Hitterman v. Universal Security Inc.

Filing 37

MOTION by Respondent Universal Security Inc. for judgment Motion for Relief from Judgment and to Stay the Execution of the Court's Order (Lynch, John)

JPL/WPB:tjc

673-15-8
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

PAUL HITTERMAN, ACTING REGIONAL
DIRECTOR OF REGION 13 OF THE NATIONAL
LABOR RELATIONS BOARD FOR AND ON
BEHALF OF THE NATIONAL LABOR
RELATIONS BOARD,
Petitioner,
v.
UNIVERSAL SECURITY, INC.,
Respondent.

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No.: 1:17-cv-2616

MOTION FOR RELIEF FROM JUDGMENT AND TO STAY THE EXECUTION OF
THE COURT’S ORDER
Respondent, UNIVERSAL SECURITY, INC. (“Universal”), by its attorneys, John P.
Lynch, Jr., William P. Bingle, and CREMER, SPINA, SHAUGHNESSY, JANSEN &
SIEGERT, LLC., moves this Court for relief from judgment pursuant to Fed. R. Civ. P. 60 and to
stay the execution of the Court’s August 17, 2017 Order pursuant to Fed. R. Civ. P. 62 pending
disposition of the motion for relief from judgment, and in support thereof states as follows:
1.

On motion and just terms, a district court may correct a mistake arising from

oversight when one is found in the record and may relieve a party from a final judgment for such
mistake and/or other reasons justifying relief. Fed. R. Civ. P. 60(a) & (b). A motion for relief
from judgment is proper where the court has misunderstood a party. Bank of Waunakee v.
Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir.1990). Relief under Rule 60(b) is
warranted upon a showing of extraordinary circumstances creating a substantial danger that the

judgment was unjust. Dickerson v. Board of Educ. of Ford Heights, 32 F.3d 1114, 1116 (7th
Dist. 1994). Respectfully, Universal argues here that several key matters were overlooked and/or
misunderstood in this Court’s August 17, 2017 order and, as such, Court’s judgment was unjust
and should be vacated.
2.

The predominant – and almost singular – focus in the Memorandum Opinion and

Order is whether Subijano and Barnett disclosed sensitive security information (“SSI”). While
they clearly disclosed SSI in their unfortunate statements to the media, this is not all they did
wrong and was not the only basis for their terminations. Subijano and Barnett also disclosed
confidential information in violation of state law and their training, which was an independent,
sufficient cause for their terminations. This important issue was ignored by the Court – much as
it was ignored by the petitioner. (Doc. 27, pp. 11-14.) Universal’s argument did not hinge on a
determination that Subijano and Barnett disclosed SSI – although they clearly did.
3.

The Court noted early on in its decision that the terminations were due in part to

disclosures by the complainants of the details of their security work at O’Hare, but its analysis of
that issue stopped there. (Memorandum Opinion and Order, p. 5.) It was well established that
Subijano and Barnett were trained that the details of their jobs were not to be disclosed to
unauthorized persons. (Tr. 321.) Through this training process (mandated by the City of
Chicago) they were aware that their job duties were confidential and were not to be disclosed to
unauthorized persons. (Tr. 89, 321.)

The Illinois Department of Professional Regulations

(“IDPR”) prohibits Universal’s guards from disclosing confidential information learned within
the course of their employment. Both Subijano and Barnett, however, admittedly disclosed such
confidential information. (Doc. 27, pp. 9-11.)
Barnett admitted:

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Q.

You identified yourself as somebody having access to security areas of the
airport, true?

A.

Yes.

Q.

And that was a statement that was prepared well before it was given, correct?

A.

Yes.

Q.

And you didn’t discuss with anybody, with Universal, or with the City or with
TSA that you were going to give that statement, did you?

A.

No, I did not.

(Tr. 39-40.)
…
Q.

And you’re advised that if you divulge confidential information or sensitive
security information to people who are not otherwise authorized to know, that
could lead to discipline, correct?

A.

Yes.

(Tr. 44-45.)
Subijano admitted:
Q.

And in the interviews you identified yourself as a security guard with Universal,
correct?

A.

Yes.

Q.

And you identified yourself as somebody who worked out on the airfield, correct?

A.

Yes.

Q.

And you identified yourself as communicating with a radio, true?

A.

Yes.

Q.

In fact, you told Mr. Brown we have nothing but a radio with which to
communicate with command center, correct?

A.

Yes.

(Tr. 74.)

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…
Q.

Before you worked for Universal, you understood that your work as a security
guard at the airport was confidential, true?

A.

Yes.

(Tr. 85.)
…
Q.

And you’re instructed that that film [SIDA] is confidential, true?

A.

Yeah, everything is confidential.

Q.

Right. And during that film you’re told that the detail of the airport security
program should not be discussed with anyone other than those with authority to
know, correct?

A.

Right.

Q.

You know through your training through Andy Frain and through McCoy and
through the SIDA film that how you do what you do at the airport, in terms of
security, is confidential, correct?

A.

Yes.

Q.

And by confidential, you’re instructed not to share that with people -- that
information with people who don’t otherwise have an authority to know that
information, true?

A.

Yes.

(Tr. 88-89.)
…
Q.

You knew that when you worked at Universal that if you disclosed sensitive
information you could be terminated, correct?

A.

Correct.

(Tr. 94.)
Section 10(c) of the National Labor Relations Act (the “Act”) states: “No order of the Board
shall require the reinstatement of any individual as an employee who has been suspended or

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discharged…if such individual was suspended or discharged for cause.” Aside from disclosing
SSI, they clearly, admittedly, and repeatedly violated their instruction and training – and the law.
They disclosed themselves as having access to the airfield and entranceways. Like the employer
in IBM Corp., 265 NLRB 638 (1982) who was found to have not violated the Act in terminating
an employee for disseminating confidential information, which would normally have been
protected activity, Universal had sufficient cause to terminate Subijano and Barnett for violations
beyond their disclosures of SSI.
4.

Subijano’s and/or Barnett’s statements have made themselves (and by extension

O’Hare Airport) targets. In March of 2017, the FBI, the Department of Homeland Security, and
the National Counterterrorism Center warned America’s airlines and airports that they remain
top targets for terrorists. The memorandum included a warning of the insider threat posed by
airport employees giving outsiders access to secure areas and planes. Tom Winter and Andrew
Blankstein, Feds Remind U.S. Airports, Airlines They Are Terror Targets, NBC News, March
22,

2017,

http://www.nbcnews.com/news/us-news/feds-remind-u-s-airports-airlines-they-are-

terror-targets-n737416. This is why security guards are trained to keep the details of their work
confidential, and this is why guards who violate their training can no longer serve as guards.
5.

The Court’s rationale that Subijano and Barnett did not disclose SSI was based

significantly on the fact that they wore name tags. But the ID badges required by the TSA and
worn by all O’Hare employees, including Universal’s guards, do not identify what areas of the
airport the employee/guard has access to or what they do in those areas. (Tr. 57-58, 75-76.) The
fact that Subijano and Barnett worked on the airfield and policed entranceways became public
knowledge only when they disclosed that information. Perhaps the name of a security guard can
be determined by looking at his or her badge. But even a thorough visual inspection of a

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Universal guard’s badge cannot uncover either the areas of the airport to which that guard has
access or that guard’s duties. The badge simply does not supply that information, and the
petitioner never claimed that it did. (Doc. 27, p. 14; Tr. 315.) The Court’s decision in this case
reveals the mistaken view that name tags disclose where the guard works and what he or she
does. Yet there is no support for this in the record.
6.

The Court opined that Subijano’s media statements do not mention her access to

secure areas of O’Hare but, respectfully, this is not accurate. Subijano’s statements to the media,
including, “Bam! I’m on the airfield,” demonstrated that she had unescorted access to the
airfield, a secure area of O’Hare. (Doc. 27, p. 12; Resp. Exs. 12, 13.) To be sure, we all know
that airfields are secure areas. Barnett specifically stated, “I guard entranceways at the airport
and assure that no one gets through that is not supposed to be there.” (Doc. 27, p. 10.; emphasis
added.) Neither mentioned requiring escorts for this work or working with anyone else. And, in
any event, these statements contain details of the security work of Subijano and Barnett. It is
uncontested that the details of their work were to be treated confidentially, and they were not.
7.

The Court misinterpreted Universal’s argument regarding Subijano’s disclosure of

the training video. The training video shown to Universal’s guards was publicly available.
However, it was not known that this video was used to train guards as until Subijano’s made her
public statement. (Resp. Ex. 14.) As such, this statement violated 49 C.F.R. § 1520.5(b)(10).
Now that the use of this video as a training tool has been made public, those seeking to do the
traveling public harm have information as to how guards are trained to react in response to
certain threats. To be sure, this is valuable information to a terrorist. The disclosure of the use of
the video was a disclosure of security details, confidential information and a violation of
corporate training and policy.

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8.

Sarah Sahed’s self-serving testimony that Subijano and Barnett were leaders in

the unionization campaign is undermined by the meeting attendance sheets. Leading up to the
March 31, 2016 strike, the union held seven organizing meetings: January 29, February 11, and
March 3, 10, 16, 22, and 23. (GC Exs. 4-10.) Subijano attended organizing meetings on
February 11 and March 10 and 16 (GC Exs. 5, 7-8) and Barnett attended on March 16, 22, and
23 (GC Exs. 8-10.). It is unlikely that two of the alleged leaders for unionization would each
attend only three – less than half – of the organizing meetings prior to a highly publicized strike.
In addition, the hearsay nature of Sahed’s testimony was objected to repeatedly by counsel for
Universal.
9.

The General Counsel, who is required to establish that “[the Board] has no

adequate remedy at law,” has not produced any evidence to establish the current participation in
the unionization effort by Universal’s guards. Am. Red Cross, 714 F.3d 553, 556 (7th Cir. 2013);
Lineback v. Spurlino Materials, LLC, 546 F.3d 491, 500 (7th Cir. 2008). The most recent
evidence produced regarding union meeting attendance by Universal’s guards is from December
of 2016, more than eight months ago. Notably, Sahed stated that she had detailed information
(even rankings) regarding airport employee participation in the union. This information was
never produced. This lack of evidence prevents the General Counsel from establishing an
inadequate remedy at law.
10.

Universal has argued that the delay in filing the section 10(j) petition

demonstrates that a temporary injunction is unnecessary. (See Doc. 27.) The Court disagreed
with that argument and cites five cases in its memorandum opinion to support the premise that
10(j) petitions have been granted in cases with longer gaps between the violation and the filing of
a petition. However, in each of the cases cited by the Court, there was significant evidence of

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anti-union animus and/or the ALJ had already ruled in favor of the petitioner. Bloedorn v.
Francisco Foods, Inc., 276 F.3d 270, 277-281(7th Cir. 2001) (new owner of grocery store
informed an employee that the store wouldn’t remain a union store, said that she would not
immediately recognize the existing union, and stated that she would hire only 50% of the former
employees because she wouldn’t have the union and couldn’t afford it); Frankl v. HTH Corp.,
650 F.3d 1334, 1359 (9th Cir. 2011) (ALJ found that employer had committed unfair labor
practices because it bargained in bad faith and unilaterally changed terms and conditions of
employment after it withdrew recognition from the union); Overstreet v. El Paso Disposal, L.P.,
625 F.3d 844, 849-850 (5th Cir. 2010) (ALJ found that an employer violated the Act where it told
employees how to get rid of the union and informed employees that if they struck, they would be
replaced); Muffley v. Spartan Mining Co., 570 F.3d 534, 538 (4th Cir. 2009) (ALJ found that
operator of coal mining facility systematically discriminated against union members by refusing
to grant them interviews and instead filled vacant positions with inexperienced trainees and
nonunion employees); Hirsch v. Dorsey Trailers, Inc., 147 F.3d 243, 246 (3rd Cir. 1998) (the
ALJ found that the employer committed unfair labor practices where it threatened to close its
plant if the workers called a strike; employer eventually did close the plant for that reason). The
delay in filing a 10(j) petition was found to be acceptable in those matters because there was
significant evidence and/or an administrative finding that anti-union animus had occurred. That
is simply not the case here, as the only alleged evidence of anti-union animus is the timing of the
terminations. These cases should not be afforded significant weight in the Court’s opinion.
11.

Notably, while the General Counsel has not been penalized for violating his own

practices and waiting a year to seek injunctive relief, Universal has been penalized for waiting
two weeks to terminate Barnett and Subijano after their disclosures of confidential information.

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The Court expressed the view that if their disclosures were a security threat they would have
been terminated immediately. There is substantial evidence in the record, however, that
Universal was “stunned” by this misconduct and it took some time for Universal to evaluate the
proper course of action. There is no evidence that Subijano and Barnett had access to secure
areas of the airport at this time.
12.

To recap, Subijano and Barnett were charged with, as Barnett said, the

responsibility to “keep the airport safe.” But on March 31, 2016 these security guards who work
at what the FBI, the Department of Homeland Security, and the National Counterterrorism
Center warned is one of the “top targets for terrorists” told the world in print, on the internet, and
on television: (a) their names, (b) their employer’s name, (c) what they look like (through
pictures and video), (d) that they have access to the O’Hare Airport airfield (Subijano) and
entranceways (Barnett), (e) what training videos Universal guards were trained with, and (f) that
they communicate only with a radio on the airfield. It would be naïve to think that this
information isn’t in the files of the many terrorist organizations that are active across the world
today and wreak havoc when presented with the slightest opportunity. What Barnett’s and
Subijano’s disclosures provide is more opportunities for havoc. Their conduct was antithetical to
what security guards are supposed to do. Without question, their conduct made the airport less
secure, violated their training and state and federal law. The petitioner has failed to meet its
burden and the Court’s decision to the contrary should be reversed.
13.

The reinstatement of Subijano and/or Barnett will create a security threat to

O’Hare Airport and the traveling public, just as the statements of Subijano and Barnett did when
they were made. That threat, along with the foregoing list of mistakes, misinterpretations, and
misunderstandings, establishes a substantial danger that the Court’s August 17, 2017

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Memorandum Opinion and Order was unjust.

For these reasons, this Court should grant

Universal’s requested relief from judgment.
14.

The district court has discretion to stay execution of a judgment pending

disposition of a Rule 60(b) motion on such conditions for the security (e.g. a bond) of the
adverse party as are proper. Fed. R. Civ. P. 62(b); Houben v. Telular Corp., 309 F.3d 1028,
1038 (7th Cir. 2002). Initially, there is no need for a bond here as there have been no monetary
damages awarded. Four factors are used to determine whether a stay is appropriate pursuant to
Rule 62(b): “(1) whether the stay applicant has made a strong showing that he is likely to
succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3)
whether issuance of the stay will substantially injure the other parties interested in the
proceeding; and (4) where the public interest lies.” F.T.C. v. QT, Inc., 472 F.Supp.2d 990, 997
(N.D.Ill. 2007), citing Hilton v. Braunskill, 481 U.S. 770, 776 (1987).
15.

As demonstrated in the foregoing paragraphs, Universal has made a strong

showing that its Rule 60(b) motion will succeed on the merits. Absent a stay, Universal will be
required to post two guards at O’Hare that have knowingly disclosed confidential information
and violated their instruction and training. In addition, reinstating Subijano and Barnett would
undermine Universal’s authority amongst its remaining guards, making it more difficult to
enforce federal and state regulations, discipline and the terms of its contract with the City of
Chicago. Issuance of the stay will not substantially injure the other parties in this proceeding, as
there are no monetary damages at issue and all ordered relief will remain available. Indeed, the
petitioner waited a year to bring this action. Finally, as stated above, there is a strong public
interest in providing safe and secure airports for the traveling public which would be threatened

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and undermined by reinstating Subijano and/or Barnett. For these reasons, this Court should stay
the execution of its August 17, 2017 judgment pending disposition of the Rule 60(b) motion.
WHEREFORE, Respondent, UNIVERSAL SECURITY, INC., respectfully requests that
this Honorable Court grant its Motion for Relief from Judgment pursuant to Fed. R. Civ. P. 60
and deny the Section 10(j) Petition of PAUL HITTERMAN, ACTING REGIONAL DIRECTOR
OF REGION 13 OF THE NATIONAL LABOR RELATIONS BOARD FOR AND ON
BEHALF OF THE NATIONAL LABOR RELATIONS BOARD, and stay the execution of the
August 17, 2017 Order pursuant to Fed. R. Civ. P. 62 pending disposition of this Motion for
Relief from Judgment, and for any other relief deemed appropriate by this Honorable Court

CREMER, SPINA, SHAUGHNESSY, JANSEN
& SIEGERT, LLC

By: /s/ John P. Lynch, Jr.
One of the Attorneys for Respondent

John P. Lynch, Jr.
William P. Bingle
CREMER, SPINA, SHAUGHNESSY, JANSEN & SIEGERT, LLC
One North Franklin
10th Floor
Chicago, IL 60606
[phone]
361425

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CERTIFICATE OF SERVICE
PLEASE TAKE NOTICE that on September 1, 2017, there was e-filed with the United
States District Court, Northern District of Illinois, Eastern Division, on behalf of Respondent,
Universal Security, Inc. its Motion for Relief from Judgment and to Stay the Execution of
the Court’s Order, copies of which are attached hereto and hereby served upon the following:
Courtesy Copy via hand delivery: Honorable Judge Thomas Durkin
Via Electronic Mail:

Nicholas Rowe
Andrea James
Helen Gutierrez
Michele Cotrupe
Respectfully Submitted,
By: /s/ John P. Lynch, Jr.
One of the Attorneys for Respondent
CREMER, SPINA, SHAUGHNESSY, JANSEN &
SIEGERT, LLC
One North Franklin, 10th Floor
Chicago, Illinois 60606
Tel: [phone]
Fax: [phone]
361425

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