Hernandez v. Creative Concepts, Inc.

• Citation: 862 F.Supp.2d 1073
• Decision Date: 28 May 2012
• Docket Number: No. 2:10–CV–02132–PMP–VCF.,2:10–CV–02132–PMP–VCF.
• Parties: Gabriel HERNANDEZ, Rodolfo Nava, Ivan Madrigal, Francisco Castillo, Joel Rosa De Jesus, Juan Carlos Navarrete, Juan Jose Acosta Flores, Ismael Amparan–Cobos, Efren Ruano, Juan Palomera, Octavio Anchondo, Arnoldo Rodriguez, and Jesus Anchondo, Plaintiffs, v. CREATIVE CONCEPTS, INC.; Speidel Enterprises, Inc.; John Speidel; Paul Schelly; Northern Pipeline Construction Co.; and NPL Construction Co., Defendants.
• Court: U.S. District Court — District of Nevada

862 F.Supp.2d 1073

Gabriel HERNANDEZ, Rodolfo Nava, Ivan Madrigal, Francisco Castillo, Joel Rosa De Jesus, Juan Carlos Navarrete, Juan Jose Acosta Flores, Ismael Amparan–Cobos, Efren Ruano, Juan Palomera, Octavio Anchondo, Arnoldo Rodriguez, and Jesus Anchondo, Plaintiffs,

v.CREATIVE CONCEPTS, INC.; Speidel Enterprises, Inc.; John Speidel; Paul Schelly; Northern Pipeline Construction Co.; and NPL Construction Co., Defendants.

No. 2:10–CV–02132–PMP–VCF.

United States District Court, D. Nevada.

May 28, 2012.

Dawn Hooker, Thomas F. Christensen, Christensen Law Offices, Las Vegas, NV, Stanley D. Broome, Grapevine, TX, for Plaintiffs.

Edwin A. Keller, Jr., Gregory J. Kamer, Richard T. Creer, Kamer Zucker Abbott, Las Vegas, NV, for Defendants.

ORDER

PHILIP M. PRO, District Judge.

Before the Court is Defendant NPL Construction Co.'s (“NPL”) Motion for Summary Judgment (Doc. # 42), filed on August 15, 2011. Plaintiffs filed an Opposition (Doc. # 66) and a Motion for Continuance of Submission of NPL's Summary Judgment Motion (Doc. # 65) on October 26, 2011. Defendant NPL filed an Opposition to Plaintiff's Motion for Continuance (Doc. # 70) and a Reply (Doc. # 71) on November 18, 2011. The Court held a hearing on these motions on February 22, 2012. (Mins. of Proceedings (Doc. # 73).) Following the hearing, the parties submitted supplemental briefs (Doc. # 79, # 81, # 84, # 85) pursuant to the Court's Order (Doc. # 74).

I. BACKGROUND

Plaintiffs are former employees of Defendant NPL. (Mot. Summ. J. (Doc.# 42) [“MSJ”], Ex. 4 at 3–4, Ex. 8.) NPL is a Nevada corporation formed out of a merger in 1996 between Northern Pipeline Construction Co., a Minnesota corporation, and Southwest Gas Company of Arizona, a Nevada corporation. (MSJ, Ex. 1 at 2, Ex. 5.) After the merger, the surviving corporation's legal name was Northern Pipeline Construction Co., but it did business under the name NPL Construction Co. until 2008 when it formally changed its legal name to NPL Construction Co. (MSJ, Ex. 1 at 2.) NPL was a signatory to collective bargaining agreements (“CBAs”) with local units of the International Laborers Union of North America at all relevant times. (MSJ, Ex. 1 at 2, Ex. 4 at 2, Exs. 6, 7.) Plaintiffs were members of the union during their employment with NPL. (MSJ, Ex. 4 at 3, Exs. 9, 10.)

The CBAs provide that the agreements were entered into between NPL and the union “in a mutual effort to determine the hours, wages, fringes and other conditions of employment and to adopt measures for the settlement of differences and monitoring a cooperative relationship so that the employer may have sufficient capable Laborers and the Laborers may have as much continuous employment as possible, without interruption by strikes, lockouts, or other Labor-management trouble.” (MSJ, Ex. 6 at 1.) The CBAs further provide that NPL had “sole jurisdiction of the management and operation of its[ ] business, the direction of its[ ] workforce, ... and to hire and discharge employees subject to the provision of this agreement.” ( Id. at 3.) The CBAs also contain a wage rate schedule and a procedure for settling grievances. ( Id. at 10–11.)

In April 2002, NPL received letters from the Social Security Administration advising that the names and social security numbers of some employees, including Plaintiffs, did not match the information in the Social Security Administration's database. (MSJ, Ex. 1 at 2.) In response to these letters, NPL advised employees that a company called Creative Concepts could assist individuals who have problems associated with their social security numbers and immigration. (Opp'n to Mot. Summ. J. (Doc. # 66) [“Opp'n”], Ex. 5.) NPL supervisors told Plaintiffs that if Plaintiffs continued to work for NPL and allowed money to be withheld from their paychecks to pay Creative Concepts, NPL would sponsor Plaintiffs in a program designed by Creative Concepts through which Plaintiffs would receive permanent legal resident status in the United States. (Opp'n, Ex. 1 at 2–3.)

Creative Concepts' plan was to have the employer, NPL, sponsor employees with immigration problems in a labor certificate program. (Opp'n, Ex. 13 at NPL–1434.) Creative Concepts presented its plan as having three phases. ( Id. at NPL–1435.) First, Creative Concepts would collect documents and information from the employees. ( Id.) Second, Creative Concepts would apply for a labor certificate from the Department of Labor for each employee. ( Id.) Finally, Creative Concepts would prepare all documents related to applying for adjustment of status. ( Id.) Creative Concepts estimated the entire process would take from sixteen to twenty-seven months. ( Id.) While this process was pending, Creative Concepts would provide employees with an “attorney ticket,” which included a letter of representation, a copy of the labor certificate, and proof that the labor certificate was in process. ( Id. at NPL–1437–38.)

In November 2002, Plaintiffs entered into contracts with Creative Concepts, and it was agreed amongst Plaintiffs, Creative Concepts, and NPL that $20 or more per week would be deducted from each Plaintiff's paycheck to pay Creative Concepts for the immigration-related services. (Opp'n, Ex. 1 at 4; MSJ, Ex. 2.) In September 2003, Plaintiffs' applications for the labor certificates were sent to the Department of Labor. (Opp'n, Ex. 1 at 5.) At that time, Defendant Paul Schelly (“Schelly”) represented to the Immigration and Naturalization Service that he was Plaintiffs' attorney and/or representative. ( Id.)

While still working for NPL, former NPL foreman Lorenzo Acosta (“Acosta”) heard NPL supervisor Cavin Donnell (“Donnell”) state that Plaintiffs never would obtain legal status and that the promises regarding adjustment of their status were deceptive. ( Id. at 5–6.) Accordingto Acosta, NPL made these deceptive promises to induce Plaintiffs to continue working for NPL for $12 per hour, which was lower than market wages, at a time when NPL needed workers. ( Id.) In 2004, Acosta was working for a different employer when Acosta offered Plaintiffs Ismael Amparan–Cobos (“Amparan–Cobos”) employment at a higher rate of $20 per hour. ( Id.) Amparan–Cobos declined the offer because he believed he had to continue working for NPL to acquire permanent resident status in the United States. ( Id. at 6.) Acosta told Amparan–Cobos what he had heard while employed at NPL. ( Id.) Amparan–Cobos confronted Donnell who denied the allegations and assured Amparan–Cobos that the process was legal and that Amparan–Cobos should continue to work for NPL. ( Id.) Amparan–Cobos experienced a similar incident with Andy Pressimone (“Pressimone”), who also left NPL and later sought to hire Amparan–Cobos at a higher rate. ( Id.) Pressimone likewise advised Amparan–Cobos that the immigration plan was a deceptive scheme to keep illegal immigrants working at NPL for low wages. ( Id.) Amparan–Cobos confronted Donnell, who again assured Amparan–Cobos that the plan was legitimate. ( Id.)

In 2005, the Department of Labor granted Plaintiffs' employment certifications. ( Id. at 5.) Creative Concepts then represented it would obtain lawful resident status for each Plaintiff. ( Id.) In October and November 2005, Plaintiffs, Creative Concepts, and NPL agreed that $25 or more would be deducted from Plaintiffs' paychecks to pay for Creative Concepts' continued immigration services. ( Id.; MSJ, Ex. 2.)

In October 2007, the United States Citizenship and Immigration Service (“USCIS”) advised Plaintiffs via Defendant Schelly that their applications for employment authorization were denied. (Opp'n, Ex. 1 at 6.) Plaintiffs contend this was the first time they discovered that the required forms for them to receive lawful permanent resident status and to apply for employment authorization had not been filed. ( Id.) Thereafter, NPL fired Plaintiffs due to their illegal status in the country. ( Id. at 7.) According to Amparan–Cobos, Donnell told Plaintiffs that the plan to provide them legal status was a sham aimed at obtaining needed workers at low wages. ( Id.)

After being terminated, Amparan–Cobos went to his union representative George Vaughn (“Vaughn”). ( Id. at 8.) Vaughn stated the union could not help Plaintiffs because the immigration plan was not part of a CBA and the union was not a party to the agreement between NPL, Creative Concepts, and Plaintiffs. ( Id.) Plaintiffs did not submit a grievance or otherwise pursue remedies under the CBA, they did not file an unfair labor practice charge against NPL, and they did not file a claim against the union for failure to represent them. (MSJ, Ex. 4 at 5.)

Plaintiffs originally brought suit in Nevada state court on December 4, 2009, alleging various state law claims against NPL, Creative Concepts, and the individuals behind Creative Concepts. (Notice of Removal (Doc. # 1) at ¶ 1.) Defendant NPL removed the action to this Court on December 8, 2010, on the basis of federal question jurisdiction. (Notice of Removal.) Plaintiffs moved to remand, contending no federal question jurisdiction exists in this action. NPL opposed, arguing Plaintiffs' claims are preempted under the Labor Management Relations Act (“LMRA”) and the National Labor Relations Act (“NLRA”). NPL also moved for judgment on the pleadings, arguing Plaintiffs' state law claims were preempted and, if converted to federal claims, must be dismissed because Plaintiffs failed to exhaust their remedies under the CBAs. Alternatively, NPL argues Plaintiffs' claims could be brought only before the National Labor Relations Board (“NLRB”).

This Court ruled that NPL had met its burden of establishing federal question jurisdiction, concluding that under controlling case law from the United States Court of Appeals for the Ninth Circuit, Plaintiffs' breach of contract claim was preempted under the LMRA. (Order (Doc. # 25) at 14–15.) However, the Court denied NPL's Motion for Judgment on the Pleadings due to the...