Deputy Greer pulled over a female driver who had been drinking, had no driver’s license, and had an outstanding arrest warrant. Greer ran her license but did not arrest her. He had her drive to a secluded location where he had her perform oral sex on him. Later that day, the woman filed charges. A detective interviewed Greer that day. Greer said that he had run the woman’s license plate but had no personal interaction with her. Later in the interview, Greer said that he had not activated his police lights or detained her but that she had approached him with the sexual proposition. Greer eventually admitted to the woman’s version of the facts; investigators recovered his semen from the woman’s clothing. State charges were dismissed following a federal indictment. Greer pleaded guilty to witness tampering, 18 U.S.C. 1512(b)(3), in exchange for dismissal of other charges. The district court applied a Cross Reference to USSG 2X3.1, Accessory After the Fact, based on an underlying offense of the civil rights violation being investigated--aggravated rape. Greer argued that there had been no prosecution for rape and that there was not sufficient evidence that it was “committed.” Greer also unsuccessfully sought downward departures, arguing that this was “aberrant behavior” and that the woman falsely claimed that the sex was rape. The Sixth Circuit affirmed Greer’s below-guidelines sentence of 60 months. View "United States v. Greer" on Justia Law

Posted in: Criminal Law

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Bowling worked as a coal miner for 29 years, most recently for Island Fork. In 2002, Bowling unsuccessfully sought Black Lung Benefits Act (BLBA) benefits. In 2010, Bowling filed the current claim. In the meantime, the Affordable Care Act amended the BLBA to reinstate a rebuttable presumption that claimants with respiratory disabilities and 15 years or more of underground coal-mining work experienced those disabilities as a result of pneumoconiosis, 30 U.S.C. 921(c)(4). The District Director designated Island Fork as the responsible operator and awarded benefits. At a hearing, the ALJ learned that Island Fork and its insurer, Frontier were insolvent. Frontier declared insolvency after the Proposed Order issued. At the initial stages, if the District Director determines that an operator is not financially capable, the Director can select another operator—such as a previous employer—to be the responsible operator; once the claim reaches the ALJ, there is no mechanism to designate a different responsible operator. The Trust Fund, created by the BLBA, provides benefits when there are no responsible operators available, including when an operator is deemed at the ALJ stage not to be financially capable. KIGA, created by the Kentucky Insurance Guaranty Association Act, provides benefits when a member insurance company is insolvent. The ALJ decided that Island Fork was still the responsible operator because benefits could be paid by KIGA. The Sixth Circuit affirmed. The exclusions in the Guaranty Act do not apply; KIGA is liable. View "Island Fork Construction v. Bowling" on Justia Law

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In 2008, Arise, a Dayton community school (charter school), faced declining enrollment, financial troubles, and scandal after its treasurer was indicted for embezzlement. The school’s sponsor sought a radical change in administration, elevated Arise’s former principal, Floyd, to superintendent, removed all board members, and appointed Floyd’s recommended candidates to the new board. Floyd set up a kickback scheme, using former business partners to form Global Educational Consultants, which contracted with Arise. Global received $420,919 from Arise. While Global was being paid, Arise teachers’ salaries were cut and staff members were not consistently paid. Arise ran out of money and closed in 2010. The FBI investigated and signed a proffer agreement with Ward, the “silent partner” at Global, then indicted Floyd, Arise board members, and Global's owner. They were convicted of federal programs bribery, conspiracy to commit federal programs bribery, and making material false statements, 18 U.S.C. 666(a)(1)(B), (a)(2); 18 U.S.C. 371; 18 U.S.C. 1001(a)(2). Two African-American jurors reported that they were initially unconvinced; the jury foreperson, a white woman, reportedly told them that she believed they were reluctant to convict because they felt they “owed something” to their “black brothers.” This remark prompted a confrontation, requiring the marshal to intervene.The Sixth Circuit affirmed their convictions, rejecting arguments based on the Supreme Court’s 2017 decision, Pena-Rodriguez v. Colorado. Although Pena-Rodriguez permitted, in very limited circumstances, an inquiry into a jury’s deliberations, this case did not fit into those limited circumstances. View "United States v. Robinson" on Justia Law

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The Bay Mills Tribal Police Department broadcast a lookout notice for Verwiebe after it received a report that he had assaulted his girlfriend. When officers located Verwiebe, he pulled a knife from his waistband, raised it over his head, and threatened to kill the officers. The officers eventually got control of him with the help of a bystander. In the police car, Verwiebe continued to threaten the officers and even spat on them. Verwiebe pleaded guilty to assaulting, resisting, or impeding a federal officer with a dangerous weapon. He was scored as a career offender under U.S.S.G. 4B1.1 based on his prior federal convictions for assault with a dangerous weapon with intent to do bodily harm, 18 U.S.C. 113(a)(3), and assault resulting in serious bodily injury, 18 U.S.C. 113(a)(6). At sentencing, the district court found that each conviction qualified as a crime of violence. The Sixth Circuit affirmed the sentence, applying the November 2016 Sentencing Manual. Because each crime combines common law assault with an additional element that, together, indicate “the use, attempted use, or threatened use of physical force,” both of them amounted to “crimes of violence” under Sentencing Guidelines section 4B1.2(a). View "United States v. Verwiebe" on Justia Law

Posted in: Criminal Law

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Doe met Roe on Tinder. They eventually met in person. Doe invited Roe to his apartment, where the two engaged in sex. Three weeks later, Roe reported to the University of Cincinnati’s Title IX Office that Doe had sexually assaulted her that evening. No physical evidence supports either student’s version. Five months later, UC cited Doe for violating the Student Code of Conduct. UC resolves charges of non-academic misconduct through an Administrative Review Committee hearing process. UC’s Code of Conduct does not require witnesses to be present. If a witness is “unable to attend,” the Code permits him to submit a “notarized statement” to the Committee. After considerable delay, UC held Doe's hearing. Despite Roe’s failure to appear, UC found Doe “responsible” for sexual assault, based upon Roe's previous hearsay statements to investigators. UC suspended Doe for a year after an administrative appeal. Doe argued that the denial of his right to confront his accuser violated his due process rights. In granting a preliminary injunction against Doe’s suspension, the district court found a strong likelihood that Doe would prevail on his constitutional claim. The Sixth Circuit affirmed. The Due Process Clause guarantees fundamental fairness to state university students facing long-term exclusion from the educational process. The Committee necessarily made a credibility determination and its failure to provide any form of confrontation of the accuser made the proceeding fundamentally unfair. View "Doe v. University of Cincinnati" on Justia Law