Hitterman v. Universal Security Inc.
MEMORANDUM Opinion and Order: Paul Hitterman, the Acting Regional Director of Region 13 of the National Labor Relations Board (the "Director"), has filed a petition seeking a preliminary injunction requiring Universal Security, Inc. to rehi re two employees, Marcie Barnett and Sadaf Subijano, while administrative proceedings seeking the employees' reinstatement are proceeding before the National Labor Relations Board(the "Board"). For the reasons stated, the petition is granted. Civil case terminated. Signed by the Honorable Thomas M. Durkin on 8/17/2017:Mailed notice(srn, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
PAUL HITTERMAN, Acting Regional
Director of Region 13 of the National
Labor Relations Board, for and on behalf
of the National Labor Relations Board,
No. 17 C 2616
Judge Thomas M. Durkin
UNIVERSAL SECURITY, INC.,
MEMORANDUM OPINION AND ORDER
Paul Hitterman, the Acting Regional Director of Region 13 of the National
Labor Relations Board (the “Director”), has filed a petition seeking a preliminary
injunction requiring Universal Security, Inc. to rehire two employees, Marcie
Barnett and Sadaf Subijano, while administrative proceedings seeking the
employees’ reinstatement are proceeding before the National Labor Relations Board
(the “Board”). Universal provides security services at O’Hare Airport, where Barnett
and Subijano worked as security guards. The Director argues that they were fired
because they participated in union organizing activities and spoke to the press
about a strike and their working conditions, in violation of Section 8 of the National
Labor Relations Act (the “Act”). Universal argues that they fired Barnett and
Subijano because their statements to the press revealed “sensitive security
information” (“SSI”) in violation of federal regulations, and that by publicizing their
identities as airport security guards, Barnett and Subijano became vulnerable to
influence by those seeking to attack the airport. For the following reasons, the
petition is granted.
The Service Employees International Union (the “Union”) filed charges with
the Board against Universal alleging, among other charges, that Universal violated
Section 8 of the Act by firing Barnett and Subijano. The Board investigated the
charges and based on that investigation the Director filed a complaint with the
Board against Universal on December 23, 2016. Universal sought summary
judgment before the Board, which the Board rejected on April 3, 2017. That same
day, the Board authorized the Director to seek injunctive relief. The Director filed
this petition three days later on April 6, 2017. A hearing was held before an
administrative law judge on May 9-10, 2017. The testimony and exhibits from that
hearing constitute the record that is the basis for the Director’s petition for
injunction relief here. A decision on the merits from the administrative law judge is
pending. This Court heard oral argument on June 29, 2017.
Through 2016, the Union was working to unionize Universal employees.
According to Sarah Sahed, the Union’s Midwest organizing coordinator, Barnett and
Subijano were leaders in the unionization campaign because of “their participation
through attending meetings, speaking to their coworkers, moving petitions,
attending events, and actions inside and outside of the airport.” R. 23-2 at 123
(122:1-4). 1 Barnett testified that she attended between eight and ten union
meetings and two strikes prior to being fired. Id. at 25 (24:1-7). Subijano testified
that she began her involvement with the union in 2015, attended seven or eight
meetings, and participated in two strikes. Id. at 67 (66:4-18).
Statements to the Media
Barnett and Subijano participated in a strike on March 31, 2016, during
which they made statements to the media. Barnett made the following statement,
which was transcribed and posted on the internet:
I’m a security officer with Universal Security. I guard
entranceways at the airport and ensure no one gets
through that’s not supposed to be there. We are also
called to secure doors on the concourse, screen IDs for
employees . . . and log in vendors. I keep the airport safe.
I’m fighting out here for today for you, the public, and
myself. We are on an unfair labor practice strike because
when we came together for a fifteen dollar living wage our
employer retaliated against us. O’Hare workers need a
living wage and health care for out – to raise our families.
I want to be able to help my daughter get through college
and I want to do things with my granddaughter such as
take her to Navy Pier on a ferris wheel, Shedd Aquarium
and to also visit her uncles in Nebraska and Georgia, I
would like to fly there. But instead I am struggling to put
food on the table, and buying seven-day bus passes to
work, it’s like robbing Peter to pay Paul, how unfortunate.
To the extent this testimony may be hearsay, it is well established that hearsay
testimony is admissible in preliminary injunction hearings. See SEC v. Cherif, 933
F.2d 403, 412 n.8 (7th Cir. 1991) (“[H]earsay can be considered in entering a
preliminary injunction.”); FTC v. Lifewatch Inc., 176 F. Supp. 3d 757, 762 (N.D. Ill.
2016) (“Settled law . . . permit[s] a district court to consider hearsay at the
preliminary injunction stage.”); see also Mullins v. City of New York, 626 F.3d 47, 52
(2d Cir. 2010) (“[H]earsay evidence may be considered by a district court in
determining whether to grant a preliminary injunction.”). Additionally, Universal
has not objected to the admissibility of this testimony for purposes of the Court
deciding the Director’s petition.
R. 23-5 at 145. The following statements were attributed to Subijano by various
[Subijano] . . . feels unprepared in an emergency,
particularly pertinent in light of the Brussels attack, and
wants more training on how to respond.
“We don’t have nothing much but a radio to communicate
with command center,” Subijano said. “I don’t think that’s
Id. at 152 (Chicago Tribune).
In particular, they say they aren’t instructed properly in
how to deal with real security threats such as a terrorist
“All we have is the radio,” Subijano said Wednesday.
After workers aired those complaints earlier this month to
city Aviation Commissioner Ginger Evans, Universal
Security followed up by showing its workers a Homeland
Security video titled “Run! Hide! Fight!”
The video was released four years ago as a way to advise
members of the public about what to do if caught in an
active-shooter situation, the main takeaway being you
ought to try to get away quickly.
I’ve linked to the video on our website so you can judge for
yourself whether this is the sort of “training” you would
expect in an emergency for uniformed airport security,
even for the third string.
Id. at 155-56 (Chicago Sun-Times).
“We need critical training to protect ourselves, other
workers and our passengers when emergencies happen”
Sadaf Subijano, a security guard at Chicago’s O’Hare
International Airport said. She said the Brussels attacks
“should be a wake-up call for everybody.”
Id. at 158 (Washington Post).
Barnett and Subijano Are Fired
Both Barnett and Subijano were fired on April 13, 2016. R. 23-5 at 164-65.
Their termination letters explained that they were fired because they “repeatedly
spoke to a number of media outlets over the past several weeks regarding the
details of [their] security work at O’Hare . . . . [and their] comments have included
sensitive security information.” Id. The termination letters did not specifically
reference any statements in particular.
The TSA Issues Warning Notices
In August 2016, the Transportation Security Administration (“TSA”) issued a
“Warning Notice” to Universal in connection with Barnett’s and Subjiano’s
statements. The federal regulations governing the TSA define “Warning Notice” as
a notice “that recites available facts and information about the incident or condition
and indicates that it may have been a violation,” but “does not constitute a formal
adjudication of the matter.” 49 C.F.R. 1503.301(b)(1). The warning notice the TSA
issued to Universal stated that
on April 18, 2016, TSA at [O’Hare] became aware via a
Chicago Tribune article dated April 15, 2016, that two
[Universal] employees employed as contractors at
[O’Hare] released [SSI] to the media and possibly other
individuals. No notification informing TSA of this
unauthorized release of SSI was made by the Chicago
Department of Aviation or [Universal].
This incident may have represented a failure on the part
of [Universal] at [O’Hare] to comply with 49 CFR
1520.9(c), which requires that when a covered person
becomes aware that SSI has been released to
unauthorized persons, the covered person must promptly
inform TSA . . . .
R. 23-5 at 166. The Chicago Tribune article referenced in the TSA’s warning notice
included a photograph of Subijano and identified her as a “security officer” at
O’Hare. R. 23-4 at 502. The article quoted the termination letter Universal provided
Subjiano as stating that she was fired because her “comments [to the media] have
included sensitive security information.” Id. at 503. The article went on to report
that “[i]n comments to the Tribune [on] March 31, Subijano complained about a lack
of paid sick days, retaliation for organizing and inadequate security training. She
said officers have only a radio to communicate with the command center.” Id.
TSA also issued “Warning Notices” to Barnett and Subijano through their
counsel at the Union. These notices stated that TSA had conducted an
“investigation . . . in regard to media reports indicating your client disclosed SSI to
the media resulting in [their] termination from [Universal].” R. 23-5 at 168-69. The
notices provided that the warning was being issued because “[t]his incident may
have represented a failure on your part to comply with 49 CFR 1520.9(c), which
requires that when a covered person becomes aware that SSI has been released to
unauthorized persons, the covered person must promptly inform TSA . . . .” Id. A
“covered person” under 49 C.F.R. § 1520.7(j) includes “[e]ach person who has access
to SSI,” which plausibly includes Barnett and Subijano.
Effect on the Union
Universal’s counsel represented at oral argument that Universal employs
about 200 people at O’Hare. The Union invited Universal employees to at least
seven meetings leading up to the strike on March 31, 2016. See R. 23-4 at 430-39.
An average of 12 Universal employees attended those seven meetings. See id.; R.
23-2 at 111-19 (110:6–118:20). The strike on March 31, 2016 was attended about
100 O’Hare employees, and between 15 to 20 of the 100 were Universal employees.
See R. 23-2 at 120-22 (119:1–121:1).
After Barnett and Subijano were fired on April 13, 2016, the Union held 13
meetings between May 20 and November 1, 2016. See R. 23-4 at 448-96; R. 23-2 at
127-142 (126:7–141:23). An average of 2.15 Universal employees attended each
meeting. See id. The Union organized another O’Hare strike in November 2016,
which was attended by approximately 300 O’Hare workers. R. 23-2 at 145 (144:710). None of the workers who participated in the strike were employed by
Universal. Id. (144:13-15).
The Director seeks a preliminary injunction ordering Universal to rehire
Barrett and Subijano until the Board finally adjudicates the Union’s charges
against Universal. “Under [Section] 10(j) of the Act, courts may grant temporary
injunctions pending the Board’s resolution of unfair labor practice cases.” Harrell v.
Am. Red Cross, Heart of Am. Blood Services Region, 714 F.3d 553, 556 (7th
Cir.2013). “The idea underpinning 10(j) is that a district court can issue a speedy
preliminary injunction to protect a union where the effective enforcement of [the
Act] is threatened by the delays inherent in [the Board’s] dispute resolution
process.” Ohr v. Latino Exp., Inc., 776 F.3d 469, 472 (7th Cir. 2015). “The goal is to
protect the integrity of the collective bargaining process and to preserve the Board’s
power to provide effective remedies for violations despite the ‘notoriously glacial’
pace of Board proceedings.” Lineback v. Irving Ready-Mix, Inc., 653 F.3d 566, 570
(7th Cir. 2011).
The Seventh Circuit has held that courts applying Section 10(j) should use
“the same factors to which [they] look in other contexts when deciding whether to
grant injunctive relief.” Lineback v. Spurlino Materials, LLC, 546 F.3d 491, 499-500
(7th Cir. 2008). Those factors are the following: “(1) [the Board] has no adequate
remedy at law; (2) the Union will be irreparably harmed without interim relief, and
that potential harm to the Union outweighs potential harm to the employer; (3)
public harm would occur without the relief; and (4) the Board has a reasonable
likelihood of prevailing.” Am. Red Cross, 714 F.3d 553, 556 (7th Cir. 2013). “The
Director bears the burden of establishing the first, third, and fourth of these
circumstances by a preponderance of the evidence.” Spurlino Materials, 546 F.3d at
500. By contrast, the extent of the Director’s burden to demonstrate irreparable
harm varies inversely with the strength of the Director’s case on the merits. Id.
(that burden “is evaluated on a sliding scale”); see also Hoosier Energy Rural Elec.
Co-op., Inc. v. John Hancock Life Ins. Co., 582 F.3d 721, 725 (7th Cir. 2009) (“the
more net harm an injunction can prevent, the weaker the plaintiff's claim on the
merits can be while still supporting some preliminary relief”). Ultimately, “plaintiff
seeking preliminary relief [must] demonstrate that irreparable injury is likely in the
absence of an injunction.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 375
(2008) (emphasis in original). Since the Director’s burden to show that any harm
the Union faces outweighs any harm Universal faces is evaluated in light of the
strength of the Director’s case on the merits, the Court will balance the harms last.
Inadequate Remedy at Law
“In § 10(j) cases, the ‘adequate remedy at law’ inquiry is whether, in the
absence of immediate relief, the harm flowing from the alleged violation cannot be
prevented or fully rectified by the final Board order.” Am. Red Cross, 714 F.3d at
557. “The longer that an employer is able to . . . avoid bargaining with a union, the
less likely it is that the union will be able to . . . represent employees effectively
once the NLRB issues its final order.” Id. “This risk is particularly true in cases
involving fledgling unions, where the passage of time is especially critical.” Spurlino
Materials, 546 F.3d at 501.
The Director contends that there is no adequate remedy a law for the chilling
effect on the other employees’ willingness to participate in Union activities in light
of Barnett’s and Subijano’s terminations after speaking out at a strike. R. 26 at 5.
As noted above, Universal employees have participated in Union activities at a
drastically reduced rate since Barnett and Subijano were fired. Most notable, nearly
20 of Universal’s employees participated in the strike on March 31, 2016, but none
participated in a similar strike of O’Hare workers in November 2016. Additionally,
the Union representative testified that fourteen individuals told her they feared
retaliation if they continued to participate in the unionization efforts.
This evidence demonstrates that harm to the Union’s organizing activities
has already occurred. It is likely that without immediate injunctive relief, the
Board’s action to enforce the Act will be ineffective. Thus, the Director has
demonstrated harm for which there is no adequate remedy at law.
“The interest at stake in a § 10(j) proceeding is the public interest in the
integrity of the collective bargaining process.” Am. Red Cross, 714 F.3d at 557. “The
public interest is furthered, in part, by ensuring that an unfair labor practice will
not succeed because the Board takes too long to investigate and adjudicate the
charge.” Spurlino Materials, 546 F.3d at 502.
Here, the harm posed to the Union by allowing Barrett’s and Subijano’s
terminations to stand is readily apparent. As discussed, the evidence shows that
organizing activity has already become less popular among Universal’s employees
since the terminations. It is in the public interest to return Barnett and Subijano to
their positions in order to send a message to Universal’s employees that federal law
protects their organizing activities.
Likelihood of Success
“A party moving for preliminary injunctive relief need not demonstrate a
likelihood of absolute success on the merits. Instead, [the party] must only show
that [its] chances to succeed on [its] claims are ‘better than negligible.’” Whitaker By
Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1046 (7th
Cir. 2017) (quoting Cooper v. Salazar, 196 F.3d 809, 813 (7th Cir. 1999)). The
Seventh Circuit has described this as “a low threshold.” Whitaker, 858 F.3d at 1046.
Success on the merits in a complaint for violation of Section 8 of the Act requires the
Director to prove “that the terminations were motivated by a desire to thwart
protected activity.” N.L.R.B. v. Electro-Voice, Inc., 83 F.3d 1559, 1568 (7th Cir.
1996). “Once the Director meets [this] burden, the burden shifts to the employer to
demonstrate . . . that [it] would have terminated the employees irrespective of the
protected activity.” Id.
There is no dispute that Barnett and Subijano were fired because of the
statements they made to the press during the March 31 strike. The dispute here is
about the reason Universal decided those statements constituted a fireable offense:
was it because the statements were made as part of Barnett’s and Subijano’s
activities as union organizing leaders, or because they revealed SSI? If there is a
reasonable argument that the statements did not reveal SSI, then there is an
equally reasonable argument that Barnett and Subijano were not fired because they
revealed SSI, but because of their union involvement.
A number of facts undermine Universal’s explanation for the terminations.
First, it is not clear that Barnett and Subijano revealed SSI. Notably, the
termination letters did not specifically identify what SSI Barnett and Subijano
revealed. Universal now argues that they revealed SSI in that they “identified
themselves as individuals with unescorted access to secure areas of the airport,
disclosed training materials and methods, and identified the secure communication
equipment used on the airfield.” R. 27 at 2. The relevant federal regulation defines
SSI in relevant part as the following:
(4) Performance specifications. Any performance
specification and any description of a test object or test
(ii) Any communications equipment used by the
Federal government or any other person in carrying out
or complying with any aviation or maritime
transportation security requirements of Federal law.
(8) Security measures. Specific details of aviation,
maritime, or rail transportation security measures, both
operational and technical, whether applied directly by
the Federal government or another person, including—
(i) Security measures or protocols recommended by
the Federal government; . . .
(iv) Any armed security officer procedures issued
by TSA under 49 C.F.R. part 1562.
(9) Security screening information. The following
information regarding screening under aviation or
maritime transportation security requirements of
(i) Any procedures, including selection criteria and
any comments, instructions, and implementing guidance
pertaining thereto, for screening of persons, accessible
property, checked baggage, U.S. mail, stores, and cargo,
that is conducted by the Federal government or any other
(ii) Information and sources of information used by
a passenger or property screening program or system,
including an automated screening system.
(iii) Detailed information about the locations at
which particular screening methods or equipment are
used, only if determined by TSA to be SSI.
(10) Security training materials. Records created or
obtained for the purpose of training persons employed by,
contracted with, or acting for the Federal government or
another person to carry out aviation, maritime, or rail
recommended by DHS or DOT.
(11) Identifying information of certain transportation
(i) Lists of the names or other identifying
information that identify persons as—
(A) Having unescorted access to a secure area of
an airport, a rail secure area, or a secure or restricted
area of a maritime facility, port area, or vessel.
(B) Holding a position as a security screener
employed by or under contract with the Federal
government pursuant to aviation or maritime
transportation security requirements of Federal law,
where such lists are aggregated by airport.
49 C.F.R. § 1520.5(b).
Subijano’s statements, as quoted in press articles, did not mention her access
to secure areas of the airport. She stated that she was equipped with “nothing . . .
but a radio,” but she did not reveal any “specifications” about the radio or how it is
“tested,” as referenced in subsection (4)(ii) of the regulation quoted above. The
article discussed a training video, and implied that it was the training video
Subijano watched. But there are no quotes from Subijano about the video in the
articles. Moreoever, the article notes that the video is publicly available, so it is not
reasonable to say that Subijano “revealed” any information about her training even
if she was the source of the information about the video.
Barnett did not discuss her training or equipment at all. She stated that she
guarded “entranceways at the airport,” including “secure doors” used by employees
and vendors. Barnett, however, did not state that she was posted at secure
entrances by herself, and she did not reveal whether she has complete discretion to
permit people to enter secure airways. Thus, her statements do not unambiguously
reveal that she has or can provide “unescorted” access to secure areas. Furthermore,
Universal security guards like Barnett and Subijano wear badges that display their
names. See R. 23-2 at 37-38 (36:20–37:17) (Barnett testimony); id. at 69 (68:2-10)
(Subijano testimony); R. 23-3 at 69 (348:2-14) (testimony of Tim Mayberry,
Universal’s Project Manager for Airport Systems). Thus, their identities as airport
security guards were already publicly available before they made their statements
to the press. Universal’s contention that it thought Barnett’s and Subijano’s
identities were SSI is belied by that fact Universal requires them to display their
Universal argues that the warning notices TSA issued to it, Barnett and
Subijano, demonstrate that TSA believes Barnett’s and Subijano’s statements
disclosed SSI. It may be that TSA would find that the statements disclosed SSI. But
the “warning notices” do not constitute a final adjudication of any issue, nor do they
include any analysis of Barnett’s and Subijano’s statements with respect to the
regulatory definition of SSI. Thus, the TSA’s warning letters are not dispositive
evidence the TSA’s opinion on this issue.
Rather than serve as evidence that Barnett and Subijano disclosed SSI, the
TSA’s warning notices state that Universal may have failed to follow federal
regulations setting forth Universal’s obligations in a case of SSI disclosure. The TSA
notices indicate that Universal is under an obligation to report disclosure of SSI to
TSA, and that the Chicago Tribune article suggested that Universal failed to fulfill
this obligation. At oral argument, Universal’s counsel argued that Universal was
“stunned” by Barnett’s and Subijano’s statements, and because they were so out of
the ordinary, it took two weeks for Universal to determine the appropriate course of
action. Universal’s failure, after a two week investigation, to discover that it had an
obligation to report the disclosure of SSI to TSA, undermines Universal’s contention
that it fired Barnett and Subijano because they disclosed SSI. There is a reasonable
argument that if Universal had in fact made a determination that Barnett and
Subijano disclosed SSI, then Universal would also have fulfilled its obligation to
disclose the incident to TSA. This failure calls into question Universal’s motives in
firing Barnett and Subijano.
Universal argues that Barnett’s and Subijano’s statements threatened the
safety of the airport. But the two week delay in their dismissal undermines this
argument as well. Universal argues that it is primary concerned with the safety
implications of Barnett and Subijano publicly disclosing their identities as airport
security guards. But this conclusion requires no significant analysis. If public
disclosure of employees’ identities is such a clear and present security risk,
Universal should have fired Barnett and Subijano the moment their identities
appeared in the newspaper (and not required security guards to wear nametags).
But Universal waited two weeks to fire them. A statement disclosing information
that clearly implicated airport security should have resulted in immediate
termination, not the two weeks of consideration that occurred here.
The ambiguity of the statements in question, and the evidence undermining
Universal’s alleged motives, create a reasonable argument that Universal
terminated Barnett and Subijano because of their public involvement in union
organizing, and not because they disclosed SSI. This is sufficient to demonstrate at
least a “better than negligible” chance of success on the merits.
Balance of Potential Harms
Irreparable Harm to the Union
“[T]he discharge of active and open union supporters risks a serious adverse
impact on employee interest in unionization and can create irreparable harm to the
collective bargaining process.” Frankl v. HTH Corp., 650 F.3d 1334, 1363 (9th Cir.
2011). In addressing whether there is an adequate remedy at law, the Court has
already reviewed evidence indicating that Barnett’s and Subijano’s terminations
chilled union organizing activity among Universal’s employees at O’Hare. This
evidence also serves to demonstrate that the Union is likely to suffer irreparable
Universal contends, however, that the Director’s delay in filing for the
injunction and his actions to postpone the ALJ hearings shows this is not a case
where a 10(j) injunction is appropriate or necessary. See R. 27. But the nearly 12
month delay in this case between Barnett’s and Subijano’s terminations and the
filing of the Director’s petition for injunctive relief is not unusual. See Bloedorn v.
Francisco Foods, Inc., 276 F.3d 270, 299 (7th Cir. 2001) (two years); Frankl, 650
F.3d at 1363 (three years); Overstreet v. El Paso Disposal, L.P., 625 F.3d 844, 850,
856 (5th Cir. 2010) (19 months); Muffley v. Spartan Mining Co., 570 F.3d 534, 54445 (4th Cir. 2009) (18 months); Hirsch v. Dorsey Trailers, 147 F.3d 243, 248-49 (3d
Cir. 1998) (14 months).
Universal cites a court in this district denying a petition, in part, because the
Board’s “knowledgeable [15 month] delay implies that any harm the . . . employees
face is neither urgent nor exclusive to administrative delay.” Sung Ohr v. Arlington
Metals Corp., 148 F. Supp. 3d 659, 674 (N.D. Ill. 2015). That case, however,
concerned an already-established union from which the employer withdrew
recognition as a tactic to end collective bargaining negotiations. The Board in that
case sought an injunction ordering the employer back to the bargaining table. The
court in Arlington Metals noted that such an order would not work to “preserve the
status quo,” but would “accelerate what at this point only may be the ultimate
remedy.” Id. at 674. This is distinguished from the case here where there is
evidence that Universal’s terminations of Barnett and Subijano are an existential
threat to a fledging union. Additionally, in Arlington Metals, the administrative law
judge had already issued a decision in the union’s favor by the time the Board
sought an injunction. The district court found that “the normal administrative
process which is well under way will constitute adequate relief,” so that “time is not
of the essence.” Id. at 675. By contrast, here the administrative hearing is only
recently concluded and it is impossible to predict when the administrative law judge
will issue a decision. The fragility of the process to unionize Universal’s employees,
combined with the fact that the administrative proceedings are not as far along,
distinguishes this case from Arlington Metals.
For these reasons, the Court finds that the Director has demonstrated a
likelihood of irreparable harm, despite the twelve month delay between the incident
at issue and the filing of the petition for injunctive relief.
Potential Harm to Universal
The demonstrated harm to union organizing activity protected by the Act
must be balanced against any potential harm Universal faces from reinstatement.
Universal argues that a reinstatement order would harm it because it will be left
“unable to effectively enforce federal and state laws related to SSI and confidential
information.” R. 27 at 15. But this argument assumes Universal’s conclusion that
Barnett and Subijano disclosed SSI. Whether this conclusion was justified is what is
at issue in this case. Universal’s ability to enforce relevant regulations will be
protected if the Board and federal court ultimately determine that those regulations
take precedence over laws protecting labor organizing. Thus, this asserted harm
carries no weight.
At oral argument Universal also argued that reinstatement might require it
to terminate current employees. But Universal employs almost 200 employees at
O’Hare, and Universal’s counsel admitted at oral argument that there is certainly
an “ebb and flow” to Universal’s staff at O’Hare. For these reasons, the Court does
not consider Universal’s burden to make personnel decisions a serious potential
harm to Universal.
Although not a harm to Universal as an employer, Universal argues that
reinstatement will threaten the safety of the airport. As discussed, Universal’s own
actions belie this argument. Furthermore, if safety is truly implicated, the Court
would expect the TSA to have said so. None of the three warning notices TSA issued
in this case address Barnett’s or Subijano’s potential continued employment. Nor
has TSA intervened in this case—whether as a party or amicus—to address that
issue with the Court.
Balancing & Burden
For these reasons, the Court finds that the balance of the harms tips almost
entirely in the Director’s favor. Accordingly, the Director has more than met his
burden to demonstrate likelihood of success on the merits.
For the foregoing reasons, the Petition  is granted.
The Respondent, Universal Security, Inc., its officers, agents, successors and
assigns, shall cease and desist from:
employees because they engaged in concerted protected activity;
b) Maintaining or enforcing its rule prohibiting employees from speaking
to the media;
c) In any like related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed them by Section 7 of
the National Labor Relations Act.
Further, Respondent, its officers, agents and representatives shall:
a) Within in five days from the date of this Order, offer, in writing, Sadaf
Subijano and Marcie Barnett immediate reinstatement to their former
positions, or, if their positions no longer exist, to substantially
equivalent positions without prejudice to their seniority or any other
rights and privileges previously enjoyed and displacing, if necessary,
any employee who has been hired or reassigned to replace them;
b) Temporarily expunge any references to the discharges of Marcie
Barnett and Sadaf Subijano from their personnel files and not rely on
such discharges in any future discipline imposed prior to a final order
from the National Labor Relations Board;
c) Within seven days from the date of this Order, post copies of this Order
at all locations where Respondent’s noticed to employees are
customarily posted; maintain such notices free from all obstructions or
administrative proceeding; and grant to agents of the National Labor
Relations Board reasonable access to the Respondent’s facility to
monitor compliance with this posting requirement;
d) Within twenty days of the issuance of this Order, file with this Court
and serve a copy upon the Regional Director of Region 13 of the
National Labor Relations Board, a sworn affidavit from a responsible
official which describes with specificity how the Respondent has
complied with the terms of this decree, including the exact locations
where the Respondent has posted the materials required under this
Honorable Thomas M. Durkin
United States District Judge
Dated: August 17, 2017
Nothing in this Order should be construed as absolving Universal employees from
complying with TSA and other applicable federal and state regulations.
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