United States District Court, N.D. California
October 19, 2005.
THE UNITED SCREENERS ASSOCIATION LOCAL ONE, et al. Plaintiffs,
CITY AND COUNTY OF SAN FRANCISCO; SAN FRANCISCO AIRPORT COMMISSION, Defendants.
The opinion of the court was delivered by: JEFFREY WHITE, District Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO
DISMISS PLAINTIFFS' SECOND AMENDED COMPLAINT
This matter comes before the Court upon consideration of the
motion to dismiss Plaintiffs' Second Amended Complaint ("SAC")
filed by the City and County of San Francisco ("City"), the San
Francisco Airport Commission ("Commission"), and John L. Martin
("Mr. Martin") (collectively "City Defendants").
Having considered the parties' pleadings, relevant legal
authority, the record in this case, having had the benefit of
oral argument,*fn1 and for the reasons set forth in the
remainder of this Order, the Court GRANTS IN PART AND DENIES IN
PART the motion.
Covenant provides passenger and baggage security screening at
the San Francisco International Airport ("SFO"), pursuant to a
contract with the Department of Homeland Security and a lease with the City. (SAC, ¶¶ 15-17.) Local One is a labor
union that wants to be the recognized bargaining agent for
In February 2000, the Commission adopted Resolution No. 00-0049
entitled "Resolution Approving Use of Labor Peace/Card Check Rule
and Model Card Check Agreement," which is comprised of a
resolution, a rule, and a model agreement (hereinafter "Card
Check Resolution"). (See SAC, ¶ 17, Ex. 2.) The Card Check
Resolution enables a labor organization to become the recognized
representative for a group of employees through a mechanism that
is separate from election procedures established by the National
Labor Relations Act. (Id., ¶ 20.) Plaintiffs do not challenge
the validity or constitutionality of the Card Check Resolution.
Local One has had to compete with Service Employees
International Union Local 790 ("SEIU Local 790") in its efforts
to become the bargaining agent for Covenant employees. As a
result of a settlement agreement regarding disputes with SEIU
Local 790 and Covenant, Local One was given the right to call a
secret ballot election on the question of whether Covenant
employees wanted it as their bargaining representative. (See
SAC, ¶¶ 44-48.) Although not set forth in the SAC, Plaintiffs
lost the election. (See Opp. at 14, 15.)
Plaintiffs allege that the City Defendants have unlawfully
favored SEIU Local 790 over Local One. By way of example,
Plaintiffs allege that Mr. Martin only notifies American
Federation of Labor Congress of Industrialized Organizations
when the Airport selects a contractor. Plaintiffs also allege
that the City Defendants did not take affirmative steps to
prevent SEIU Local 790 organizers from harassing Local One
members and failed to remedy this when Local One complained.
Finally, Plaintiffs allege that the City Defendants apply the
terms of the Card Check Resolution in an unequal fashion. (See
generally SAC, ¶¶ 30-43.)
As of the date of the filing of the SAC, neither Local One nor
SEIU Local 790 had requested a Card Check Agreement with
Covenant. (Declaration of Tryg McCoy, ¶ 4.)*fn2 ANALYSIS
A. Legal Standards Applicable to Motions to Dismiss.
A motion to dismiss is proper under Rule 12(b)(6) where the
pleadings fail to state a claim upon which relief can be granted.
Fed.R.Civ.P. 12(b)(6). A motion to dismiss should not be
granted unless it appears beyond a doubt that a plaintiff can
show no set of facts supporting his or her claim. Conley v.
Gibson, 355 U.S. 41, 45-46 (1957); see also De La Cruz v.
Tormey, 582 F.2d 45, 48 (9th Cir. 1978). In ruling on a Rule
12(b)(6) motion, the complaint is construed in the light most
favorable to the non-moving party and all material allegations in
the complaint are taken to be true. Sanders v. Kennedy,
794 F.2d 478, 481 (9th Cir. 1986). The court, however, is not
required to accept legal conclusions cast in the form of factual
allegations if those conclusions cannot reasonably be drawn from
the facts alleged. Cleggy v. Cult Awareness Network,
18 F.3d 752, 754-55 (9th Cir. 1994) (citing Papasan v. Allain,
478 U.S. 265, 286 (1986)).
As a general rule, "a district court may not consider any
material beyond the pleadings in ruling on a Rule 12(b)(6)
motion." Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994),
overruled on other grounds, Galbraith v. County of Santa Clara,
307 F.3d 1119 (9th Cir. 2002) (citation omitted). A district
court may consider documents attached to a plaintiff's complaint
without converting a motion to dismiss into a motion for summary
judgment. Hal Roach Studios, Inc. v. Richmond & Feiner Co.,
Inc., 806 F.2d 1542, 1555 n. 19 (9th Cir. 1989). Unlike a Rule
12(b)(6) motion, in moving to dismiss under Rule 12(b)(1) a party
can "attack the substance of a complaint's jurisdictional
allegations despite their formal sufficiency, and in so doing
rely on affidavits or any other evidence properly before the
court." St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir.
B. Claims Against the City Defendants.
Plaintiffs assert one cause of action against the City
Defendants for violations of 42 U.S.C. § 1983 and
42 U.S.C. § 1985. Plaintiffs allege that the City Defendants' conduct in
favoring SEIU Local 790 and in failing to enforce the Card Check
Resolution in an equal manner deprives them of their rights: (1)
under the National Labor Relations Act ("NLRA"); (2) their First Amendment right to freedom of association; (3) their
Fourteenth Amendment right to equal protection; and (4) their
Fifth and Fourteenth Amendment rights to due process of the law.
(SAC, ¶¶ 67-73.)
The City Defendants move to dismiss portions of the Section
1983 claim pursuant to Rule 12(b)(6) on the grounds that
Plaintiffs have not been deprived of their due process rights
under the Fifth and Fourteenth Amendments and have not been
deprived of their First Amendment right to freedom of
association. The City Defendants move to dismiss the Section 1985
claim under Rule 12(b)(6) on the ground that Plaintiffs are not
members of a protected class. Finally, the City Defendants move
to dismiss the entirety of the first cause of action on the
grounds that Plaintiffs lack standing and that the claims are not
1. Plaintiffs fail to state a claim based on violations of Due
Plaintiffs premise their Section 1983 claim in part on alleged
violations of their Due Process rights under the Fifth and
Fourteenth Amendments. To establish a claim for violation of due
process, a plaintiff must show government deprivation of a life,
liberty, or property interest. See Nunez v. City of Los
Angeles, 147 F.3d 867, 871 (9th Cir. 1998). Taking the facts
alleged in the SAC as true, Plaintiffs fail to state facts
demonstrating that the City Defendants' actions deprived them of
a life, liberty or property interest. Furthermore, at the hearing
on the motion, Plaintiffs failed to elucidate any such interest
in response to the Court's inquiry on this point. In light of
these facts and given that the SAC is the third iteration of
Plaintiffs' complaint, the Court concludes that there are no
facts that Plaintiffs could allege to state such a claim against
the City Defendants.
Accordingly, the City Defendants motion as to this aspect of
Plaintiffs' Section 1983 claim is granted and this portion of the
first cause of action is DISMISSED WITH PREJUDICE.
2. Plaintiffs fail to state a claim under 42 U.S.C. § 1985.
To establish a claim for a violation of 42 U.S.C. § 1985(3), "a
plaintiff must allege and prove four elements: (1) a conspiracy;
(2) for the purpose of depriving, either directly or indirectly,
any person or class of persons of the equal protection of the
laws, or of equal privileges and immunities under the laws; and
(3) an act in furtherance of this conspiracy; 4) whereby a person is either injured in his person or property or
deprived of any right or privilege of a citizen of the United
States." Sever v. Alaska Pulp Corporation, 978 F.2d 1529, 1536
(9th Cir. 1992) (citing United Brotherhood of Carpenters and
Joiners of America v. Scott, 463 U.S. 825, 828-29 (1983)).
To establish the second element of a Section 1985(3) claim, a
plaintiff must allege and prove that the deprivation of the right
in question was "motivated by `some racial, or perhaps otherwise
class-based, invidiously discriminatory animus behind the
conspirators' action.'" Id. (quoting Griffith v.
Breckenridge, 403 U.S. 88, 102 (1971)); see also McCalden v.
California Library Ass'n, 955 F.2d 1214, 1223 (9th Cir. 1992)
("`the plaintiff must be a member of a class that requires
special federal assistance in protecting its civil rights.'")
(quoting Gerritsen v. de la Madrid Hurtado, 819 F.2d 1511, 1519
(9th Cir. 1987)).
In United Brotherhood of Carpenters and Joiners of America,
Local 610, AFL-CIO v. Scott, 463 U.S. 825 (1983), the Supreme
Court held, in the context of a Section 1985(3) claim based on
alleged violations of First Amendment rights, that conduct taken
by union members against non-members was not subject to the
protection of Section 1985 where the alleged conspirators were
driven by an economic or commercial motive. Scott,
463 U.S. at 838-39.*fn3
Subsequent to the Supreme Court's decision in Scott, in
Sever, supra, the Ninth Circuit stated that its general rule
is that section 1985(3) is extended beyond race only
when the class in question can show that there has
been a governmental determination that its members
require and warrant special federal assistance in
protecting their civil rights. . . . More
specifically, we require either that the courts have
designated the class in question as a suspect or
quasi-suspect classification requiring more exacting
scrutiny or that Congress has indicated through
legislation that the class required special
Sever, 978 F.2d at 1536 (citations and internal quotations
omitted). Plaintiffs contend they qualify as a "protected class" for
purposes of Section 1985 because they are employees with rights
under the NLRA. Plaintiffs' only authority in support of this
argument is Golden State Transit Corp. v. City of Los Angeles,
493 U.S. 103
(1989). In the Golden State case, the Supreme
Court held that a party could pursue a Section 1983 claim based
upon governmental interference in conduct protected under the
NLRA. The Court did not, however, suggest that the NLRA
represents a "governmental determination that [union or non-union
employees] require and warrant special federal assistance in
protecting their civil rights." Nor did the Supreme Court suggest
that such a class required special protection.
The Court concludes that Plaintiffs have failed to state a
claim under Section 1985. First, it is clear from the SAC that
the sole purpose for Card Check Resolution and the accompanying
rule "is to protect the Airport Commission and its proprietary
interest in the efficient operation of the Airport, the resulting
revenues from those operations, revenues directly accruing to the
City from those operations, and the revenues indirectly accruing
to the City from its positive image as a center for business and
tourism." (SAC, Ex. 2 at p. 3; see also generally SAC, Ex. 2 at
¶. 1-3.) To the extent Plaintiffs' allegations rest on claims
that the City Defendants use the Card Check Resolution to
discriminate against them in favor of other unions, they have not
alleged facts to show that the City Defendants were driven by
anything other than commercial or economic motives.
In addition, assuming without deciding that Plaintiffs' status
as a labor union or as members of a labor union would render them
a "protected class" for purposes of Section 1985, the facts
alleged do not suggest that the City Defendants' were motivated
by the Plaintiffs' status as union members. Rather, Plaintiffs
assert that the City Defendants preferred other unions over
Plaintiffs' union. The Court concludes that such allegations do
not establish that Plaintiffs are the type of protected class who
warrant protection under Section 1985(3).
Accordingly, the City Defendants' motion as to Plaintiffs'
Section 1985(3) claim against the City Defendants is GRANTED and
this claim is DISMISSED WITH PREJUDICE. 3. Plaintiffs Have Not Alleged Sufficient Facts to Show They
Have Standing as to the Section 1983 Claim to the Extent It is
Based on Alleged Violations of Their Rights Under the NLRA.
"Article III of the Constitution requires that a plaintiff have
standing before a case may be adjudicated." Covington v.
Jefferson County, 358 F.3d 626, 637 (9th Cir. 2004). To satisfy
the Constitution's standing requirements, a plaintiff must show
(1) an "injury in fact" that is (a) concrete and particularized
and (b) actual or imminent, not conjectural or hypothetical; (2)
the injury must be fairly traceable to the challenged action of
the defendant; and (3) it must be likely, as opposed to merely
speculative, that the injury will be redressed by a favorable
decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992); see also Covington, 358 F.3d at 637-38. A plaintiff, as
the party invoking federal jurisdiction, bears the burden of
establishing these elements. Lujan, 504 U.S. at 561. "At the
pleading stage, general factual allegations of injury resulting
from the defendant's conduct may suffice, for on a motion
dismiss, [courts] presume that general allegations embrace those
specific facts that are necessary to support the claim." Id.
(internal cite and quotations omitted).
Although the First Cause of Action references actions taken by
the City Defendants pursuant to the Card Check Resolution, the
allegations about the City Defendants' conduct do not depend on
any person having invoked it. Rather, Plaintiffs claim that the
City Defendants treated them differently from other unions,
including allegedly disparate use of the terms of the Card Check
Resolution. Plaintiffs allege that they were injured by the City
Defendants' conduct because those actions undermined their free
choice in the election and because Local One lost the election.
(See, e.g., SAC, ¶¶ 32-38; Opp. at 6:14-16, 19-22; 14:3-7;
15:10-14.) At the pleading stage, the Court concludes that these
facts would be sufficient to demonstrate the first two prongs of
the standing requirements.
Plaintiffs have not, however, met their burden to show that
this Court can redress this aspect of their Section 1983 claim.
The Court recognizes that in the Golden State case, supra,
the Supreme Court held that a Section 1983 claim may be premised
upon violations of the NLRA. In Golden State, however, it was
evident that the plaintiffs' alleged injuries could be redressed
by the court. Here, Plaintiffs candidly admit the crux of this
aspect of the Section 1983 claim is their assertion that the City Defendants have
interfered in their campaign to become the recognized bargaining
agent for Covenant employees and that they were injured because
they lost the election. (See, e.g., Opp. at 6:14-16, 19-22;
Specifically, Plaintiffs state that they seek relief "forcing"
the City Defendants "to cease interfering with Plaintiff, Local
One, as it campaigns to unionize airport employees." (SAC, ¶ 1;
see also SAC, Prayer for Relief at p. 21 (requesting injunctive
relief to preliminarily and permanently enjoin the City
Defendants from "interfering with any union campaign on the
Airport premises").) Plaintiffs further allege that the City
Defendants "unlawfully interfered with the union organizing
activities and election campaign by favoring SEIU Local 790 over
Local One," and that certain actions taken by the City Defendants
"materially constrain Covenant employees' free choice during the
campaign." (Id., ¶¶ 30, 32.) Plaintiffs also allege that the
City Defendants "took no affirmative steps to prevent S.E.I.U.
organizers and activists from harassing Local One members," and
that the City Defendants "created an atmosphere that encourages
physical threats and open hostility in an effort to intimidate
Local One's supports and put them in fear of physical and/or
company retaliation." (Id., ¶¶ 35, 36; see also id., ¶¶ 37-43
(describing other actions by City Defendants related to election
Taking these factual allegations to be true, Plaintiffs'
allegations against the City Defendants on the NLRA aspect of the
Section 1983 claim are a challenge to the outcome of the
election. However, the NLRB has primary jurisdiction over matters
of representation, including the conduct of an election. See
Pace v. Honolulu Disposal Services, Inc., 257 F.3d 1150, 1156
(9th Cir. 2000). If a party challenges an election, the NLRB can
look to conduct of third parties. See, e.g., N.L.R.B. v. Sauk
Valley Mfg. Co., Inc., 486 F.2d 1127, 1131-32 & n. 5 (9th Cir.
1973) (discussing standards for reviewing challenges to elections
based on non-party conduct). Taking the factual allegations in
the SAC as true, and whether this aspect of Defendants' motion
would be characterized more properly as a challenge to subject
matter jurisdiction, Plaintiffs have not alleged facts
demonstrating that their alleged injury with respect to the
Section 1983 NLRA claim can be redressed by this Court. As such, Defendants' motion is GRANTED and that aspect of
Plaintiffs' claim is DISMISSED. Because, Plaintiffs have stated
to the Court that they likely will seek leave to amend the
current SAC, the Court shall not dismiss this aspect of
Plaintiffs' Section 1983 claim with prejudice. If Plaintiffs wish
to amend this claim to seek relief for an injury that could be
redressed by and falls within the jurisdiction of this Court,
they may include such a request in any motion to amend. If
Plaintiffs make such a request, they shall identify the
particular rights under the NLRA that are at issue, citing to the
particular sections of the NLRA that form the basis of their
4. Plaintiffs have stated a Section 1983 claim based on
alleged deprivations of their right to freedom of
Finally, Plaintiffs base their Section 1983 claim on alleged
deprivations to their First Amendment right to freedom of
association. In moving to dismiss this claim under Rule 12(b)(6),
the City Defendants again focus on the Card Check Resolution and
argue that Plaintiffs have not demonstrated that the Card Check
Resolution directly and substantially abridged their right to
associate with a labor union. (City Defendants Mot. at 11-12.)
However, Plaintiffs' allegations are not so limited. Rather,
Plaintiffs claim that a multitude of actions by the City
Defendants abridge their right to association. (See SAC, ¶¶
30-43.) At this stage of the litigation, the Court concludes
Plaintiff have met their pleading burden and the City Defendants'
Rule 12(b)(6) motion is DENIED as to this aspect of their Section
1983 claim. CONCLUSION
For the foregoing reasons, Defendants motion is GRANTED IN PART
AND DENIED IN PART. The City Defendants answer shall be due
within twenty (20) days of the date of this Order.
IT IS SO ORDERED.
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