Phi v. Office & Prof. Employees Intern. Union

• Decision Date: 29 October 2007
• Docket Number: Civil Action No. 06-1469 (LEAD).,Civil Action No. 06-2243 (MEMBER).
• Citation: 624 F.Supp.2d 548
• Parties: PHI, INC. v. OFFICE & PROFESSIONAL EMPLOYEES INTERNATIONAL UNION and Office & Professional Employees International Union Local 108.
• Court: U.S. District Court — Western District of Louisiana

Page 548

624 F.Supp.2d 548

PHI, INC. v.OFFICE & PROFESSIONAL EMPLOYEES INTERNATIONAL UNION and Office & Professional Employees International Union Local 108.

Civil Action No. 06-1469 (LEAD).

Civil Action No. 06-2243 (MEMBER).

United States District Court, W.D. Louisiana, Lafayette Division.

October 29, 2007.

Hal J. Broussard, Broussard & Kay, Lafayette, LA, E. Scott Smith, Joshua L. Ellis, Fisher & Phillips, Atlanta, GA, for PHI, Inc.

Louis L. Robein, Jr., William Lurye, Julie M. Richard-Spencer, Robein Urann & Lurye, Metairie, LA, Melvin S. Schwarzwald, Timothy Gallagher, Schwarzwald & McNair, Cleveland, OH, for Office & Professional Employees International Union and Office & Professional Employees International Union Local 108.

MEMORANDUM RULING

REBECCA F. DOHERTY, District Judge.

Pending before this Court is PHI, Inc.'s ("PHI")Motion to Dismiss Count II of the Unions' Second Amended Counterclaim in the "Bad Faith Bargaining Case"¹[Doc. 86].The motion is opposed by the Office of Professional Employees International Union("OPEIU") and its Local Union 108 ("Local 108")(collectively, "the Unions")[Doc. 99].For the following reasons, PHI's motion is DENIED.

I.FACTUAL AND PROCEDURAL BACKGROUND

In March 2000, OPEIU was certified by the National Mediation Board("NMB") as the collective bargaining representative of the flight deck crewmembers ("pilots") employed by PHI.Shortly after the NMB certification, OPEIU entered into negotiations with PHI in an attempt to reach an initial collective bargaining agreement ("CBA"), As a result of these negotiations, a CBA was confected between PHI and the Unions on July 12, 2001, which was effective June 1, 2001 through May 31, 2004.

On or about February 19, 2004, negotiations between PHI and the Unions began in an effort to reach a successor CBA.After approximately 39 days of direct bargaining and more than 38 additional bargaining sessions mediated by the NMB, no successor CBA was reached.On July 28, 2006, the NMB issued a letter advising PHI and the Unions that as of 12:01 a.m. EDT on August 28, 2006, the parties would be free to engage in economic self-help.

On August 28, 2006, PHI filed suit in this court, seeking a declaratory judgment and permanent injunctive relief against the Unions under the Railway Labor Act,45 U.S.C. § 151, et seq.("RLA"), on grounds that the Unions violated Section 2, First of the RLA by bargaining in bad faith and failing to exert reasonable efforts to reach an agreement with the Company (the "Bad Faith Bargaining Case").PHI also seeks to enjoin the Unions from further bargaining in bad faith and require them, henceforth, to bargain in good faith with the intent of reaching an agreement.

On September 20, 2006, the Unions instituted a strike of PHI's pilots.On the same day, PHI sent several communications to its pilots in response to the strike, including the following:

• PHI's September 20, 2006 letter to the pilots advising them that they were being "permanently replaced" and that their "final paycheck including earnings due for bonuses, accrued vacation or earned time off" would be put in the mail within the next 24 hours.This letter also advised the pilots that all company benefits were being discontinued as of that date.²

• PHI's September 20, 2006 memorandum to all pilots advising the pilots of their alleged duty to report for work.This memorandum advised the striking pilots that "[p]ilot(s) not in contact with their supervisor and/or who do not provide an acceptable (non-strike related) reason for their absence, will, after three days, be considered to have abandoned their job/responsibilities."The memorandum also advised that pilots not in contact with their supervisors within the three-day time period would be discharged.³

• PHI's September 20, 2006 letter to the pilots attaching COBRA notices and advising the pilots of their right to elect to self-pay in order to continue their health insurance coverage previously provided by PHI.These notices advise the pilots that continuing coverage was being offered "[b]ecause of the above event [i.e., permanent replacement] that will end your coverage under the plan,...."⁴

• PHI's September 21, 2006 letter to each striking pilot, attaching a pay check and advising each pilot that "your employment status with PHI, Inc. has now been coded as `Permanently Replaced Due To Job Actions.'"The letter advised the pilots that "enclosed herein is your last pay check, including any bonuses and accrued vacation due you" and further stated that "your PHI benefits cease as of this date...."⁵

• PHI's September 25, 2006 letter to OPEIU international representative Paul Bohelski, in which PHI confirmed the contents of it September 20, 2006 memorandum that all pilots who fail to advise PHI of their job status faced discharge for job abandonment.⁶

On November 10, 2006, the Unions advised PHI that the pilots were ending the strike and making an unconditional offer to return to work.On November 27, 2006, the Unions filed a complaint for preliminary and permanent injunctive relief, declaratory judgment, damages, and other relief under the Railway Labor Act,45 U.S.C. § 151, et seq. and 28U.S.C. § 2201 against PHI (the "Return to Work Case").⁷In the "Return to Work Case," the Unions allege that PHI has ignored the unconditional return to work offer and/or placed illegal conditions on the offer, in violation of the RLA and La.Rev.Stat. § 23:822.The Unions seek a preliminary injunction directing PHI to immediately reinstate with full back pay and benefits those flight deck crew members ("pilots") employed by PHI and represented by the Unions who engaged in a protected work stoppage and made an unconditional offer to return to work at the conclusion of the work stoppage on November 10, 2006.

On April 17, 2007, the Unions filed a second amended answer to PHI's complaint in the "Bad Faith Bargaining Case," as well as a second amended counterclaim, wherein the Unions allege that PHI's "final paychecks" to the pilots deemed "permanently replaced" contain deductions not authorized by the pilots, in violation of La.Rev.Stat. § 23:631[Doc. 63].The Unions contend that amicable demand has been made by the Unions on behalf of the affected pilots, requesting that the deductions be rescinded and that the pilots be paid the full amounts due, but that PHI has refused to pay these amounts.PHI seeks liquidated damages for PHI's refusal to pay.

On May 29, 2007, PHI filed the instant motion to dismiss the Unions' wage deduction claim[Doc. 86].The Unions filed their opposition brief on July 3, 2007[Doc. 99].

II.LAW AND ANALYSIS

A.Procedural Posture

PHI's motion was filed as a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.⁸By the express language of the rule, however, a Rule 12(b)(6) motion"shall be made before pleading if a further pleading is permitted."Fed.R.Civ.P. 12(b)(6).In the instant matter, PHI filed its answer to the Unions' wage deduction claim on April 25, 2007[Doc. 66], and filed the instant motion to dismiss on May 29, 2007[Doc. 86].Therefore, PHI's motion to dismiss is untimely pursuant to Rule 12(b)(6).

In Jones v. Greninger,188 F.3d 322, 324(5th Cir.1999), the Fifth Circuit explained that an untimely-filed 12(b)(6)motion to dismiss should be treated as a motion for judgment on the pleadings pursuant to Rule 12(c), to wit:

Because a rule 12(b) motion must be filed before responsive pleadings, the appellees' motion was untimely.Rule 12(c) motions, however, may be filed after the pleadings are closed.Such motions will be treated as a motion for judgment on the pleadings based on a failure to state a claim on which relief may be granted.Thus, the district court did not err when it construed the defendants' motion as one for judgment on the pleadings.

Accordingly, PHI's12(b)(6) motion would ordinarily be treated as one for judgment on the pleadings pursuant to Rule 12(c).⁹Despite the foregoing, this Court is unable to treat the instant motion as a Rule 12(c) motion to dismiss, because the Unions state in their opposition brief that they rely on materials outside the pleadings in support of their arguments.Accordingly, the Unions urge this Court to consider the attached materials and consider the instant motion as a motion for summary judgment.

This Court has reviewed the documents attached by the Unions to their opposition brief and agrees that the documents are material to the issues before the Court.Accordingly, on October 9, 2007, this Court notified the parties that it intended to treat the instant motion to dismiss as a motion for summary judgment[Doc. 135].Isquith v. Middle South Utilities, Inc.,847 F.2d 186, 195(5th Cir.1988).See alsoClark v. Tarrant County, Texas,798 F.2d 736, 745(5th Cir.1986).¹⁰Considering the foregoing, the instant motion is hereby considered, and will be adjudicated as, a motion for summary judgment.

B.Summary Judgment Standard

"A party against whom a claim, counterclaim, or cross-claim is asserted or declaratory judgment is sought may, at any time, move with or without supporting affidavits for summary judgment in the parties favor as to all or any part thereof."Fed. R. Civ. Pro. 56(b).Summary judgement is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."Fed. R. Civ. Pro. 56(c).

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response by affidavits or is otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.If the adverse party does not so respond,...