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Herrera v. Command Security Corp.

United States Court of Appeals, Ninth Circuit

September 14, 2016

Marlene Herrera; Edward Lopez; Service Employees International Union, United Healthcare Workers-West, United Service Workers West; Alejandro Barrios, Plaintiffs-Appellants,
v.
Command Security Corporation, DBA Aviation Safeguards, a New York Corporation, Defendant-Appellee.

          Submitted March 11, 2016 Pasadena, California

         Appeal from the United States District Court for the Central District of California Stephen V. Wilson, District Judge, Presiding Argued and D.C. No. 2:12-cv-10968-SVW-RZ

          David P. Dean (argued) and Darin M. Dalmat, James & Hoffman P.C., Washington, D.C.; Antonio Ruiz, Weinberg Roger & Rosenfeld PC, Alameda, California; for Plaintiffs-Appellants.

          Mark S. Spring (argued), Carothers Disante & Freudenberger LLP, Sacramento, California; Alfredo Ortega and Steven M. Schneider, Mitchell Silberberg & Knupp LLP, Los Angeles, California; for Defendant-Appellee.

          Before: Harry Pregerson, Richard A. Paez, and Jacqueline H. Nguyen, Circuit Judges.

         SUMMARY [*]

         Labor Law

         The panel reversed the district court's summary judgment in favor of an employer in an action brought under the Railway Labor Act by a union representing employees at Los Angeles International Airport.

         The employer sought to remove the union as its employees' designated representative.

         The panel held that equitable tolling principles applied to the union's unlawful interference and coercion claim under 45 U.S.C. § 152, Third and Fourth. The panel held that this claim was not time-barred because the employer had notice of the union's claims, and the union acted reasonably when it attempted to use the extensive remedies afforded by the Act. The panel also held that the employer violated § 152, Third and Fourth, when it solicited union removal petition signatures, bypassed the union to solicit employees directly, and refused to recognize and negotiate with the union. The panel remanded and directed the district court to grant summary judgment in favor of the union on this claim.

         The panel held that the district court erred in concluding that it lacked subject matter jurisdiction over the union's status quo claim under §§ 152, Seventh; 155; and 156. The union alleged that the employer unilaterally altered the parties' collective bargaining agreement. The panel held that this claim was a major dispute, relating to employer interference and status quo violations, rather than a representation dispute within the exclusive jurisdiction of the National Mediation Board. The panel remanded the status quo claim for the district court to determine whether it was timely, and, if so, to grant summary judgment in favor of the union.

         The panel also directed the district court to grant summary judgment in favor of the union on a failure to mediate claim under § 152, First.

          OPINION

          PREGERSON, Senior Circuit Judge

         INTRODUCTION

         This case arises from a dispute between a union and an employer who wished to remove the union as its employees' designated representative. The employer is Command Security Corporation d/b/a Aviation Safeguards ("Aviation Safeguards"). The union is the United Service Workers West of the Service Employees International Union ("the Union"). The Union sued Aviation Safeguards for violations of the Railway Labor Act ("RLA"), 45 U.S.C. §§ 151-165. Aviation Safeguards moved for summary judgment, and the Union filed a cross-motion for summary judgment. The District Court granted Aviation Safeguards's motion for summary judgment and denied the Union's cross-motion for summary judgment.

         We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse the grant of summary judgment in favor of Aviation Safeguards.

         We hold that equitable tolling principles apply to the Union's unlawful interference and coercion claim under the RLA, 45 U.S.C. § 152, Third and Fourth. We remand and direct the District Court to grant summary judgment in favor of the Union on its claim for unlawful interference and coercion under the RLA, 45 U.S.C. § 152, Third and Fourth.

         We also hold that the District Court erred in finding that it lacked subject matter jurisdiction over the Union's status quo claim under the RLA, 45 U.S.C. §§ 152, Seventh; 155; and 156. We remand this claim for the limited purpose of determining whether this claim is timely and, if the claim is timely, we direct the District Court to grant summary judgment in favor of the Union on its status quo claim under RLA §§ 152, Seventh; 155; and 156.

         We remand and direct the District Court to grant summary judgment in favor of the Union on its failure to mediate claim under the RLA, 45 U.S.C. § 152, First.

         FACTS AND PROCEDURAL BACKGROUND

         Aviation Safeguards employs workers at Los Angeles International Airport ("LAX"). In 2007, a majority of Aviation Safeguards's LAX employees signed authorization cards, designating the Union as their representative. The Union sought voluntary recognition from Aviation Safeguards by presenting the signed authorization cards to Aviation Safeguards. Aviation Safeguards agreed to recognize the Union as the employees' designated representative. In November 2008, Aviation Safeguards and the Union entered into a collective bargaining agreement set to expire in September 2010. In December 2009, before the expiration of the collective bargaining agreement, the parties negotiated a second agreement, set to expire in November 2012.

         As part of the collective bargaining agreement, Aviation Safeguards made monthly contributions to a health care trust fund. These payments rose annually: in 2009, Aviation Safeguards paid $585 per month for each employee; in 2010, $620; and in 2011, $674. When the 2011 increases took place, Aviation Safeguards's LAX General Manager Joe Conlon wrote a letter to the Union President, saying that they had reached a "crossroad."[1] Conlon refused the Union President's request to discuss Aviation Safeguards's concerns. Instead, Aviation Safeguards conducted a survey to assess the likelihood that its employees would revoke the Union's status as representative. In an August 15, 2011, email to its managers, Aviation Safeguards Human Resources Manager Jon Natividad wrote, "We are trying to get an initial estimate of the numbers we have and the individuals we will need to actively convince to come over to our side and sign to de-certify."[2]

         At the start of September 2011, Aviation Safeguards began holding anti-union meetings with employees. Aviation Safeguards drafted a Union Removal Petition, which it encouraged employees to sign. The Union claims that shortly thereafter, a group of employees delivered to the LAX main office a Pro-Union Petition signed by a majority of the employees. Allegedly, this Pro-Union Petition included 39 signatures of employees who had previously signed the Union Removal Petition.[3]

         By October 12, 2011, Aviation Safeguards had failed to obtain a majority of employees' signatures on the Union Removal Petition. On October 13, 2011, Aviation Safeguards hired Cruz & Associates, a self-proclaimed union avoidance firm, to assist its union removal efforts. With the Cruz & Associates team, Aviation Safeguards held ostensibly mandatory meetings with its employees, during working hours, to foment anti-union sentiment and obtain Union Removal Petition signatures. Aviation Safeguards hid the true purpose of these meetings from employees.[4] At these meetings, Cruz & Associates team members and Aviation Safeguards representatives told employees that their wages would increase if they got rid of the Union.

         On December 2, 2011, Aviation Safeguards was 23 employee signatures short of majority (227) support, so Aviation Safeguards hired new employees who were immediately solicited for Union Removal Petition signatures. By the end of December, Aviation Safeguards claimed that it obtained 246 Union Removal Petition signatures, which allegedly included the 39 signatures of employees who later signed the Pro-Union Petition.[5]

         On December 30, 2011, Aviation Safeguards announced that it would no longer recognize the Union and planned to change its employees' health benefits and wages starting February 1, 2012.

         The Union applied to the National Mediation Board ("the Mediation Board") for mediation services on January 3, 2012. The Mediation Board conducted a pre-docketing investigation that lasted nearly six months to determine whether to mediate the dispute.

         Aviation Safeguards asserted that it began enrolling employees in non-union health insurance at the end of January 2012, but that it had not completed the process by the start of February 2012. In the meantime, in January 2012, the Union claimed that a majority of employees (258) had signed the Pro-Union Petition.

         On February 6, 2012, former L.A. City Councilmember Bill Rosendahl publicly counted the number of Aviation Safeguards employee signatures and confirmed that a majority of the employees supported the Union.[6] By May 31, 2012, the Union also stated that it obtained 240 signed authorization cards from Aviation Safeguards employees reaffirming and reauthorizing the Union as their designated representative. Notably, 139 of the employees that allegedly signed either the Pro-Union Petition or an authorization card had previously signed the Union Removal Petition and thereby revoked their prior anti-union support.

         Aviation Safeguards did not stop remitting Union dues until February 2012. It is unclear, however, when Aviation Safeguards stopped collecting Union dues. Aviation Safeguards argues that it stopped collecting Union dues in December 2011, and that Union dues collected in December were merely remitted the following month, in January 2012. But, if Union dues were remitted into February, as the Union states, then Union dues were likely still being collected in January.

         The Mediation Board finished its nearly six-month pre-docketing investigation and docketed the case on June 26, 2012. Two days later, Aviation Safeguards informed the ...


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