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Hilda L. Solis, Secretary of Labor, United States Department of Labor v. National Emergency Medical Services Association

June 9, 2011



Plaintiff has made a motion for preliminary injunction seeking to have James Gambone appointed as president of NEMSA pending the resolution of the case. Defendant opposes the motion. The court has reviewed the papers filed and has determined that the motion is suitable for decision without further oral argument. See Local Rule 230(g). The motion is denied as the operative law provides for a new election as relief and not appointment of an interim president.

I. History

Plaintiff Department of Labor ("DOL") is representing James Gambone ("Gambone") who is seeking to become the president of the board of directors of Defendant National Emergency Medical Services Association ("NEMSA"), a union of emergency medical technicians ("EMT") headquartered in Modesto, California. Gambone was an EMT working for third party American Medical Response ("AMR"). In 2006, NEMSA hired Gambone part time to organize his co-workers. After NEMSA was certified to represent AMR's workers, Gambone worked simultaneously for NEMSA and AMR until August 29, 2007 when he was fired by AMR. NEMSA, on behalf of Gambone, challenged the termination with the National Labor Relations Board ("NLRB"); that dispute has not yet been fully resolved. In the intrim, Gambone worked for NEMSA full time. Whether Gambone ever became a member of the NEMSA union is a disputed fact.

NEMSA scheduled elections to be held during the summer of 2010 for the positions of president and secretary of the board of directors of NEMSA. The term of office in three years. Gambone, seeking to be put on the ballot, submitted paperwork nominating himself as president. NEMSA refused to include Gambone on the ballot arguing that Gambone did not meet the eligibility requirements. Gambone then launched a write-in campaign. The ballots were sent out with directions that they had to be received by July 9, 2010. On July 12, 2010, the ballots were counted. Also running for president were Larry Lucas ("Lucas") and Torren Colcord ("Colcord"), the incumbent president. NEMSA did not count the ballots in which members wrote in Gambone's name and declared Lucase the winner, asserting that NEMSA's bylaws do not provide for the acceptance of write-in votes. Gambone wrote NEMSA on July 19, 2010 to contest the results. NEMSA rejected Gambone's challenge. NEMSA recounted the ballots on July 30, 2010 and again declared Lucas the winner.

Meanwhile, Gambone, as an employee of NEMSA, organized a new union of NEMSA employees, the NEMSA Representatives Employee Association ("REA"). While NEMSA is a union itself, NEMSA employees (distinct from EMTs who are members of the NEMSA union and work for third parties like AMR) formed REA. Gambone became interim president of REA and filed a petition with the NLRB seeking certification on May 3, 2010. NEMSA offered to recognize the REA by letter dated May 5, 2010. NEMSA then fired Gambone on May 10, 2010.

On August 2, 2010, Gambone sought arbitration of the election dispute in accord with NEMSA bylaws. On August 24 and 15, 2010, Gambone and NEMSA took part in an arbitration hearing which took place at NEMSA's headquarters. NEMSA objected to the arbitrability of the dispute, arguing that Gambone was not a NEMSA union member covered by the bylaws. Upon the arbitrator's announcement of a preliminary conclusion that the dispute was arbitrable, NEMSA withdrew from the proceedings and ordered the arbitrator and Gambone to vacate the premises. The arbitration proceeded at another location without NEMSA's participation. On September 2, 2010, the arbitrator found in favor of Gambone and ordered his installation as president of NEMSA. Thereafter, Gambone resigned as interim president of REA. Sometime after the arbitration award, Gambone and allied NEMSA union members took control of NEMSA headquarters for a few days before Colcord had him evicted from the building. Lucas resigned as president of NEMSA on December 8, 2010. NEMSA's board of directors appointed Eric Stephens, the then vice president, as president.

Meanwhile, Gambone filed a complaint with DOL on September 27, 2010. DOL investigated the matter. DOL's tabulation of the presidential election ballots concluded that Gambone received 205 votes compared with Lucas's 128 votes and Colcord's 111 votes. At an unspecified date, NEMSA filed suit in Stanislaus County Superior Court against Gambone and the other individuals who took over the headquarters, alleging (among other claims) theft, trespass, and breach of fiduciary duties. The state court case was stayed on November 9, 2010 pending DOL action.

DOL brought this present suit on March 28, 2011, under Title IV of the Labor-Management Reporting and Disclosure Act ("LMRDA"), alleging NEMSA violated union election procedures set out in 29 U.S.C. §481. DOL also filed a motion for preliminary injunction, seeking to have Gambone installed as president in the interim. Doc. 4. NEMSA filed a motion to dismiss, raising issues of subject matter jurisdiction. Doc. 6. In response, DOL filed an amended complaint which mooted the motion to dismiss. Doc. 23, Part 2. NEMSA has filed an opposition to the motion for preliminary injunction and DOL has filed an opposition. Docs. 12 and 33.

II. Legal Standards

A party seeking a preliminary injunction must demonstrate that "he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. NRDC, Inc., 129 S.Ct. 365, 374 (2008), citations omitted. Following the U.S. Supreme Court's holding in Winter, the Ninth Circuit has held that, "[t]o the extent that our cases have suggested a lesser standard, they are no longer controlling, or even viable." Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009). "In each case, courts must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief." Indep. Liv. Cntr. of Southern Cal., Inc. v. Maxwell-Jolly, 572 F.3d 644, 651 (9th Cir. 2009), citations omitted.

III. Discussion

A. Subject Matter Jurisdiction

In the mooted motion to dismiss, NEMSA raised a subject matter jurisdiction challenge. Whenever subject matter jurisdiction is in doubt, courts have an independent duty to affirmatively resolve ths issue. See Allstate Ins. Co. v. Hughes, 358 F.3d 1089, 1093 (9th Cir. 2003). DOL is seeking to install Gambone as president of the board of directors of NEMSA. Gambone was also president of REA. NEMSA cites to the National Labor Relation Act which states in part, "It shall be an unfair labor practice for an employer...(2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it." 29 U.S.C. §158(a). NEMSA asserts that Gambone's past leadership of REA would illegally entangle NEMSA with REA if he were to become president of NEMSA; "This Court therefore does not have subject matter jurisdiction over this claim because it would be illegal for Mr. Gambone to hold office on the Board of NEMSA in any capacity." Doc. 8, Motion to Dismiss Brief, at 13:14-17.

DOL brings this suit pursuant to 29 U.S.C. ยง482(b), which specifically authorizes DOL to bring "a civil action against the labor organization as an entity in the district court of the United States in which such labor organization maintains its principal office to set aside the invalid election, if any, and to direct the conduct of an election or hearing and vote upon the removal of officers under the supervision of the Secretary and in accordance with the provisions of this title and such rules and regulations as the Secretary may prescribe." NEMSA's argument goes to the merits of the case and the propriety of the relief sought, not subject matter jurisdiction. "Subject matter jurisdiction defines the court's authority to hear a given type of case." Carlsbad ...

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