United States District Court, S.D. California
August 9, 2005.
AMERICAN FEDERATION OF STATE COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO and FLORA WALKER as ADMINISTRATOR OF UNITED DOMESTIC WORKERS OF AMERICA/NUHHCE, AFSCME, AFL-CIO, Plaintiffs,
UNITED DOMESTIC WORKERS OF AMERICA/NUHHCE, AFSCME, AFL-CIO, et al. Defendants.
The opinion of the court was delivered by: BARRY MOSKOWITZ, District Judge
ORDER GRANTING APPLICATION FOR AN OSC RE: CONTEMPT; GRANTING
APPLICATION FOR EXPEDITED DISCOVERY; AND DENYING APPLICATION FOR A
Plaintiffs American Federation of State County and Municipal
Employees, AFL-CIO ("AFSCME") and Flora Walker, in her capacity
as Administrator of United Domestic Workers of America/NUHHCE,
AFSCME, AFL-CIO (collectively "Plaintiffs") have filed an ex
parte application for (1) an Order to Show Cause Re: Contempt
against Defendants Kenneth Seaton Msemaji and Fahari Jeffers; (2)
a Temporary Restraining Order and OSC re: Preliminary Injunction
in Aid of Arbitration against Defendant SEIU Local 434B; and (3)
an Order Granting Leave to Take Expedited Discovery. On August 1,
2005, the Court held a hearing on the ex parte application. For
the reasons set forth below, Plaintiffs' applications for an OSC
re: contempt and expedited discovery are GRANTED and
Plaintiffs' application for a TRO is DENIED. I. PROCEDURAL HISTORY
On June 17, 2005, Plaintiffs filed this action, seeking
enforcement of an administratorship imposed upon UDW.
On June 20, 2005, Plaintiffs filed an application for a
temporary restraining order. The following day, the Court held a
hearing on the application. The Court granted Plaintiffs'
application in part and enjoined Defendants from (1) drawing or
transferring funds from UDW's General Fund Account at
Neighborhood National Bank or dissipating or transferring any
other funds or assets of UDW unless ordered by the Court; and (2)
destroying, removing, secreting, or altering the financial
records or any other records of UDW or any records relating to
UDW, including computer files. The TRO was to remain in effect
until the Court ruled on Plaintiffs' motion for preliminary
injunction, which was scheduled to be heard on Monday, June 27,
2005 at 2:00 p.m.
On the afternoon of June 24, 2005, a Friday, the Court received
a notice from UDW's counsel that UDW had scheduled a referendum
on the issue of merging with Service Employees International
Union ("SEIU"), Local 434B. The vote was scheduled to take place
at 9:00 a.m. on June 27, 2005. Plaintiffs' counsel also received
the notice and telephoned chambers to obtain a hearing for an
emergency TRO application.
The Court held a telephonic hearing at 4:10 p.m. on June 24,
2005. During the hearing, counsel for UDW indicated that the
referendum was originally scheduled to take place in July. The
Court concluded that UDW was attempting to divest the Court of
jurisdiction and render the controversy moot. Based on the
actions of UDW, the Court determined that it would be appropriate
to enforce the administratorship on a temporary basis and issued
a temporary restraining order enjoining Defendants from (1)
refusing to turn over possession and control of the offices of
UDW to Flora Walker, as Administrator of UDW, or her designee;
(2) refusing to deliver all property, funds, books, records, and
assets of any kind in their possession to Flora Walker, as
Administrator of UDW, or her designee; (3) representing
themselves as the authorized officers and/or representatives of
UDW, unless so authorized by the Administrator or her designee;
(4) interfering in any manner with the conduct of the administratorship by Flora Walker or her
designee; or (5) destroying, removing secreting, or altering the
financial records of UDW or any financial records relating to
In an order filed on June 30, 2005, the Court granted
Plaintiffs' motion for preliminary injunction and incorporated
the terms of the TRO as the terms of the preliminary injunction.
On July 26, 2005, Plaintiffs filed a First Amended Verified
Complaint for Declaratory and Injunctive Relief ("FAC"), which
adds as a defendant SEIU Local 434B.
II. PERTINENT FACTS
In June of 2000, UDW/AFSCME and SEIU entered into a Memorandum
of Understanding ("MOU"), the purpose of which was to "establish
a final determination of organizing jurisdiction for In Home
Supportive Services home care workers in the State of
California." (Exh. H to FAC.) Pursuant to the agreement,
58 California counties were divided up between AFSCME/UDW or SEIU
for the purposes of exclusive organizing jurisdiction. The MOU
provided that any future adjustments to the assignments could
only be made through discussions or negotiations between
UDW/AFSCME and SEIU.
In November of 2000, AFSCME and SEIU entered into a written
agreement ("Homecare Council Agreement") pursuant to which
UDW/AFSCME was granted membership in the California Homecare
Council. (Exh. I to FAC.) Under the agreement, SEIU and
UDW/AFSCME agreed to develop coordinated legislative and
organizing programs for homecare in California.
The Homecare Council Agreement provides that "there will be
only one local union in the Council organizing or representing
workers in each county." (Paragraph 4.1.) The Agreement also
incorporates the MOU's assignment of organizing jurisdiction.
(Paragraph 5.1.) Disputes regarding the interpretation and
application of the Agreement are to be resolved by dispute
resolution procedures set forth in Paragraph 7.2 as follows:
If a dispute of any type involving the interpretation
and application of the Agreement cannot be resolved
by the Homecare Council, the affected local/affiliate
may appeal the dispute to the International
Presidents who shall direct the Organizing Directors
of AFSCME and SEIU to meet in an attempt to resolve the dispute.
If a dispute cannot be resolved by the Organizing
Directors, it may be referred by either party to
mediation first and, if mediation is not successful,
to arbitration . . . The arbitrator shall [have]
authority to issue the remedy the arbitrator deems
appropriate to effectuate the intent of the parties
the decision shall be final and binding.
Plaintiffs claim that since June 2005, SEIU Local 434B, Seaton
Msemaji and Jeffers, as well as other former officers and
employees of UDW, acting in concert, have engaged in a wide-scale
organizing campaign against UDW/AFSCME within several of the
counties in which UDW/AFSCME has exclusive jurisdiction.
Plaintiffs allege that during the week of July 4, 2005, SEIU
initiated a mass mailing of literature to existing members of
UDW/AFSCME within a majority of the 29 counties assigned to
UDW/AFSCME. The mailing included a letter signed by Msemaji and
Jeffers, who identify themselves as "UDW Founders," and Tyrone
Freeman (General President of SEIU Local 434B) and Amanda
Figueroa (Secretary-Treasurer of SEIU Local 434B). (Exh. J to
FAC.) The letter states:
In our efforts to WIN you a wage increase from this
new money, the founders of UDW and its founding
officers have all agreed that we must UNITE
HOMECARE workers into ONE strong UNION: SEIU
Therefore, Ken, Fahari, Amanda, and I, ask that you
sign the attached membership card and drop it in the
mail today, postage paid.
Remember, we are working to build POWER for
homecare workers. If you want better wages, benefits,
and services, then JOIN our UNITED union today.
SIGN and RETURN the enclosed membership card.
The letter attaches a membership form to join SEIU
According to Plaintiffs, SEIU Local 434B also initiated a mass
telephone call campaign in conjunction with the earlier mailings.
Pre-recorded telephone messages from Msemaji and Jeffers
reiterated that the founders of UDW and its founding officers
have agreed to unite home care domestic workers into one union
(434B) and urged UDW members to sign the membership card to
obtain better wages, benefits, and services. (Transcript of
telephone message attached as Exh. K to FAC.)
Plaintiffs also allege that individuals representing that they
were from UDW or acting on behalf of UDW made in-person visits to
UDW members residing in counties that have been exclusively assigned to UDW for purposes of organizing.
(Frank Decl., ¶ 9.) These individuals made representations that
SEIU and UDW were merging and that by signing the membership
card, the UDW members were agreeing to the merger. (Exh. A to
Frank Decl.) A number of UDW members signed the card based on the
erroneous belief that they were supporting a merger of SEIU and
UDW. (Declarations of Susan H. Parker, Laura Corbett, Dustin
Corbett, and Casandra Wilson.)
Plaintiffs further allege that Local 434B has been using a
UDW/AFSMCE membership list to facilitate its organizing efforts.
Plaintiffs claim that this list was provided to Local 434B by
former officers of UDW prior to June 14, 2005, for purposes of
carrying out the Servicing Agreement.
On July 25, 2005, AFSCME invoked the dispute resolute and
arbitration process under the Homecare Council Agreement.
Plaintiffs seek an OSC re: contempt against the individual
defendants Kenneth Seaton Msemaji and Fahari Jeffers and request
expedited discovery on the issue of contempt. As discussed below,
the evidence presented by Plaintiffs suggests that Msemaji and
Jeffers may have engaged in contempt. Therefore, without making
any findings of fact, the Court finds sufficient cause for an OSC
on the grounds set forth below.
1. Refusal of Local 434B to return membership list
The preliminary injunction enjoins Msemaji and Jeffers and "all
persons acting at the direction of or in concert with them, from
. . . refusing to deliver all property, funds, books, records and
assets of any kind in their possession to Flora Walker, as
Administrator of UDW, or her designee." Plaintiffs take the
position that the membership list previously provided to Local
434B is a record or other property of UDW and that Local 434B, in
concert with Msemaji and Jeffers, is violating the preliminary injunction by
refusing to turn it over. This argument is not persuasive.
Clearly, AFSCME is concerned with the information that Local
434B possesses, not the piece of paper. The information does not
fall within the scope of the Court's order. Furthermore, it
appears that prior to the TRO, officers of UDW gave the
membership list to SIEU. Thus, UDW waived any proprietary right
it would otherwise have to the return of the list.
In addition, it is unclear whether the list was ever in the
possession of Msejami and Jeffers and whether these defendants
have any control over whether Local 434B will give the list back.
Therefore, an OSC will not issue on this ground.
2. Representing that they are authorized officers and/or reps
The preliminary injunction enjoins Msemaji and Jeffers and "all
persons acting at the direction of or in concert with them" from
"representing themselves as the authorized officers and/or
representatives of UDW." Plaintiffs argue that Msemaji and
Jeffers, and individuals acting in concert with them, improperly
represented themselves as acting on behalf of UDW in soliciting
membership cards for SEIU Local 434B. Plaintiffs have presented
sufficient evidence of this type of conduct to warrant an OSC re:
In the July 8, 2005 letter and recorded message, Msemaji and
Jeffers do not explicitly say that they are authorized
representatives of UDW. Instead, they identify themselves as "UDW
Founders." However, the letter and recorded statements may be
understood as conveying the false impression that Msemaji and
Jeffers are acting on behalf of UDW. They talk about "our
efforts to win you a wage increase," implying that they represent
the UDW members. Similarly, they state, "If you want better
wages, benefits and services, then join our united union
today." Seaton-Msemaji and Jeffers never clarify that they are no
longer officers of UDW and do not represent UDW.
Overall, the letter and recorded message can be deemed to be
misleading and could cause a reasonable person to believe that
Msemaji and Jeffers are speaking on behalf of UDW. If Msemaji and Jeffers intended to give the false impression
that they are acting on behalf of UDW, their actions are in
violation of the Court's preliminary injunction order.
Plaintiffs also present evidence that other unidentified
individuals represented themselves as acting on behalf of UDW and
encouraged UDW members to sign the SEIU membership card in
support of the "merger" between UDW and SEIU. Although Plaintiffs
have not established that these individuals were in fact acting
in concert with the individual defendants or that the individual
defendants knew about or encouraged any misrepresentations that
were made, there is sufficient circumstantial evidence meriting a
hearing as to these issues at an OSC hearing.
The OSC shall be limited to the following issues: (1) whether
the individual defendants, or others acting in concert with them,
intentionally misled others into believing that they were acting
on behalf of UDW, and (2) whether the individual defendants, or
others acting in concert with them, interfered with the
administratorship by falsely representing that UDW and SEIU Local
434B have merged or are merging.
The Court emphasizes that under the existing preliminary
injunction, Defendants Kenneth Seaton Msemaji and Fahari Jeffers
and all persons acting at the direction of or in concert with
them, are enjoined from:
(a) making statements that are intended to have the
effect and actually have the effect of misleading
others into believing that they are acting on behalf
of UDW; and
(b) making false representations that UDW has merged
or is merging with SEIU Local 434B.
Plaintiffs request expedited discovery in connection with the
OSC hearing. The Court believes this to be appropriate and grants
Plaintiffs' request for expedited discovery on the issues to be
considered at the OSC hearing. The expedited discovery shall be
completed within 45 days of a discovery conference to be held
before Magistrate Judge Porter on August 16, 2005 at 3:00 p.m. 3. "Raiding" of Members
The preliminary injunction restrains Msemaji and Jeffers "and
all persons acting at the direction of or in concert with them"
from "[i]nterfering in any manner with the conduct of the
administratorship by Flora Walker or her designee." Plaintiffs
argue that Msemaji and Jeffers are interfering with the
administratorship by allying themselves with a competing union
and attempting to steal away UDW/AFSCME's members in violation of
the exclusive jurisdictional agreements. The Court declines to
premise a finding of contempt on this ground.
Whether Msemaji and Jeffers' actions constitute interference
with the administratorship depends on whether their actions are
permissible under labor law and the agreements between SEIU and
UDW/AFSCME. If Msemaji and Jeffers ordinarily would be entitled
to participate in decertification efforts, the existence of an
administratorship should not interfere with those rights.
Plaintiffs do not dispute that the ongoing decertification
efforts are in compliance with applicable labor laws. Apparently,
all of the petitions are being filed during open periods
permitted by law.
There is a dispute over whether Defendants' decertification
efforts are in breach of the MOU and Homecare Council Agreement.
However, this dispute must be resolved by the arbitrator, not
this Court. The Court declines to make any findings regarding the
alleged breach of the MOU and Homecare Council Agreement.
B. Injunctive Relief in Aid of Arbitration
Plaintiffs seek to temporarily enjoin SEIU Local 434B and all
persons acting at the direction of or in concert with SEIU Local
434B from engaging in any organizing activities within the 29
counties designated in the MOU and Homecare Council Agreement as
the exclusive organizational and representational jurisdictions
of UDW/AFSCME. The Court denies Plaintiffs' request for a TRO.
The Court has serious doubts about the merits of Plaintiffs'
claim for injunctive relief. Plaintiffs argue that they are entitled to an injunction to
maintain the status quo pending arbitration. However, it appears
that the Court lacks jurisdiction to grant such an injunction.
Section 4 of the Norris-LaGuardia Act provides:
No court of the United States shall have jurisdiction
to issue any restraining order or temporary or
permanent injunction in any case involving or growing
out of any labor dispute to prohibit any person or
persons participating or interested in such dispute . . .
from doing . . . any of the following acts:
(b) Becoming or remaining a member of any labor
organization or of any employer organization . . .
(f) Assembling peaceably to act or to organize to act
in promotion of their interests in a labor dispute;
(g) Advising or notifying any person of an intention
to do any of the acts heretofore specified;
(h) Agreeing with other persons to do or not to do
any of the acts heretofore specified; and
(i) Advising, urging, or otherwise causing or
inducing without fraud or violence the acts
heretofore specified. . . .
29 U.S.C. § 104.
The term "labor dispute" is defined broadly as any "controversy
concerning terms or conditions of employment, or concerning the
association or representation of persons in negotiating . . .
terms or conditions of employment, regardless of whether or not
the disputants stand in the proximate relation of employer and
employee." 29 U.S.C. § 113(c) (emphasis added). The Supreme
Court explained that Congress deliberately included a broad
definition of "labor dispute" to "overrule judicial decisions
that had unduly restricted the Clayton Act's labor exemption for
the antitrust laws." Jacksonville Bulk Terminals v.
International Longshoremen's Ass'n, 457 U.S. 702, 712 (1982). A
particular controversy qualifies as a "labor dispute" as long as
"the employer-employee relationship [is] the matrix of the
controversy." Id. (quoting Columbia River Packers Ass'n v.
Hinton, 315 U.S. 143, 147 (1942)).
The employer-employee relationship is the "matrix" of the
instant controversy between SEIU Local 434B and UDW/AFSCME. This
dispute concerns who may serve as the bargaining representative
of healthcare workers in certain counties and implicates the
right to organize and designate representatives of one's own choosing,
public policies at the heart of the Norris-LaGuardia Act. See
29 U.S.C. § 102.
Courts have held that jurisdictional disputes between unions
regarding which union may represent certain employees are "labor
disputes" within the meaning of the Norris-LaGuardia Act. See,
e.g., Green v. Obergfell, 121 F.2d 46 (D.C. Cir. 1941)
(explaining in case of jurisdictional dispute between two
international unions that "[i]t would be difficult to imagine a
case which more clearly involves a labor dispute within the
meaning of the Norris-LaGuardia Act."); Blankenship v. Kurfman,
96 F.2d 450 (7th Cir. 1938) (holding that jurisdictional dispute
between unions fell within Norris-LaGuardia Act). In arguing that
the instant dispute is not a "labor dispute," Plaintiffs point to
Drywall Tapers and Pointers of Greater New York, Local 1974 v.
Operative Plasterers' and Cement Masons' Int'l Ass'n,
537 F.2d 669 (2d Cir. 1976). However, Drywall is distinguishable because
it involved a work assignment dispute between unions. As
explained by the court in Drywall: "The injunctive relief
sought here will not infringe upon the workers' organizational or
bargaining rights but will instead enforce a work assignment
agreement negotiated by the unions themselves." Id. at 673-74.
The same cannot be said here.
Plaintiffs argue that even if the instant dispute is a "labor
dispute," the Court can issue an injunction under the Boys
Markets exception. The Court disagrees. In Boys Markets, Inc.
v. Retail Clerks Union, Local 770, 398 U.S. 235 (1970), the
Supreme Court held that under certain circumstances, employers
can obtain injunctions against strikes in violation of a
collective bargaining agreement when the strikes are over a
grievance which both parties are contractually bound to
arbitrate. The Court's holding was a "narrow one" designed to
further the important policy favoring "the voluntary
establishment of a mechanism for the peaceful resolution of labor
disputes." Id. at 252-53.
The Court explained that a no-strike obligation, whether
explicit or implied, is the "quid pro quo" for an agreement by
the employer to submit grievance disputes to arbitration. Id.
at 248. The Court further explained that if injunctive relief
were not available to enforce the no-strike obligation, employers
would lack incentive to agree to arbitration and such agreements would be rendered largely ineffective: "Indeed, the
very purpose of arbitration procedures is to provide a mechanism
for the expeditious settlement of industrial disputes without
resort to strikes, lockouts, or other self-help measures. This
basic purpose is obviously largely undercut if there is no
immediate, effective remedy for those very tactics that
arbitration is designed to obviate." Id. at 249.
In Buffalo Forge Co. v. United Steelworkers of America,
428 U.S. 397 (1976), the Supreme Court clarified that Boys Markets
does not authorize the injunction of a strike where the union is
striking in violation of a no strike-clause but the underlying
dispute is not subject to an obligation to arbitrate. In such a
situation, the strike has "neither the purpose nor the effect of
denying or evading an obligation to arbitrate or of depriving the
employer of its bargain." Id. at 408. In other words, "in
agreeing to broad arbitration and no-strike clauses, the parties
do not bargain for injunctive relief to restore the status quo
pending the arbitrator's decision agreement, without regard to
what triggered the strike. Instead, they bargain only for
specific enforcement of the union's promise to arbitrate the
underlying grievance before resorting to a strike."
Jacksonville, 457 U.S. at 723.
Boys Markets does not apply here. Plaintiffs do not seek an
injunction to specifically enforce a promise to arbitrate.
Rather, Plaintiffs seek to enjoin Local 434B's organizing efforts
to maintain the status quo pending arbitration regarding Local
434B's alleged breach of contract.*fn1 This is exactly the
type of relief that is forbidden by the Norris-LaGuardia Act. As
explained in Buffalo Forge:
If an injunction could issue against the strike in
this case, so in proper circumstances could a court
enjoin any other alleged breach of contract pending
the exhaustion of the applicable grievance and
arbitration provisions even though the injunction
would otherwise violate one of the express
prohibitions of § 4. The court in such cases would be
permitted, if the dispute was arbitrable, to hold
hearings, make findings of fact, interpret the
applicable provisions of the contract and issue
injunctions so as to restore the status quo, or to
otherwise regulate the relationship of the parties
pending exhaustion of the arbitration process. This
would cut deeply into the policy of the
Norris-LaGuardia Act and make the courts potential
participants in a wide range of arbitrable disputes under the many existing and
future collective-bargaining contracts, not just for
the purpose of enforcing promises to arbitrate, which
was the limit of Boys Markets, but for the purpose
of preliminarily dealing with the merits of the
factual and legal issues that are subjects for the
arbitrator and of issuing injunctions that would
otherwise be forbidden by the Norris-LaGuardia Act.
Id. at 410-11.
Plaintiffs are not likely to succeed on the merits of their
claim. In addition, the granting of a TRO could cause irreparable
harm to Local 434B and members of UDW who wish to have Local 434B
as their representative. At the present time, petitions to
decertify UDW may be filed under the rules of the MMBA and LMRA.
However, if the Court were to issue a TRO, the open period for
filing decertification petitions could close and Local 434B could
be precluded from representing employees in certain
For the reasons discussed above, the Court GRANTS Plaintiffs'
request for an OSC re: contempt. The OSC shall be heard on
October 31, 2005 at 9:00 a.m. Plaintiffs may file supplemental
papers regarding the alleged contempt on or before October 12,
2005. The individual defendants may file a supplemental response
on or before October 26, 2005. The scope of the OSC hearing shall
be limited as set forth in this order.
The Court GRANTS Plaintiffs' request for expedited discovery
as to the issues to be considered at the OSC hearing. The Court
orders the parties to appear before Magistrate Judge Porter for a
discovery conference on August 16, 2005 at 3:00 p.m. The
expedited discovery shall be completed within 45 days of the
discovery conference. No deposition shall exceed three hours
unless extended by order of the Magistrate Judge. Magistrate
Judge Porter shall have full authority to regulate and streamline
the discovery authorized by this order. The Court DENIES Plaintiffs' request for a TRO in aid of
arbitration against SEIU Local 434B.
IT IS SO ORDERED.
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