Solis v. National Emergency Medical Services Association

Filing 66

ORDER Re: 56 Motion to Vacate Order for Mootness signed by Chief Judge Anthony W. Ishii on 3/16/2012. (Figueroa, O)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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HILDA L. SOLIS, Secretary of Labor,
United States Department of Labor,

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Plaintiff,
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v.
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NATIONAL EMERGENCY MEDICAL )
SERVICES ASSOCIATION,
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Defendant.
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____________________________________ )

CASE NO. 1:11-CV-0529 AWI GSA
ORDER RE: MOTION TO VACATE
ORDER FOR MOOTNESS

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I. History
Plaintiff Department of Labor (“DOL”) is representing James Gambone (“Gambone”)

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who was seeking to become the president of the board of directors of Defendant National

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Emergency Medical Services Association (“NEMSA”), a union of emergency medical

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technicians (“EMT”) headquartered in Modesto, California. Gambone was an EMT working for

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third party American Medical Response (“AMR”). In 2006, NEMSA hired Gambone part time

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to organize his co-workers. After NEMSA was certified to represent AMR’s workers, Gambone

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worked simultaneously for NEMSA and AMR until August 29, 2007 when he was fired by

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AMR. NEMSA, on behalf of Gambone, challenged the termination with the National Labor

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Relations Board (“NLRB”), alleging the termination was in retaliation for protected union

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activity. In the interim, Gambone worked for NEMSA full time. While NEMSA’s rules state

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that an individual had to actively work as an EMT to be a member of NEMSA, the rules also
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provide for continued membership of former EMTs who are challenging their termination.

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NEMSA scheduled elections to be held during the summer of 2010 for the positions of

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president and secretary of the board of directors of NEMSA. The term of office is three years.

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Gambone, seeking to be put on the ballot, submitted paperwork nominating himself as president.

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NEMSA refused to include Gambone on the ballot arguing that Gambone did not meet the

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eligibility requirements. Gambone then launched a write-in campaign. The ballots were sent out

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with directions that they had to be received by July 9, 2010. On July 12, 2010, the ballots were

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counted. Also running for president were Larry Lucas (“Lucas”) and Torren Colcord

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(“Colcord”), the incumbent president. NEMSA did not count the ballots in which members

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wrote in Gambone’s name and declared Lucas the winner, asserting that NEMSA’s bylaws do

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not provide for the acceptance of write-in votes. Gambone wrote NEMSA on July 19, 2010 to

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contest the results. NEMSA rejected Gambone’s challenge. NEMSA recounted the ballots on

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July 30, 2010 and again declared Lucas the winner.

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Meanwhile, Gambone, as an employee of NEMSA, organized a new union of NEMSA

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employees, the NEMSA Representatives Employee Association (“REA”). While NEMSA is a

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union itself, NEMSA employees (distinct from EMTs who are members of the NEMSA union

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and work for third parties like AMR) formed REA. Gambone became interim president of REA

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and filed a petition with the NLRB seeking certification on May 3, 2010. NEMSA offerred to

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recognize the REA by letter dated May 5, 2010. NEMSA then fired Gambone on May 10, 2010.

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On August 2, 2010, Gambone sought arbitration of the election dispute in accord with

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NEMSA bylaws. On August 24 and 15, 2010, Gambone and NEMSA took part in an arbitration

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hearing which took place at NEMSA’s headquarters. NEMSA objected to the arbitrability of the

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dispute, arguing that Gambone was not a NEMSA union member covered by the bylaws. Upon

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the arbitrator’s announcement of a preliminary conclusion that the dispute was arbitrable,

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NEMSA withdrew from the proceedings and ordered the arbitrator and Gambone to vacate the

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premises. The arbitration proceeded at another location without NEMSA’s participation. On

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September 2, 2010, the arbitrator found in favor of Gambone and ordered his installation as

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president of NEMSA. Thereafter, Gambone resigned as interim president of REA. Sometime
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after the arbitration award, Gambone and allied NEMSA union members took control of

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NEMSA headquarters for a few days before Colcord had him evicted from the building. Lucas

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resigned as president of NEMSA on December 8, 2010. NEMSA’s board of directors appointed

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Eric Stephens, the then vice president, as president.

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Meanwhile, Gambone filed a complaint with DOL on September 27, 2010. DOL

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investigated the matter. DOL’s tabulation of the presidential election ballots concluded that

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Gambone received 205 votes compared with Lucas’s 128 votes and Colcord’s 111 votes. At an

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unspecified date, NEMSA filed suit in Stanislaus County Superior Court against Gambone and

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the other individuals who took over the headquarters, alleging (among other claims) theft,

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trespass, and breach of fiduciary duties. The state court case was stayed on November 9, 2010

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pending DOL action.

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DOL brought this present suit on March 28, 2011, under Title IV of the Labor-

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Management Reporting and Disclosure Act (“LMRDA”), alleging NEMSA violated union

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election procedures set out in 29 U.S.C. §481. DOL sought to have Gambone installed as

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NEMSA president or, in the alternative, for new elections under DOL supervision. Doc. 23, Part

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2, First Amended Complaint. DOL also filed a motion for preliminary injunction seeking to have

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Gambone installed as president pending resolution of the case. Doc. 4. On June 10, 2011, this

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court denied the motion, ruling that Title IV did not allow for installation of Gambone as interim

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relief. Doc. 35. Subsequent to that ruling, on June 24, 2011, the NLRB sent Gambone a letter

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declining to file a complaint against AMR. Doc. 47, Ex. 1. The NLRB decision ends Gambone’s

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attempts to be reinstated as an EMT with AMR.

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DOL then sought and was granted leave to amend. The second amended complaint

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withdrew the DOL’s request to have Gambone installed as NEMSA president; the relief

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requested is for new elections conducted under DOL supervision. Doc. 54. DOL now moves to

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have the June 10, 2011 order denying preliminary injunction vacated for mootness. Doc. 56.

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NEMSA opposes the motion. Doc. 62. The matter was taken under submission without oral

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argument.

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II. Legal Standards

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“[A] case is moot when events prevent the appellate court from granting any effective

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relief even if the dispute is decided in favor of the appellant.” Garcia v. Lawn, 805 F.2d 1400,

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1402 (9th Cir. 1986), citations omitted. “The established practice of the Court in dealing with a

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civil case from a court in the federal system which has become moot while on its way here or

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pending our decision on the merits is to reverse or vacate the judgment below and remand with a

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direction to dismiss. That was said in Duke Power Co. v. Greenwood County, 299 U.S. 259, 267

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[(1936)], to be ‘the duty of the appellate court.’ That procedure clears the path for future

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relitigation of the issues between the parties and eliminates a judgment, review of which was

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prevented through happenstance. When that procedure is followed, the rights of all parties are

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preserved; none is prejudiced by a decision which in the statutory scheme was only preliminary.”

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United States v. Munsingwear, Inc., 340 U.S. 36, 39-40 (1950). This conclusion, vacation of

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rulings mooted by circumstances unattributable to any of the parties, was more recently

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reaffirmed by the U.S. Supreme Court. United States Bancorp Mortg. Co. v. Bonner Mall P’ship,

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513 U.S. 18, 25 (1994) (“A party who seeks review of the merits of an adverse ruling, but is

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frustrated by the vagaries of circumstance, ought not in fairness be forced to acquiesce in the

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judgment”). When mootness happens by happenstance, vacation should be automatic. Koch v.

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Schriro, 399 F.3d 1099, 1101 (9th Cir. 2005), citing Dilley v. Gunn, 64 F.3d 1365, 1372 (9th Cir.

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1995). An order granting or denying a preliminary injunction is subject to this analysis. See

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Forest Serv. Emples. v. United States Forest Serv., 408 F. Supp. 2d 916, 920 (N.D. Cal. 2006).

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III. Discussion

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Gambone filed a charge with the NLRB alleging that AMR fired him in retaliation for his

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union activity. The NLRB referred the matter to arbitration; the arbitrator ruled that while AMR

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did retaliate, Gambone’s termination was unrelated. On June 24, 2011, the NLRB wrote

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Gambone a final letter stating the NLRB would not file a complaint against AMR. Doc. 47, June

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24, 2011 Letter, (4 of 9). Under NEMSA rules, Gambone remained a member of NEMSA even

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though he was not an active EMT while challenging his termination by AMR. DOL argues that
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with the NLRB ruling, Gambone is no longer a member of NEMSA and is thus no longer eligible

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to be installed as president. DOL contends that the NLRB ruling has mooted its request to have

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Gambone installed as president and its motion for preliminary injunction. As DOL can no longer

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appeal the adverse ruling denying the motion, it asks to have it vacated for mootness. The DOL

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and NLRB function independently; there is no indication the DOL had any hand in the NLRB

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proceedings. The NLRB ruling must be considered happenstance.

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NEMSA argues that the NLRB ruling does not moot the request to install Gambone since

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the ruling is appealable to the federal courts: “Any person aggrieved by a final order of the Board

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granting or denying in whole or in part the relief sought may obtain a review of such order in any

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court of appeals of the United States in the circuit wherein the unfair labor practice in question

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was alleged to have been engaged in.” 29 U.S.C. §160(f). DOL points out that provision only

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applies in cases where a complaint has been filed: “Whenever it is charged that any person has

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engaged in or is engaging in any such unfair labor practice, the Board, or any agent or agency

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designated by the Board for such purposes, shall have power to issue and cause to be served upon

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such person a complaint stating the charges in that respect, and containing a notice of hearing

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before the Board.” 29 U.S.C. §160(b). In this case, the NLRB’s ruling denied Gambone’s

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request to issue a complaint. “In the case of decisions not to file a complaint, the memoranda

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effect as ‘final’ a ‘disposition,’ as an administrative decision can - representing, as it does, an

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unreviewable rejection of the charge filed by the private party.” NLRB v. Sears, Roebuck & Co.,

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421 U.S. 132, 155 (1975). It does not appear that Gambone can appeal the NLRB’s ruling.

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NEMSA also argues that this situation falls under an exception to the mootness doctrine

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which “involve wrongs that are capable of repetition, yet evading review.” Gator.com Corp. v.

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L.L. Bean, Inc., 398 F.3d 1125, 1141 (9th Cir. 2005), citations omitted. In general, “the ‘capable

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of repetition, yet evading review’ doctrine was limited to the situation where two elements

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combined: (1) the challenged action was in its duration too short to be fully litigated prior to its

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cessation or expiration, and (2) there was a reasonable expectation that the same complaining

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party would be subjected to the same action again.” Weinstein v. Bradford, 423 U.S. 147, 149

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(1975). There is no argument that this case involved any action of short duration such that it
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escapes review. NEMSA does argue that circumstances might somehow arise such that the issue

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of Gambone’s installation would arise in the future. The court can not conceive of such a

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scenario. Further, DOL states “the Department of Labor may not now, or in the future, base its

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installation request on Gambone’s membership status.” Doc. 63, Reply, at 3:24-25. DOL

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acknowledges that Gambone is not a member of NEMSA and can not be president of NEMSA

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without being a member of NEMSA. The court relies upon the DOL’s firm statement in ruling

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on this motion; in future proceedings, judicial estoppel may apply. The mootness exception does

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not apply.

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IV. Order

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The Department of Labor’s motion to vacate the June 9, 2011 Order due to mootness of

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the relief requested is GRANTED.

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IT IS SO ORDERED.

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Dated:
0m8i78

March 16, 2012
CHIEF UNITED STATES DISTRICT JUDGE

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