The opinion of the court was delivered by: Walker, District Judge.
Plaintiff Aeroground, Inc, a company that provides cargo-handling
services for airlines at the San Francisco International Airport,
challenges the airport commission's "Labor Peace/Card Check" rule. For
the reasons set forth below, Aeroground's motion for a preliminary
injunction (Doc # 11) is GRANTED.
The City and County of San Francisco owns the airport, which is
operated by the city's airport commission headed by. the airport
director, John L Martin (collectively, defendants). Beccia Decl (Doc #
14), Exh A at 1. On February 1, 2000, the airport commission adopted a
rule called the "Labor Peace/Card Check" rule in an effort to minimize
the perceived threat of labor unrest arising out of union organizing
drives at the airport. Id, Exh B. While obligating unions not to
undertake economic actions such as strikes, picketing and boycotts in
relation to organizing campaigns, the rule requires certain employers
operating at the airport to enter into a "Labor Peace/Card Check"
agreement with any union that has registered with the airport director
and requested such an agreement. Id § II (3)(c); id § II (1)(a).
Under the rule, the labor agreement must provide that the preference of
the company's employees with respect to union representation be
determined by a card check procedure. Id § I (1)(a); id § II
(1)(a). A card check procedure is a process whereby a union provides
employees with cards that ask them to designate the union as their
bargaining representative; if a majority of the employees sign and return
the cards to an objective third party, the union becomes the employees'
exclusive bargaining representative. See Hotel Employees, Local 2 v.
Marriott Corp., 961 F.2d 1464, 1465 n. 1 (9th Cir. 1992). Absent an
agreement recognizing the card check procedure, an employer has the right
under the National Labor Relations Act (NLRA) to insist that the issue of
union representation be determined by a secret ballot election conducted
by the National Labor Relations Board (NLRB). Id. at 1468;
29 U.S.C. § 159 (e). The card check rule, therefore, compels
employers desiring to continue to do business at the
airport to forego their right to have the union status of their employees
determined by NLRB elections.
Aside from mandating the card check procedure, the rule also includes
several other provisions affecting the conduct of employers at the
airport. The rule requires the labor agreement to compel the parties to
submit to binding arbitration over disputes about the proper
interpretation of the agreement or regarding issues arising out of the
card check process. Beccia Decl (Doc # 14), Exh B § I (1)(b). The
rule also obligates employers to include in any subcontract a provision
requiring the subcontractor to abide by the terms of the rule. Id §
II (1)(d). And in the event the employer and union fail to negotiate a
labor agreement within 30 days of the union's request, the parties become
bound by the "Model Card Check Agreement," which requires, among other
things, that the employer provide the union with the names, addresses and
phone numbers of its employees. Id § III; see also id, attachment
Aeroground is currently one of the employers subject to the card check
rule. To be sure, the rule explicitly exempts an employer's operations at
the airport that are regulated by the Railway Labor. Act (RLA),
45 U.S.C. § 151 et seq, as determined by a final decision of a court
or agency or by agreement between the employer and its employees'
bargaining representative. Id § II (4)(d). Aeroground asserts that
its operations at the airport are governed by the RLA, but that issue is
not before the court. Indeed, the RLA status of Aeroground is currently
being evaluated by the National Mediation Board. In any event, whether
Aeroground is covered by the RLA is not yet resolved, and thus the
provisions of the card check rule continue to govern its relationship with
On February 2, 2001, the Teamsters, Local 85 requested that Aeroground
enter into a labor agreement with it pursuant to the card check rule.
Aeroground petitioned the airport director for an exemption as an
RLA-governed company. The airport director denied Aeroground's petition
and the airport commission later confirmed that decision. Rather than
agreeing to enter a labor agreement with the Teamsters, Aeroground
initiated this litigation on April 25, 2001, seeking declaratory and
injunctive relief from the rule. See Compl (Doc # 1). A refusal by
Aeroground to enter such an agreement triggers the airport director's
authority to terminate Aeroground's aviation support services permit.
Beccia Decl (Doc # 14), Exh B § IV(2); see also id, Exh A §
11.14. Without this permit, Aeroground would be unable to conduct its
business at the airport.
Aeroground asserts that the card check rule is preempted by the NLRA,
the RLA and the Airline Deregulation Act (ADA). In addition, because the
NLRA provides rights with which states and municipalities may not
interfere, Aeroground similarly contends that the rule deprives
Aeroground of its NLRA rights in violation of 42 U.S.C. § 1983. By
the present motion, Aeroground seeks an order preliminarily enjoining
defendants from enforcing the card check rule against it during the
pendency of this action.
In this regard, Aeroground points out that it did not voluntarily sign
the permit. See Bonino Decl (Doc # 82), ¶¶ 2-5. In fact, Aeroground
protested to the airport that it did not want to sign the permit because
of the requirement of compliance with the card check rule. Id, ¶ 5.
Defendants, however, gave Aeroground no choice because without the permit
Aeroground could not service its airline customers at the airport.
Aeroground's decision to sign the permit thus appears not to have been
voluntary. Accordingly, the court concludes that defendants' argument
based on waiver lacks merit.
To prevail on a motion for preliminary injunction, the moving party
must satisfy one of two tests available in this circuit. Under the
traditional test, the party must demonstrate: (1) irreparable injury if
the relief is denied; (2) probability of success on the merits; (3) the
balance of potential harm favors the moving party; and (4) the public
interest favors the injunction. See International Jensen, Inc. v.
Metrosound USA Inc., 4 F.3d 819, 822 (9th Cir. 1993). Under the
alternative test, the moving party can prevail "by demonstrating either
(1) a combination of probable success on the merits and the possibility
of irreparable injury if the relief is not granted; or (2) the existence
of serious questions going to the merits and that the balance of
hardships tips sharply in its favor." Id. These two formulations under
the alternative test ...