Sunday, December 05, 1999
UPS didn't promote pilot to high enough job to fire him
BENCHMARKS
BY BEN L. KAUFMAN
The Cincinnati Enquirer
United Parcel Service didn't deny promoting pilot Frank Robbins Dorsey just so it could fire him for union organizing.
However, UPS failed to promote him high enough to remove him from the protection of federal labor law.
In a clear decision, 6th Circuit Judges Gilbert S. Merritt, Eric L. Clay and Ann Aldrich sent the case back to the trial judge in Louisville with orders to:
• Grant summary judgment to Mr. Dorsey.
• Let jurors decide how much UPS owes him for violating his rights.
“It is undisputed that UPS first transferred Dorsey from one job to another, then refused to allow him to return to his old job and discharged him — all expressly because he engaged in union organizing activity,” Judge Merritt wrote.
UPS never denied it.
The pivotal question was whether U.S. District Judge John G. Heyburn II erred when he said Mr. Dorsey was a manager whose union organizing was not protected from retaliation by the federal Railway Labor Act.
He wasn't, the 6th Circuit said. Instead, he was a “subordinate official” protected by that law.
Judge Heyburn also said Mr. Dorsey failed to claim the transfer itself was impermissible retaliation under the law.
That misread the complaint, Judge Merritt wrote, and Mr. Dorsey wins that point, too.
The 1926 Railway Labor Act was amended in 1936 to add airline employees to workers whose right to unionize was protected.
Mr. Dorsey was a flight training supervisor who tried to organize oth er flight training supervisors, assistant chief pilots, and supervisors of systems operations, flight standards and flight testing.
UPS responded by making him an assistant chief pilot, a position with more management responsibilities.
Whether that made him management forced the 6th Circuit to look for definitions.
They said neither a federal appellate court nor the Supreme Court had defined “subordinate official” and the term “official” is not found in other labor rulings.
So the judges turned to the definition used by the National Mediation Board, which oversees disputes under the Railway Labor Act. The court concluded that a protected “subordinate official” could be a worker “at a higher level than mere employees and laborers with no supervisory authority.”
No one wants Mark Alexander Zhislin, an immigrant who abused this country's welcome.
Born in Kharkiv when Ukraine was part of the Soviet Union, he and his family came to the United States to avoid religious persecution in 1979.
Before long, Mr. Zhislin began breaking U.S. drug laws. He was convicted in Florida in 1983 and 1985, and the Immigration and Naturalization Service (INS) tried to deport him in 1988 before the Soviet Union broke up.
Mr. Zhislin persuaded an immigration judge to grant him a discretionary waiver in 1989.
A year later, Mr. Zhislin was caught shipping marijuana. He pleaded guilty and was sentenced to five years in federal prison.
In 1995, he was released, and the INS ordered him deported to post-Communist Ukraine or Israel. Since then, he has been in INS custody.
In September 1996, INS refused to free him on bond, saying he was a threat to society. Israel refused to admit him, and Ukraine refused to let him return. INS flew him to the Dominican Republic, for which he had a tourist visa, but that Caribbean nation denied him entry.
Mr. Zhislin says he has failed to win a visa from 34 countries, and he wants to be freed from INS custody.
To that end, he sued the INS, saying it has no right to detain him indefinitely when it appears that circumstances will prevent him from ever being deported.
U.S. District Judge John T. Nixon in Nashville refused to consider the case. He said Congress barred federal courts from hearing challenges to the constitutionality of a deportation order or the right of the government to enforce such an order.
Mr. Zhislin appealed and got his first break.
6th Circuit Judges David A. Nelson, Danny J. Boggs and Eric L. Clay said a recent Supreme Court decision made it clear that Mr. Zhislin's challenge did not fall in categories forbidden to court review.
They sent the case back to Judge Nixon for a hearing.
Nine days of freedom cost drug dealer Peter Robert Wilson 18 months in prison.
Had he begun his original sentence of 64 months in the federal prison in Ashland, Ky., on Jan. 20, 1998, Mr. Wilson's lies might never have been uncovered. But he failed to turn himself in as promised.
Nine days later, he was identified and arrested during a routine traffic stop.
He pleaded guilty to failing to report to prison, and Assistant U.S. Attorney David Bunning in Covington agreed to recommend a reduced sentence for acceptance of responsibility.
The deal died when the probation officer preparing the presentence report learned that Mr. Wilson's real name was Robert Paul Matthews. His criminal record began in 1959 with teen-age felony convictions for burglary and theft.
“It was so long ago, I didn't think it mattered,” Mr. Wilson explained.
Instead of a reduced sentence, Mr. Bunning sought an increase for obstruction of justice, and U.S. District Judge William O. Bertelsman agreed.
Appellate attorney Gary Sergent said the youthful convictions could not be used to increase the sentence, but 6th Circuit Judges Harry Wellford, Karen Nelson Moore and Ronald Lee Gilman said that wasn't the issue.
Mr. Wilson's sentence could be increased to 18 months because Judge Bertelsman's original decision on the failure-to-report sentence might have been different if he'd known about Mr. Wilson's deceit.
Similarly, the appellate court said, Mr. Wilson's guilty plea did not entitle him to a reduced sentence for acceptance of responsibility because he misled the court and probation officer about his identity and criminal record.
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UPS didn't promote pilot to high enough job to fire him
