Marlene Herrera v. Command Security Corp. , 837 F.3d 979 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARLENE HERRERA; EDWARD No. 14-55525
LOPEZ; SERVICE EMPLOYEES
INTERNATIONAL UNION, UNITED D.C. No.
HEALTHCARE WORKERS-WEST, 2:12-cv-10968-
United Service Workers West; SVW-RZ
ALEJANDRO BARRIOS,
Plaintiffs-Appellants,
OPINION
v.
COMMAND SECURITY CORPORATION,
DBA Aviation Safeguards, a New
York Corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted March 11, 2016
Pasadena, California
Filed September 14, 2016
Before: Harry Pregerson, Richard A. Paez,
and Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge Pregerson
2 HERRERA V. COMMAND SECURITY
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
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
HERRERA V. COMMAND SECURITY 3
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.
COUNSEL
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.
4 HERRERA V. COMMAND SECURITY
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
HERRERA V. COMMAND SECURITY 5
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
6 HERRERA V. COMMAND SECURITY
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
1
In September 2011, Aviation Safeguards executives calculated that
they could save around $800,000 in 2012 if they got rid of the Union.
2
At the time of Aviation Safeguards’s removal efforts, there were
452 employees at LAX who were covered by the collective bargaining
agreement. To decertify or remove the Union, Aviation Safeguards
required signatures from a majority of the employees, at least 227.
3
As the Union points out, these 39 employees who signed the Union
Removal Petition and then later signed the Pro-Union Petition should be
considered pro-union. By signing the Pro-Union Petition, they
effectively revoked their previous signatures in support of the Union
Removal Petition.
HERRERA V. COMMAND SECURITY 7
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
4
Kathleen McManus, Aviation Safeguards Office Manager, sent an
email to Aviation Safeguards’s management stating in detail the
schedule and strategy for its upcoming anti-union meetings. The email
cautions Aviation Safeguards’s management: “[P]lease do not tell [the
employees] the reason for the meeting. Just simply say it is a
management meeting.”
5
The Union also notes that the Union Removal Petition included
signatures from several managers, whom the Union would not represent.
8 HERRERA V. COMMAND SECURITY
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
6
Aviation Safeguards disputes the validity of the public count
because it claims that any Pro-Union Petition signatures were never
validated.
HERRERA V. COMMAND SECURITY 9
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
Mediation Board that it would not participate in mediation.
The Union filed suit against Aviation Safeguards in
Federal District Court on July 31, 2012. The Union claimed
coercion and interference with Union representation under
the RLA, 45 U.S.C. § 152, Third and Fourth; failure to
mediate under the RLA, 45 U.S.C. § 152, First; and status
quo violations under the RLA, 45 U.S.C. § 156.
Aviation Safeguards moved for summary judgment,
arguing that the Union’s claims were barred by the RLA’s
statute of limitations and that the allegations constituted a
representation dispute under the RLA, 45 U.S.C. § 152,
Ninth, within the exclusive jurisdiction of the Mediation
Board. 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. The Union appeals the grant of
10 HERRERA V. COMMAND SECURITY
summary judgment and the denial of its cross-motion for
summary judgment. 7
STANDARD OF REVIEW
We review de novo the District Court’s grant of
summary judgment. Johnson v. Poway Unified Sch. Dist.,
658 F.3d 954, 960 (9th Cir. 2011). Additionally, when the
facts are not in dispute, statute of limitations accrual
decisions are reviewed de novo. Galindo v. Stoody Co.,
793 F.2d 1502, 1508 (9th Cir. 1986). Where, as here, the
parties have both filed summary judgment motions, this
court “consider[s] each party’s evidence to evaluate whether
summary judgment was appropriate.” Johnson, 658 F.3d at
960.
Where the record has been sufficiently developed
through the parties’ cross-motions and briefs on appeal, we
may direct the District Court to grant an appellant’s cross-
motion for summary judgment. Keystone Land & Dev. Co.
7
There is a related case between the parties to this appeal, California
Service Employees Health & Welfare Trust Fund v. Command Security
Corp., 12-cv-10967 (C.D. Cal. July 31, 2014), which was recently
decided in the District Court by the same judge and has been appealed to
this court. That case was brought by the health care trust fund that
received payments from Aviation Safeguards as part of the Union’s
collective bargaining agreement. Id. The District Court’s ruling in the
Welfare Trust Fund case relied on its decision presently before this court.
Id. at 5–7. In the case now before us, the District Court found that
Aviation Safeguards had no obligation to deal with an uncertified union,
and that it lawfully withdrew recognition. Consequently, Aviation
Safeguards was not obligated to continue making healthcare benefit
payments to the Welfare Trust. Id. Because we reverse the District Court
with respect to its ruling that Aviation Safeguards lawfully withdrew the
Union’s recognition, our decision may have some bearing on the appeal
of the Welfare Trust Fund case.
HERRERA V. COMMAND SECURITY 11
v. Xerox Corp., 353 F.3d 1070, 1076–77, 1076 n.7 (9th Cir.
2003).
DISCUSSION
I. The District Court Erred in Granting Aviation
Safeguards Summary Judgment on the Union’s
§ 152, Third and Fourth Claim for Unlawful
Interference and Coercion
The Union alleges that Aviation Safeguards solicited and
coerced Union Removal Petition signatures, bypassed the
Union to solicit employees directly, and refused to recognize
and negotiate with the Union, and thus violated the RLA’s
unlawful interference and coercion provisions. § 152, Third
and Fourth. Aviation Safeguards argues, and the District
Court held, that the Union’s § 152, Third and Fourth claim
is time-barred under the RLA’s six-month limitation period.
We disagree. We hold that the Union’s § 152, Third and
Fourth claim is not time-barred. Further, we hold that
Aviation Safeguards violated § 152, Third and Fourth.
Accordingly, we remand the Union’s § 152, Third and
Fourth claim and direct the District Court to grant summary
judgment in favor of the Union on this claim.
A. The Union’s § 152, Third and Fourth Claim for
Unlawful Interference and Coercion Is Not Time-
Barred
Claims under the RLA must be brought within six
months after their accrual date. Int’l Ass’n of Machinists &
Aerospace Workers v. Aloha Airlines, Inc., 790 F.2d 727,
735 (9th Cir. 1986) (articulating a six-month statute of
limitations period for RLA claims). However, “[i]t is
hornbook law that limitations periods are customarily
12 HERRERA V. COMMAND SECURITY
subject to equitable tolling, unless tolling would be
inconsistent with the text of the relevant statute.” Young v.
United States, 535 U.S. 43, 49 (2002) (internal quotation
marks and citations omitted).
Equitable tolling may apply where it effectuates
Congress’s intent in enacting the RLA. Burnett v. N.Y. Cent.
R.R. Co., 380 U.S. 424, 427 (1965); Mt. Hood Stages, Inc. v.
Greyhound Corp., 616 F.2d 394, 396 (9th Cir. 1980). “[T]o
determine congressional intent, we must examine the
purposes and policies underlying the limitation provision,
the Act itself, and the remedial scheme developed for the
enforcement of the rights given by the Act.” Burnett,
380 U.S. at 427.
Statutes of limitations are meant to ensure fairness to
defendants by giving them timely notice of the claims
against them. Mt. Hood, 616 F.2d at 400. However, this
policy “is frequently outweighed . . . where the interests of
justice require vindication of the plaintiff’s rights.” Burnett,
380 U.S. at 428. Equitable tolling may pause the running of
the statute of limitations where a plaintiff has diligently
pursued her claim but circumstances out of the plaintiff’s
control prevented her from timely filing. Lozano v. Montoya
Alvarez, –– U.S. ––, 134 S. Ct. 1224, 1231–32 (2014); Wong
v. Beebe, 732 F.3d 1030, 1052–53 (9th Cir. 2013) (en banc),
aff’d and remanded on other grounds sub nom. United States
v. Wong, 135 S. Ct. 1625 (2015). 8
8
In Aloha Airlines, Inc., we commented that “the application of the
tolling doctrine to future actions of this type will be extremely limited.”
790 F.2d at 738 n.4. The facts of this case fairly place it among the class
of cases for which such tolling is appropriate.
HERRERA V. COMMAND SECURITY 13
Here, Aviation Safeguards likely had notice of the
Union’s disputes as early as September 2011, when the
Union submitted a Pro-Union Petition notifying Aviation
Safeguards that the Union did not agree with its attempts to
remove the Union. 9 Additionally, the Union diligently
pursued its claims by resorting to RLA mediation
procedures. After Aviation Safeguards announced on
December 30, 2011, that it would no longer recognize the
Union, the Union promptly applied to the Mediation Board
for mediation services on January 3, 2012, the next business
day.
Further, the Union’s delay in filing its federal claims
reasonably resulted from its reliance on the remedies set
forth in the RLA. The Mediation Board’s pre-docketing
investigation lasted nearly six months. At no point during
that time did Aviation Safeguards indicate a refusal to
mediate. Aviation Safeguards waited until after the
Mediation Board finished its nearly six-month pre-docketing
investigation before informing the Union that it would not
participate in mediation. 10 The Union should not be
punished for the Mediation Board’s or Aviation
Safeguards’s delays.
9
Aviation Safeguards may have had notice even earlier in 2011,
when the Union attempted to discuss Aviation Safeguards’s concerns,
but Aviation Safeguards refused.
10
Aviation Safeguards notified the Union of its refusal to mediate
on Thursday, June 28, 2012. Assuming Aviation Safeguards’s asserted
accrual date of December 30, 2011, Aviation Safeguards’s notice left the
Union with just one remaining business day (a Friday) to file within the
six-month limitations window.
14 HERRERA V. COMMAND SECURITY
Congress’s purpose in enacting the RLA was “to
encourage collective bargaining . . . to prevent, if possible,
wasteful strikes and interruptions of interstate commerce.”
Detroit & Toledo Shore Line R.R. Co. v. United Transp.
Union, 396 U.S. 142, 148 (1969). To accomplish this,
Congress created an “elaborate” remedial scheme under the
RLA that requires the parties to make “every reasonable
effort” to settle disputes. 45 U.S.C. § 152, First; Detroit &
Toledo Shore Line R.R. Co., 396 U.S. at 148–49. 11
“[E]xhaustion of the [RLA’s] remedies [is] an almost
interminable process,” with procedures that are “purposely
long and drawn out” in the hopes that parties will eventually
reach an agreement. Detroit & Toledo Shore Line R.R. Co.,
396 U.S. at 149 (internal quotation marks omitted).
This court has recognized that equitable tolling may
effectuate the policies underlying the RLA. See Albano v.
Shea Homes Ltd. P’ship, 634 F.3d 524, 538 (9th Cir. 2011)
11
In Conley v. International Brotherhood of Electrical Workers,
Local 639, 810 F.2d 913, 915 (9th Cir. 1987), we held that “[e]quitable
tolling is most appropriate when the plaintiff is required to avail himself
of an alternate course of action as a precondition to filing suit.” Thus,
where an “NLRB action was merely optional,” allowing tolling “would
frustrate the national policy of prompt resolution of labor disputes.” Id.
at 916. While it is debatable whether the Union was required to bring its
dispute before the Mediation Board, the purpose of the RLA is to avoid
“any interruption to commerce.” Consol. Rail Corp. v. Ry. Labor Execs.’
Ass’n, 491 U.S. 299, 310 (1989) (internal quotation marks omitted). The
RLA’s purpose stands in contrast to the NLRB’s purpose of securing a
“prompt resolution of labor disputes.” Conley, 810 F.2d at 916. Because
mediation, rather than litigation, prevents “interruption to commerce,”
the RLA’s purpose arguably supports tolling while parties utilize the
Mediation Board to seek resolution of their claims. Further, filing a claim
with the NLRB is itself an adversarial action, whereas mediation is a tool
generally used to prevent litigation. Thus, requiring the Union to file suit
while mediation is pending is nonsensical.
HERRERA V. COMMAND SECURITY 15
(citing Order of R.R. Telegraphers v. Ry. Express Agency,
Inc., 321 U.S. 342 (1944)). Tolling the statute of limitations
promotes the use of the RLA’s “virtually endless” mediation
mechanisms, thereby preventing interruptions in commerce.
See Consol. Rail Corp. v. Ry. Labor Execs.’ Ass’n, 491 U.S.
299, 311 (1989) (internal quotation marks omitted).
Aviation Safeguards had notice of the Union’s claims,
and the Union acted reasonably when it attempted to use the
extensive remedies afforded by the RLA. Under these
circumstances, the Union’s claim should not be time-barred.
We therefore conclude that the District Court erred in failing
to toll the statute of limitations for the Union’s unlawful
interference and coercion claim.
B. Aviation Safeguards Violated § 152, Third and
Fourth for Unlawful Interference and Coercion
Section 152, Third of the RLA prevents an employer
from interfering with, influencing, or coercing employees’
designation of a representative. § 152, Third. Along the same
lines, § 152, Fourth prevents an employer from interfering
with a union’s operations and specifically forbids influence
or coercion as part of “an effort to induce [employees] to join
or remain or not to join or remain members of any labor
organization.” § 152, Fourth; see also Tex. & New Orleans
R.R. Co. v. Bhd. of Ry. & S.S. Clerks, 281 U.S. 548, 568
(1930) (describing unlawful influence over employees’ self-
organization and designation of representatives).
The Union alleges that Aviation Safeguards violated
these two provisions when it solicited Union Removal
Petition signatures, bypassed the Union to solicit employees
directly, and refused to recognize and negotiate with the
16 HERRERA V. COMMAND SECURITY
Union. 12 Concluding that the Union’s claims were time-
barred, the District Court did not address the merits of this
claim. Likewise, Aviation Safeguards asserts only that the
Union’s interference and coercion claims are time-barred.
Federal courts have prudently drawn analogies to the
National Labor Relations Act (“NLRA”), 29 U.S.C. §§ 151–
169, in many RLA cases. See, e.g., Bhd. of R.R. Trainmen v.
Jacksonville Terminal Co., 394 U.S. 369, 377, 383 (1969).
This court has looked to the NLRA when analyzing an
unlawful coercion claim under the RLA. See Barthelemy v.
Air Lines Pilots Ass’n, 897 F.2d 999, 1015–16 (9th Cir.
1990) (stating that NLRA § 158(a)(2) provides an “apt
analog[y]” to RLA § 152, Fourth, and that, like the RLA, the
relevant section of the NLRA “is intended to secure for
employees the right of free choice”). 13
Although this court has not analogized explicitly to
NLRA § 158(a)(1) in analyzing interference or coercion
under RLA § 152, Third and Fourth, we find that an apt
analogy exists. Section 158(a)(1) of the NLRA states that it
is unlawful for an employer “to interfere with, restrain, or
coerce employees in the exercise of the rights guaranteed in
section 157 of this title”—namely, the right to “self-
organization” and to “bargain collectively through
12
The Union’s direct dealing claim alleges the same behavior as its
solicitation claim, and to the extent that such dealing was coercive, we
address it in our discussion of Aviation Safeguards’s solicitation of the
Union Removal Petition. In addition, Aviation Safeguards’s refusal to
recognize the Union was a result of the unlawful solicitation of Union
Removal Petition signatures.
13
NLRA § 158(a)(2) states that it is an unfair employer practice “to
dominate or interfere with the formation or administration of any labor
organization or contribute financial or other support to it.”
HERRERA V. COMMAND SECURITY 17
representatives of their own choosing.” 29 U.S.C. §§ 157,
158(a)(1). As articulated in Barthelemy, the NLRA guides
this court’s protection of employees’ rights of free choice in
designating their representatives. 897 F.2d at 1016.
Analogizing to NLRA § 158(a)(1), we conclude that
Aviation Safeguards unlawfully interfered with the Union’s
activities and coerced employees to remove the Union. As
this court has stated, “[a]lthough it is not an unfair labor
practice for an employer to inform employees that they have
a right to revoke their union support, it is an unfair labor
practice to actively solicit revocations in an otherwise
coercive atmosphere. It is also an unfair labor practice for an
employer to directly aid employees in revoking their union
authorization.” L’Eggs Prods., Inc. v. NLRB, 619 F.2d 1337,
1346 (9th Cir. 1980) (internal citation omitted) (discussing
NLRA interference under § 158(a)(1)); accord Virgin Atl.
Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245, 1252
(2d Cir. 1992) (“[T]he Union asserts that Virgin discharged
employees who were engaged in a strike designed to enforce
the [Mediation Board] certification and solicited employees
to sign a prepared statement repudiating the Union. These
actions, if proven, constitute interference by the carrier with
the employees’ selection of a representative.”).
Aviation Safeguards did not just “directly aid employees
in revoking their union authorization,” it initiated and
orchestrated the entire removal effort. See L’Eggs, 619 F.2d
at 1346. Aviation Safeguards actively solicited employees’
signatures for a Union Removal Petition that it drafted. It
held employee meetings with representatives from Cruz &
Associates, the union avoidance firm, in which its
representatives told employees that wages would increase if
they got rid of the Union. Moreover, it held these anti-union
meetings during normal working hours, hid the true purpose
18 HERRERA V. COMMAND SECURITY
of the meetings, and made attendance at the meetings appear
mandatory. When it was still short of Union Removal
Petition signatures in December 2011, Aviation Safeguards
actively targeted its new hires for signatures as soon as their
employment became official.
Aviation Safeguards therefore unlawfully coerced and
interfered with its employees’ rights to designate their
representative, violating § 152, Third and Fourth. We
remand this claim, directing the District Court to grant
summary judgment in favor of the Union on this claim, and
to conduct further proceedings to determine the issue of
damages and other relief.
II. The District Court Had Jurisdiction Over the
Union’s Major Dispute Claim for Status Quo
Violations
The Union alleges that Aviation Safeguards unilaterally
altered the collective bargaining agreement, and thus
violated the RLA’s status quo provisions. Aviation
Safeguards argues, and the District Court held, that the court
lacked jurisdiction over this claim because it constitutes a
representation dispute. We agree with the Union. We hold
that the dispute is a major dispute, relating to employer
interference and status quo violations. Because the District
Court had jurisdiction over this major dispute, we remand
the claim.
A. The District Court Erred in Finding That the
Union’s Claim Constitutes a Representation
Dispute
The District Court held that the Union’s claim constitutes
a representation dispute under § 152, Ninth. Representation
HERRERA V. COMMAND SECURITY 19
disputes are within the exclusive jurisdiction of the
Mediation Board. The District Court therefore dismissed the
claim for lack of jurisdiction.
We have described major, minor, and representation
disputes as follows:
Major disputes comprise a class of disputes
concerning rates of pay, rules or working
conditions, and relate to the formation of
collective bargaining agreements or efforts to
secure them. The second class of disputes,
known as minor disputes, grow out of
grievances. These involve controversies over
the meaning of an existing collective
bargaining agreement in a particular fact
situation. Therefore, under Congress’s
scheme, major disputes seek to create
contractual rights, minor disputes to enforce
them. Finally, representation disputes
involve defining the bargaining unit and
determining the employee representative for
collective bargaining.
Aircraft Serv. Int’l, Inc. v. Int’l Bhd. of Teamsters, 779 F.3d
1069, 1081 (9th Cir. 2015) (en banc) (internal citations,
quotation marks, and alterations omitted). As the District
Court properly noted, a major dispute includes “attempts by
. . . management to impose new obligations or create new
rights.” Ass’n of Flight Attendants v. Mesa Air Grp., Inc.,
567 F.3d 1043, 1047 (9th Cir. 2009). When an employer
seeks to change a term in a collective bargaining agreement,
a major dispute arises. See Consol. Rail Corp., 491 U.S. at
302; Air Line Pilots Ass’n, Int’l v. E. Air Lines, Inc., 869 F.2d
1518, 1523 (D.C. Cir. 1989) (“[I]f a party announces an
20 HERRERA V. COMMAND SECURITY
intent to repudiate the [collective bargaining] agreement by
adopting a unilateral change in the terms, it triggers a major
dispute.”).
A representation dispute, on the other hand, arises when
there is bona fide confusion about who is the employees’
representative. See, e.g., Int’l Bhd. of Teamsters, Airlines
Div. v. Allegiant Air, LLC, 788 F.3d 1080, 1087–89 (9th Cir.
2015) (discussing representation disputes).
While the boundaries are not always clear-cut, this court
has maintained that a major dispute exists when an employer
acts to undermine a union’s representative status. Air Line
Pilots Ass’n, Int’l v. Transamerica Airlines, Inc., 817 F.2d
510, 515 (9th Cir. 1987). In Transamerica, the union alleged
that the employer created a subsidiary company, to which it
transferred the union employees’ existing business in an
effort to take work from the union. Id. We reversed the
District Court’s finding that a representation dispute existed
and instead held that the union alleged a major dispute within
the federal court’s jurisdiction. Id. Based on the employer’s
actions, we also held that the union stated a claim under RLA
§ 152, Third and Fourth and under the RLA’s status quo
provision. Id. at 516.
Aviation Safeguards claims that the Union lost majority
support, and that this change in support justified its removal
of the Union. However, Aviation Safeguards constructed the
dispute with the Union by creating the Union Removal
Petition and unlawfully soliciting Aviation Safeguards’s
employees to sign it. Aviation Safeguards cannot
manufacture a representation dispute. Moreover, labor
violations cannot justify revoking a Union’s representative
status. See, e.g., Frankl v. HTH Corp., 650 F.3d 1334, 1361
(9th Cir. 2011) (“[E]mployers may not withdraw recognition
HERRERA V. COMMAND SECURITY 21
in a context of serious unremedied unfair labor practices
tending to cause employees to become disaffected from the
union.”) (quoting Levitz Furniture Co. of the Pac., Inc.,
333 N.L.R.B. 717, 717 n.1 (2001)) (applying similar
principles in the NLRA context); Transamerica, 817 F.2d at
515; In re Virgin Atl. Airways Emps. Ass’n, 24 N.M.B. 575,
621 (1997) (“By . . . compel[ling] attendance at a meeting at
which authorization cards were collected, the carrier . . .
interfered, influenced or coerced employee freedom of
choice . . . . Cards collected under such circumstances
cannot be regarded as a true and free expression of the
employees’ desires with regard to representation.”).
Aviation Safeguards unlawfully interfered with the
Union’s representation, in violation of § 152, Third and
Fourth. Purportedly believing that it acted lawfully, Aviation
Safeguards eliminated the wage and health care terms of the
Union’s collective bargaining agreement. Because the
District Court did not consider the Union’s unlawful
interference and coercion claim, finding that it was time-
barred, it did not consider the unlawful behavior at the heart
of Aviation Safeguards’s claimed representation dispute.
The District Court erred when it held that the Union’s claim
constitutes a representation dispute and dismissed the claim
for lack of jurisdiction. 14
14
Further, we disagree with the District Court’s contention that
Aviation Safeguards was not obligated to apply to the Mediation Board
to remove the Union as the designated representative. As we explained
in Allegiant Air, a union may become a legally designated representative
through either Mediation Board certification or voluntary recognition.
788 F.3d at 1090–91. An employer has a duty to “treat with,” i.e.,
negotiate with, a certified union, and that same duty exists once an
employer decides to voluntarily recognize a union; certification and
22 HERRERA V. COMMAND SECURITY
B. The Union’s Claim Constitutes a Status Quo
Violation, Which Is a Major Dispute
The RLA imposes upon employees and carriers an
obligation to maintain existing working conditions until the
RLA’s internal mechanisms for dispute resolution are
completed. See, e.g., Detroit & Toledo Shore Line R.R. Co.,
396 U.S. at 150–51 (describing “three status quo provisions
in the Act, each covering a different stage of the major
dispute settlement procedures”). This obligation is imposed
through several interlocking provisions, see 45 U.S.C.
§§ 152, Seventh; 155; 156, that “must be read in conjunction
with the implicit status quo requirement” of § 152, First,
which imposes a duty on both parties to ‘“exert every
reasonable effort’ to settle disputes without interruption to
interstate commerce.” Detroit & Toledo Shore Line R.R. Co.,
396 U.S. at 151. “The obligation of both parties during a
period in which any of these status quo provisions is properly
invoked is to preserve and maintain unchanged those actual,
objective working conditions and practices, broadly
conceived, which were in effect prior to the time the pending
dispute arose and which are involved in or related to that
dispute.” Id. at 152–53.
voluntary recognition are two avenues to become a legally designated
representative. Id. at 1089–92. Aviation Safeguards therefore had the
same duty to the Union, as a voluntarily recognized representative, as it
would have had to a certified union, to apply to the Mediation Board to
seek union removal. See also, e.g., In re Emps. of the Pan Am. Airways,
Inc., 1 N.M.B. 381, 386 (1945) (“[T]he voluntary representation
previously established between the Carrier and the various organizations
and associations representing its employees should be considered as
effective until changed in accordance with the provision of Section 2,
Ninth, of the Act.”).
HERRERA V. COMMAND SECURITY 23
RLA § 156 provides that employers and representatives
must give at least thirty-days’ written notice of any intended
changes to a collective bargaining agreement. 45 U.S.C.
§ 156. This obligation arises “from the first notice of a
proposed change in agreements up to and through any
proceedings before the National Mediation Board.” Detroit
& Toledo Shore Line R.R. Co., 396 U.S. at 150. In particular,
§ 156 requires that,
In every case where such notice of intended
change has been given, or conferences are
being held with reference thereto, or the
services of the Mediation Board have been
requested by either party, . . . rates of pay,
rules, or working conditions shall not be
altered by the carrier until the controversy has
been finally acted upon, as required by
section 155 of this title, by the Mediation
Board . . . .
The Union properly sought resolution through the
Mediation Board when Aviation Safeguards threatened to
remove the Union. After the Union requested the Mediation
Board’s services, and before the Mediation Board had even
docketed the case, and relying on its unlawfully obtained
Union Removal Petition, Aviation Safeguards altered the
status quo when it ceased to recognize the Union and thereby
altered wages, health insurance benefits, and other working
conditions. Such a change in the working conditions violated
RLA § 156’s status quo provisions, creating a major dispute.
45 U.S.C. § 156.
The Union thus stated a major dispute claim under the
RLA’s status quo provisions set forth in §§ 152, Seventh;
155; and 156. We remand this major dispute claim for the
24 HERRERA V. COMMAND SECURITY
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 this
claim. 15
III. Aviation Safeguards Violated § 152, First When
It Refused to Mediate with the Union 16
Under the RLA, employers and unions must “exert every
reasonable effort to make and maintain agreements” and “to
settle all disputes” to avoid strikes or other disruptions to
commerce. 45 U.S.C. § 152, First. As we have determined,
“[t]he duty to ‘exert every reasonable effort’ to reach an
agreement is ‘a legal obligation, enforceable by whatever
appropriate means might be developed on a case-by-case
basis.’” Ass’n of Flight Attendants, AFL-CIO v. Horizon Air
Indus., Inc., 976 F.2d 541, 543 (9th Cir. 1992) (quoting Chi.
& N. W. Ry. Co. v. United Transp. Union, 402 U.S. 570, 577
(1971)); see also Am. Train Dispatchers Dep’t v. Fort Smith
R.R. Co., 121 F.3d 267, 270–71 (7th Cir. 1997) (affirming
15
The Union alleges that Aviation Safeguards did not stop remitting
Union dues until February 2012. However, it is unclear when Union dues
ceased being collected. This disputed fact bears on when the Union’s
§ 156 status quo violation claim began to accrue. In light of its
jurisdictional ruling on this claim, the District Court had no reason to
address the statute of limitations and did not make a factual finding as to
when this claim began to accrue. This is an issue of fact that should be
decided in the first instance by the District Court on remand.
16
The District Court did not address the Union’s § 152, First claim,
likely because it found a representation dispute, which would have
eliminated the availability of mediation. As the Union correctly argued,
this claim is not barred by the six-month limitations period starting on
December 30, 2011, because the claim necessarily accrued when
Aviation Safeguards refused to participate in mediation.
HERRERA V. COMMAND SECURITY 25
the District Court’s grant of a permanent injunction, and
holding that an employer violated § 152, First by refusing to
attend Mediation Board negotiation sessions).
In Horizon Air, we affirmed a finding that an employer
violated its § 152, First duty by engaging in “surface
bargaining” when it offered terms less favorable than the
status quo. 976 F.2d at 547. We considered the substance of
negotiations “to determine whether they were of such a
nature as to indicate an intention not to reach an agreement
at all” and were merely “go[ing] through the motions with a
desire not to reach an agreement.” Id. at 544–45 (internal
quotation marks omitted).
This court has held that superficial attempts at
negotiations violate the duty to “exert every reasonable
effort.” Id. at 547. Flatly refusing to participate in mediation
surely violates this duty as well, as it indicates absolutely no
effort, let alone every reasonable effort, to make or maintain
an agreement. We therefore remand and direct the District
Court to grant summary judgment in favor of the Union on
this claim, and to conduct further proceedings to determine
the issue of damages and other relief.
CONCLUSION
To summarize: we reverse the District Court’s grant of
summary judgment in favor of Aviation Safeguards.
1. We hold that equitable tolling principles apply to the
Union’s unlawful interference and coercion claim against
Aviation Safeguards. Accordingly, we remand and direct the
District Court to grant the Union’s cross-motion for
summary judgment under RLA § 152, Third and Fourth, and
to conduct further proceedings to determine the issue of
damages and other relief.
26 HERRERA V. COMMAND SECURITY
2. We hold that the District Court has subject matter
jurisdiction over the Union’s status quo claim under RLA
§§ 152, Seventh; 155; and 156. We emphasize that this claim
does not constitute a representation dispute under RLA
§ 152, Ninth. We remand to the District Court for the limited
purpose of determining whether this claim is timely and, if
the claim is timely, we direct the District Court to grant the
Union’s cross-motion for summary judgment under RLA
§§ 152, Seventh; 155; and 156.
3. We hold that Aviation Safeguards unlawfully refused
to mediate. We remand and direct the District Court to grant
the Union’s cross-motion for summary judgment under RLA
§ 152, First, and to conduct further proceedings to determine
the issue of damages and other relief.
Costs are awarded to Plaintiffs-Appellants.
REVERSED and REMANDED.