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Erickson is the only unionized crane rental company in western Michigan. In 2015, the Local insisted that only members of the Local, not the company’s other unions, perform crane-operator work. The Local threatened to stop referring union members for regular temporary-labor needs and operators began seeking the Local’s help with payroll mix-ups rather than resolving them with Erickson. When the company told employees to “quit talking to Brandon because he’s going to get you in trouble,” the Local filed its first-ever grievance and unfair labor practice charge against Erickson, which eventually agreed to allow workers to seek the Local’s help. In 2016 Erickson discovered that the Local was approaching customers and encouraging them to hire through the Union’s referral process rather than contracting with the company. Erickson fired six members of the Local, 30% of the company’s operators. Erickson told the fired workers about the lack of work for small cranes; the layoffs “could be reversed,” if the workers would “get the Union to back off.” Erickson put six small cranes on the market. The Local filed unfair labor practice charges under 29 U.S.C. 158(a)(1); 158(a)(3). The Sixth Circuit affirmed an NLRB decision in favor of the Local. Even if Erickson exited the small-crane market for unrelated reasons, the need to terminate the operators did not necessarily follow. Erickson had a dramatic increase in temporary hires immediately after the discharges, often for tasks the fired workers performed. The company’s justification was pretextual. View "Erickson Trucking Service, Inc. v. National Labor Relations Board" on Justia Law

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Brice, who had been purchasing heroin from defendant “[o]ff and on, for maybe a year and a half,” suffered from hypertension and a mild arrhythmia, tested positive for hepatitis C, and had been an opioid addict for years. In the drug sale in question, Brice purchased half a gram of what he believed to be heroin; it was actually fentanyl. Brice injected approximately a quarter of that half gram intravenously, had a stroke, and entered a coma. He survived with a subarachnoid hemorrhage, anoxic brain injury, liver failure, kidney failure, and heart failure. He recovered his day-to-day functioning after six months of intensive therapy. Defendant pleaded guilty to distributing fentanyl, 21 U.S.C. 841(a)(1). Defendant’s presentence report acknowledged that the district court could increase his sentence above the authorized range based upon USSG 5K2.2, which authorizes departures when “significant physical injury result[s]” from the crime. He objected because the victim had an “extensive and serious history of pre-existing medical conditions." Feola, a doctor of pharmacy, testified that it was possible Brice’s pre-existing health status affected his likelihood of experiencing a drug overdose and that it was possible that his condition could have increased the likelihood of overdose symptoms. The district court increased the defendant’s offense level by six points, which increased his Guidelines range to 51-63 months and sentenced him to 51 months. The Sixth Circuit affirmed, rejecting an argument that the district court failed to consider Brice’s “own choices.” View "United States v. Gillispie" on Justia Law

Posted in: Criminal Law

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The Sixth Circuit affirmed the district court's grant of summary judgment to Columbia Gas on Landowners' state-law trespass and unjust enrichment claims involving underground storage of natural gas. In regard to the trespass claims, the court held that Landowners failed to show that Columbia Gas interfered with the possessory interest in their subsurface where each Landowner had admitted that they have not used and do not intend to use their subsurface. In regard to the unjust enrichment claims, the court held that Columbia Gas need not file a cross-appeal in order to preserve its argument to affirm the damages judgment on the ground that Columbia Gas has no underlying liability. Furthermore, Landowners' unjust enrichment claims failed because Landowners could not show, as they must, that they conferred a benefit upon the defendant. View "Baatz v. Columbia Gas Transmission, LLC" on Justia Law

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Plaintiff filed suit against Safelite for breach of contract and negligent misrepresentation arising from the company's alleged mismanagement of its deferred compensation plan for executive employees. The Sixth Circuit affirmed the district court's grant of Safelite's motion for partial summary judgment, holding that the Safelite Plan qualifies as an employee pension benefit plan under 29 U.S.C. 1002(2)(A)(ii) and is not a bonus plan as defined in 29 C.F.R. 2510.3-2(c). Therefore, the Safelite Plan was not exempted from coverage under the Employee Retirement Income Security Act. View "Wilson v. Safelite Group, Inc." on Justia Law

Posted in: ERISA

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Pablo, born in 1985, speaks the Mam language and minimal Spanish. Pablo fled to the U.S. in 2001 after violent abuse by his stepfather. Pablo paid for legal representation but did not understand the proceedings. In 2009, Pablo was stopped for a traffic violation and deported. Pablo then lived with his grandparents, indigenous farmers. People from another town had beaten his grandparents and destroyed their crops. Pablo joined a committee of indigenous farmers and reported the abuse to the mayor. The police supported the assailants. Pablo was taken to an isolated place and beaten until he passed out. The group threatened to kill Pablo if he continued to fight for land rights. In 2010, Pablo fled to the U.S. He did not contact immigration officials or seek legal assistance. In 2012, Pablo was again deported and found work on a farm. Non-indigenous managers mistreated indigenous workers. Pablo helped form a union to protest the abuse. The owner warned that he would summon police to “show the Indians their place.” During a protest, Pablo was taken to jail and severely beaten. Police stated that Pablo would be sent to his grandparents, where local police would decide whether he lived or died. A human rights organization secured his release. Pablo spent five days in the hospital. Pablo returned to the U.S. He first met with his attorney in July 2016. Pablo did not have any records from his previous proceedings. Pablo filed complaints against his prior “attorneys” and moved to reopen. The Sixth Circuit reversed the denial of relief and remanded to the BIA to reconsider whether Pablo demonstrated changed country conditions under the correct evidentiary and legal standards. The court affirmed the denial of Pablo’s motion based on ineffective assistance because Pablo failed to demonstrate due diligence. View "Lorenzo v. Barr" on Justia Law

Posted in: Immigration Law

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Ragland pleaded guilty as a felon in possession of a firearm, 18 U.S.C. 922(g). His PSR calculated Ragland’s base offense level as 22, based in part on Ragland’s prior conviction for unarmed robbery, a "crime of violence." It applied a four-level enhancement, USSG 2K2.1(b)(4)(B), because the pistol with which Ragland was arrested had an “altered or obliterated serial number.” The gun had been reported stolen and had been used in two shootings, including one the day before Ragland was arrested. Ragland’s Guidelines range was 121-151 months of imprisonment, although the statutory maximum was 120 months. Ragland did not object to his base offense level or the enhancement but objected to a recommendation that the court not grant a reduction for acceptance of responsibility. The district court gave him full acceptance-of-responsibility credit, reducing his Guidelines range to 87-108 months. The court considered the 18 U.S.C. 3553(a) factors and decided that an upward variance to the statutory maximum—120 months—was appropriate because the circumstances of Ragland’s arrest and his prior record indicated that Ragland was a “significant risk to the public and a significant risk to re-offend.” Ragland did not object. The Sixth Circuit affirmed the sentence. The Michigan offense of unarmed robbery constituted a “crime of violence” under USSG 2K2.1(a)(3); the court did not commit plain error in applying the enhancement for an altered or obliterated serial number on a firearm. View "United States v. Fuller-Ragland" on Justia Law

Posted in: Criminal Law

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Ohio Revised Code 4123.88 addresses how workers' compensation claimant information is handled and protected by the Ohio Bureau of Workers’ Compensation and contains the solicitation ban at issue: “No person shall directly or indirectly solicit authority” (1) to “represent the claimant or employer in respect of” a worker’s compensation “claim or appeal,” or (2) “to take charge of” any such claim or appeal. The district court rejected Bevan's challenge on summary judgment. The Sixth Circuit reversed, concluding that the state has prohibited all solicitation, whether oral or written, by any person to represent a party with respect to an Ohio workers’ compensation claim or appeal and that such a prophylactic ban violates the First Amendment under the Supreme Court’s 1988 "Shapero" decision. The court rejected an argument that the constitutionally questionable language is part of a larger statutory scheme that Bevan allegedly violated by obtaining claimant information from the Bureau in an unlawful manner. Whether Bevan violated other statutory provisions governing disclosure of claimant information is not relevant to whether the solicitation ban itself is constitutional. The solicitation ban makes no distinction as to how the person doing the soliciting learned of the claimant’s information: it bans all solicitation regardless of where or how that information was obtained. The prohibition is repugnant to the First Amendment's free speech clause. View "Bevan & Associates, LPA v. Yost" on Justia Law

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The Short North Posse gang of Columbus, Ohio (an affiliate of the national Crips gang) conducted brutal home-invasion style robberies and planned and executed the murder of rivals, high-value targets, and cooperating witnesses to support its drug operation. After two months of trial, Ledbetter, Ussury, Liston, and Harris were convicted of RICO conspiracy, 18 U.S.C. 1962(d) for their membership in the Posse enterprise. Those four, plus Robinson, were convicted of various murders in aid of racketeering, 18 U.S.C. 1959, and other similar crimes; all received at least one life sentence. The Sixth Circuit vacated Ussury’s conviction for the murder of Hill in aid of racketeering, finding insufficient evidence that Ussury acted with the necessary statutory purpose The court vacated Harris’s and Robinson’s convictions for murder by firearm during a crime of violence in light of the Supreme Court’s 2019 “Davis” decision, that 18 U.S.C. 924(c)(3)(B)’s residual clause is unconstitutionally vague. The court rejected other claims, including insufficiency of the evidence, ineffective assistance of counsel, improper jury instructions, and improper testimony. View "United States v. Liston" on Justia Law

Posted in: Criminal Law

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Sulik pleaded guilty to cyberstalking, 18 U.S.C. 2261A(2), after he sent threatening emails to a member of Congress. The threats followed the representative calling General John Kelly, then White House Chief of Staff, a “disgrace to the uniform he used to wear” and included statements: “You put your family at risk,” “Marines are loyal to their Generals, not low life parasite politicians like you,” and “What are you going to do before I erase you?” The district court concluded that his crime was motivated by the victim’s status as a government officer, triggering a six-level enhancement under USSG 3A1.2. Sulik was sentenced to 48 months in prison. Without the enhancement, Sulik’s range would have been 24-30 months. The Sixth Circuit affirmed. The “official victim” enhancement applies if the victim is a current or former “government officer or employee,” or an immediate family member, and “the offense of conviction was motivated by such status.” A defendant’s knowledge of the victim’s official status alone cannot trigger the enhancement. The comment that triggered Sulik’s threats was a public response to the debate about a matter of great political significance: immigration policy. In at least one email, Sulik referenced the Representative’s official status; the threats were sent “to a campaign email, not a personal address.” While the evidence was “barely sufficient” to support the application of the enhancement, there was no clear error. View "United States v. Sulik" on Justia Law

Posted in: Criminal Law

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The union accused the employer, which operates coal-fired power generation facilities in Ohio and Pennsylvania, of implementing terms and conditions of employment that were inconsistent with the employer’s final impasse offer during collective bargaining negotiations and of unilaterally subcontracting out periodic maintenance work historically performed by union employees. The National Labor Relations Board affirmed an administrative law judge’s findings in favor of the union on both charges. The Sixth Circuit affirmed that the employer violated Section 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. 158 (a)(5), (a)(1), when, after impasse, it selectively implemented certain pre-impasse bargaining proposals that were inextricably linked to other proposals not imposed. The court reversed with respect to subcontracting the turbine/generator outage work without first bargaining with the union. The decision to subcontract a planned project involving the shutdown and maintenance of one of its turbine-generator units is properly characterized as a business management decision, driven by the employer's responsibility to keep its generating units in working order, while continuously offering full service, or face penalties. The court reversed the Board’s order requiring the employer to supply requested information regarding subcontracting. View "FirstEnergy Generation, LLC v. National Labor Relations Board" on Justia Law