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United Government Security Officers of America v. Akal Security

October 30, 2006


The opinion of the court was delivered by: Judge Gregory L. Frost

Magistrate Judge Norah McCann King


This matter comes before the Court for consideration of a Motion to Dismiss or in the Alternative for Summary Judgment (Doc. # 9) filed by Defendant Akal Security's ("Akal"), a Memorandum in Opposition (Doc. # 13) filed by Plaintiffs' United Government Security Officers of America, et al.("UGSOA"), and Defendant's Reply Memorandum (Doc. # 18). Specifically, Defendant moves to dismiss pursuant to Rule 12(b)(1), 12(b)(6), and 12(b)(7) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction, failure to state a claim upon which relief can be granted, and/or failure to join an indispensable party. For the reasons that follow, this Court GRANTS Defendant's motion.

I. Facts

The UGSOA is a labor union and the collective bargaining representative for certain Court Security Officers ("CSO's") employed by Akal. Akal provides security services to industry and government and has government contracts with the United States Marshals Service ("USMS") under which it provides security services to various federal courthouses and federal buildings throughout the United States. Local 127 represents the CSOs employed by Akal at the United States Courthouse in Columbus, Ohio. The USMS is neither a party to nor signatory of any of the Collective Bargaining Agreements ("CBA's") between UGSOA and Akal.

In 1997, the United States Judicial Conference Committee on Security and Facilities addressed concerns that CSOs should be medically and physically fit so that they may be able to perform all the duties associated with their position. In 1999, members of the Committee on Security and Facilities decided to implement a medical review system for CSOs. It retained an expert doctor and accepted the doctor's recommendations. Subsequently, the Committee approved the Office of Federal Occupational Health's implementation of the report. The Committee asked the USMS, based on the new medical standards, to create and implement a new physical for CSOs.

After the creation of the new CSO physical exam, beginning in or about 2000 and continuing thereafter, each and every current CSO is required to pass an annual USMS physical exam. If a CSO fails the exam, he or she is medically disqualified from performing services under the contract at which time the USMS issues an order to Akal directing it to remove the CSO from the contract. The USMS originally provided a process for affected CSOs to challenge a medical disqualification via Section H of its Service Contracts with the contract providers. However, that procedure was eliminated in July 2002 for CSOs who were medically disqualified by the USMS.

Akal and UGSOA have been parties to a series of CBA's since 1997. The most recent contract for Local 127 is effective from July 13, 2003 through September 30, 2006. Beginning in April 2006, the UGSOA and Akal entered into contract negotiations for the renewal of their the current CBAs covering the CSOs. The agreement that Akal and UGSOA entered into in July 2003 contains two provisions, Article 5 and 6, that are now the subject of dispute in the current negotiations. Article 5 contains the parties' negotiated grievance procedure for resolving claimed violations, misinterpretation or misapplications of any provisions of the CBA, or any challenge of any disciplinary action taken against a Union Employee. This provision contains an explicit exception: the grievance procedure shall not be used for any action or order of removal of a CSO by the USMS or revocation of required CSO credentials by the USMS pursuant to the contract between Akal and the USMS. Article 6 provides that a CSO may only be suspended or dismissed with "just cause" and that any USMS action or order to remove a CSO from working under their contract with Akal, or revocation of a CSO's credentials by the USMS shall be deemed "just cause." Moreover, Article 6 provides that the USMS makes final decisions on such removals, and the UGSOA and the employee shall hold Akal harmless for any claims after the government has made a final determination.

During the course of the contract negotiations and continuing to date, Akal has insisted that the Articles 5 and 6 remain unchanged and has demanded that the UGSOA accept the Article as they exist. In response, UGSOA has stated that it cannot agree because of the practices of Akal as noted in the paragraphs supra, as well as due to the illegality of the provisions under applicable federal and state statues. The UGSOA and its Locals, including Local 127, advised Akal during 2006 negotiations that Akal's proposal, which kept in place Article 5 and 6, is unlawful inasmuch as it is arbitrary and would have a disparate and discriminatory impact upon bargaining unit members who may in the future have viable claims against Akal for unlawful adverse employment actions. Therefore, UGSOA argued that the proposed language is void as a matter of law and public policy because it requires a prospective waiver of potential claims of the American with Disabilities Act, 42 U.S.C. § 12101 et seq.("ADA"), the Age Discrimination and Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII").

In reply, Akal advised the UGSOA on or about June 14, 2006 and again on or about July 12, 2006 that it would not negotiate with the UGSOA or its Locals, including Local 127, regarding Articles 5 and 6. Since then, Akal has refused to continue with the negotiating process, and has further stated that any increase in wages and benefits will be conditioned upon the UGSOA and its Locals' acceptance of these provisions as presently proposed.

As a consequence of these events, the UGSOA's Amended Complaint (Doc. # 5) seeks the following: a declaratory judgment declaring invalid and unlawful the pertinent provisions of Article 5 and 6; an injunction preventing Akal from promulgating, implementing, or taking further actions pursuant to the Articles; a judgment against Akal for its alleged "breach and abrogation" of its CBAs with UGSOA;*fn1 damages; and attorney's fees and costs. Plaintiffs allege that this Court has subject matter jurisdiction over this lawsuit pursuant to 28 U.S.C. § 1331 because there is a case or controversy that implicates the interpretation, provisions, and applicability of the National Labor Relations Act ("NLRA"), 29 U.S.C. §151 et seq.; § 301(a) of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185 et seq.; the ADA; the ADEA; Title VII; and the Rehabilitation Act of 1973. Akal then filed a Motion to Dismiss or, in the alternative, for Summary Judgment. (Doc. # 9.) Akal's motion is now ripe for disposition.

II. Discussion

A. Plaintiffs' LMRA and NLRA Claims

1. Rule 12(b)(1) Standard of ...

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