Nat'l Ass'n of Gov't Emps., Inc. v. Nat'l Emergency Med. Servs. Ass'n, Inc.

• Decision Date: 23 August 2013
• Docket Number: Civil Action No. 13–10854–JLT.
• Parties: NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, INC., Plaintiff, v. NATIONAL EMERGENCY MEDICAL SERVICES ASSOCIATION, INC., and Torren K. Colcord, Defendant.
• Court: U.S. District Court — District of Massachusetts

969 F.Supp.2d 59

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, INC., Plaintiff,

v.NATIONAL EMERGENCY MEDICAL SERVICES ASSOCIATION, INC., and Torren K. Colcord, Defendant.

Civil Action No. 13–10854–JLT.

United States District Court,

D. Massachusetts.

Aug. 23, 2013.

Jean E. Zeiler, Richard L. Barry, Jr., National Association of Government Employees, Quincy, MA, Joshua B. Shiffrin, Tanaz Moghadam, W. Gary Kohlman, Bredhoff & Kaiser, P.L.L.C., Washington, DC, Charles J. Ogletree, for Plaintiff.

John P. Connelly, Hinckley, Allen & Snyder LLP, Boston, MA, for Defendants.

ORDER

TAURO, District Judge.

This court ACCEPTS and ADOPTS the July 16, 2013, Report and Recommendation [# 47] of Magistrate Judge Dien. For the reasons set forth in the Report and Recommendation, this court hereby orders that:

1. Plaintiff National Association of Government Employees, Inc.'s (“NAGE”) Motion to Strike Counterclaims [# 40] is ALLOWED. The court treats the verified counterclaim as an affidavit in support of Defendant's request for a preliminary injunction.

2. Defendant Colcord's Motion for a Preliminary Injunction [# 27] is DENIED.

3. Defendant National Emergency Medical Services Association, Inc.'s (“NEMSA”) Motion for a Preliminary Injunction [# 27] is ALLOWED. Pending the outcome of any requests for preliminary relief submitted in arbitration proceedings between NAGE and NEMSA, it is hereby ordered that (1) NAGE shall be restrained and enjoined from participating in any election(s) in which it would be seeking to replace NEMSA or otherwise challenge NEMSA's status as the representative for any existing employees or bargaining units; (2) NAGE shall withdraw all pending petitions to decertify NEMSA as the representative of any existing bargaining units; and (3) NAGE shall be restrained and enjoined from pursuing further efforts to decertify NEMSA as the representative of any existing bargaining units.

4. The court clarifies that the facts that form the basis of the preliminary injunction are not in dispute. Accordingly, an evidentiary hearing is not necessary. In pages nineteen through twenty of its objections, NAGE claims that four facts are in dispute. None of the facts described in these two pages forms the basis of this court's order. Even if this court were to accept NAGE's version of these facts as true, an injunction would still be appropriate in this case.¹

5. NEMSA must now post a bond pursuant to § 107 of the Norris–LaGuardia Act, 28 U.S.C. §§ 101–115. This court refers the determination of the proper bond to Magistrate Judge Dein.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION FOR PRELIMINARY INJUNCTION AND PLAINTIFF'S MOTION TO STRIKE COUNTERCLAIMS

DEIN, United States Magistrate Judge.

I. INTRODUCTION

This is a dispute between two labor unions, the plaintiff, National Association of Government Employees, Inc. (“NAGE”), and the defendant, National Emergency Medical Services Association, Inc. (“NEMSA”), and its Executive Director Terrence Colcord (“Colcord”). On April 30, 2012, NAGE and NEMSA entered into Affiliation and Servicing Agreements pursuant to which, inter alia, NEMSA was to become an affiliate of NAGE and NAGE agreed not to seek to replace NEMSA as the collective bargaining representative of various bargaining units (“anti-raiding provisions”). On the same day, NAGE entered into an employment agreement with Colcord pursuant to which Colcord was to be paid to obtain members for the affiliated entity. The Affiliation and Servicing Agreements have arbitration clauses requiring that all disputes be resolved through mediation and/or arbitration.

NAGE claims that NEMSA breached a material term of its Agreements by failing to make all the payments due under the Agreements, which NEMSA denies. ¹ NAGE claims further that this material breach relieved it of all obligations under the Agreements, including its agreement to seek arbitration. Therefore, on April 5, 2013, NAGE unilaterally terminated the Agreements and promptly moved to decertify NEMSA as the representative of various bargaining units. NAGE commenced the instant action on April 11, 2013, seeking damages for the defendants' alleged breach of contract and a declaration that it had the right to terminate the Agreements. NAGE also filed a motion for a trustee process attachment seeking to attach dues paid to NEMSA by American Medical Response. After hearing, this court denied the motion for trustee process attachment. (Docket No. 44).

NEMSA and Colcord responded to NAGE's Complaint with a “Motion to Dismiss or, in the Alternative, Motion for Stay and Order Compelling Arbitration.” (Docket No. 13). The defendants subsequently withdrew their request that the litigation be dismissed. The request for a stay is under advisement.

On June 14, 2013, NEMSA and Colcord filed a motion for a preliminary injunction “to prevent NAGE from raiding NEMSA's union members contrary to an Affiliation Agreement between NEMSA and NAGE, and contrary to an employment agreement between Colcord and NAGE, and to preserve the disputes for arbitration as the parties agreed.” (Docket No. 27). The motion is supported by a memorandum (Docket No. 28) and “Verified Counterclaims for Preliminary Injunction to Preserve Jurisdiction of Labor Arbitration by Defendants/Plaintiffs–in–Counterclaim.” (Docket No. 26). NAGE has moved to strike the counterclaims (Docket No. 40) and has also opposed the request for a preliminary injunction. ( See Docket No. 43).

For the reasons detailed herein, this court recommends to the District Judge to whom this matter is assigned that NAGE's motion to strike the counterclaims be allowed as they are not filed as part of an answer, but that the court accept the verified counterclaims as a filing in support of the motion for preliminary injunction and address the merits of the defendants' request for a preliminary injunction. This court further recommends that Colcord's motion for a preliminary injunction be denied as he has not suffered irreparable harm by the termination of his employment agreement. While recognizing that the court's authority to issue an injunction is very restricted in labor disputes, this court recommends that NEMSA's motion for a preliminary injunction be allowed, but only to the extent necessary to enforce the parties' agreement to arbitrate their disputes under the Affiliation Agreement and the Servicing Agreement. Accordingly, this court recommends to the District Judge to whom this case is assigned that the court enter the following order:

Pending the outcome of any requests for preliminary relief submitted in arbitration proceedings between the National Association of Government Employees, Inc. (“NAGE”) and the National Emergency Medical Services Association, Inc. (“NEMSA”), it is hereby ORDERED that (1) NAGE shall be restrained and enjoined from participating in any election(s) in which it would be seeking to replace NEMSA or otherwise challenge NEMSA's status as the representative for any existing employees or bargaining units; (2) NAGE shall withdraw all pending petitions to decertify NEMSA as the representative of any existing bargaining units; and (3) NAGE shall be restrained and enjoined from pursuing further efforts to decertify NEMSA as the representative of any existing bargaining units.

II. STATEMENT OF FACTS

On April 30, 2012, NAGE and NEMSA entered into Affiliation and Servicing Agreements, which, by their terms, were to “remain in effect until and unless [they are] amended or terminated by mutual agreement of the parties hereto.” (Affiliation Agreement (Docket No. 3–2) Art. IX:C; see also Servicing Agreement (Docket No. 3–3) at 3 ¶ 8 (this Agreement “shall remain in effect unless and until amended or terminated by mutual consent of the parties”)). Pursuant to the Affiliation Agreement, members of NEMSA were to become members of NAGE “with all ensuing rights and privileges,” and NAGE was to make “available to NEMSA all of the services provided to other affiliates and locals of NAGE/SEIU Local 5000.” ( See Complaint (Docket No. 1) ¶ 10). In return, the Affiliation Agreement requires NEMSA to pay NAGE 10% of the dues and fees collected from each bargaining unit it represents. ( Id. ¶ 11). The Servicing Agreement provides that NAGE will provide representational services to NEMSA, including, without limitation, negotiating, administering and enforcing collective bargaining agreements. ( See id. ¶ 13). In return, NEMSA was to pay NAGE 85% of the total dues and fees collected by NEMSA from each bargaining unit it represented. ( Id. ¶ 14). Finally, on April 30, 2012, NAGE entered into a contract with Colcord for “Employment/Consulting Services” (Docket No. 1–4) pursuant to which Colcord became an employee of NAGE responsible for recruiting new employees to choose NAGE as their bargaining representative. (Compl. ¶ 19). In addition to his salary, Concord was to be paid $50 for each new member he obtained. ( See Employment Agreement ¶ 5).

Of particular relevance to the instant dispute, pursuant to the NAGE and NEMSA Agreements, NAGE agreed to support NEMSA and not to challenge NEMSA's status as the bargaining agent for the employees and bargaining units NEMSA represented. NAGE further agreed to resolve all “[d]isputes between the parties concerning any aspect of this Agreement and its performance” through negotiation and, if that failed, mediation or arbitration. (Servicing Agreement at 2 ¶ 8). NAGE went so far as to agree that these would be “the only means of settlement of disputes concerning the interpretation, application and enforcement of the terms of [these Agreements].” (Affiliation Agreement Art. VII).

Disputes arose between the parties: NAGE claims that NEMSA was not paying the amounts due under the Agreements and NEMSA contends that NAGE was not providing the agreed-upon services. On April 5, 2013, NAGE sent NEMSA a letter, which was received on April 8, 2013, purporting to unilaterally terminate...