Free Motion for Summary Judgment - District Court of California - California

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FOLEY & LARDNER LLP ONE MARITIME PLAZA, SIXTH FLOOR SAN FRANCISCO, CA 94111-3409 TELEPHONE: 415.434.4484 FACSIMILE: 415.434.4507 LAURENCE R. ARNOLD, CA BAR NO. 133715 [email protected] EILEEN R. RIDLEY, CA BAR NO. 151735 [email protected] SCOTT P. INCIARDI, CA BAR NO. 228814 [email protected] Attorneys for Respondents And Counter-Petitioners Stanford Hospital & Clinics and Lucile Packard Children's Hospital

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

SERVICE EMPLOYEES 13 INTERNATIONAL UNION, LOCAL 715, Petitioner And Counter14 Respondent,
15 16

Case No: 5:08-CV-0213 JF STANFORD HOSPITAL AND CLINICS' AND LUCILE PACKARD CHILDREN'S HOSPITAL'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF CLAIMS OR DEFENSES [FED. R. CIV. P. 56]
Date: Time: Dept: August 29, 2008 9:00 A.M. Ctrm. 3, 5th Floor

vs.

STANFORD HOSPITAL AND CLINICS 17 AND LUCILE PACKARD CHILDREN'S HOSPITAL,
18 19 20 21 22 23 24 25 26 27 28

Respondents And CounterPetitioners.

Judge:

Hon. Jeremy Fogel

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1 2 3 4 5 6 7 8 9 (2) 10 11 12 13 14 15 16 (7) 17 18 19 20 (10) 21 22 23 24 25 26 27 28 III. D. E. C. (8) (9) (4) (5) (6) (3) I. II.

TABLE OF CONTENTS Page INTRODUCTION AND SUMMARY OF THE ARGUMENT ........................................ 1 STATEMENT OF FACTS ................................................................................................. 2 A. B. The Certification And Collective Bargaining Agreement ...................................... 2 Beginning In Early 2006, The Hospitals Were Presented With Increasing Evidence That Local 715 Had Ceased To Exist And/Or Had Transferred Its Representative Duties To UHW ........................................................................ 3 (1) In Late February, 2006 Local 715 Enters Into A "Servicing Agreement" With UHW ............................................................................. 4 In March, 2006, UHW Begins Carrying Out Representational Functions Formerly Performed By Local 715 ............................................ 4 Between March and May, 2006, UHW Employees Continue To Carry Out Local 715's Functions, And Evidence Surfaces That Local 715 Was Defunct .............................................................................. 4 The Hospitals Refuse To Deal With UHW Employees.............................. 5 SEIU Implements A Plan To Reorganize SEIU Locals.............................. 6 The Hospitals Conclude That The Servicing Agreement Is Not Legitimate. .................................................................................................. 6 In Early 2007, Local 715 Prepares To Disband Itself And Its Representatives Confirm That It Has Ceased To Exist .............................. 6 The Hospitals Cease Remitting Dues To "Local 715" ............................... 8 In June, 2007, "Local 715" Is Purportedly Placed Under Trusteeship, And The Trustee Appoints New Counsel .............................. 8 Weinberg Attorneys Continue To Act On Behalf Of "Local 715", But Refuse To Clarify Their Representative Capacity ............................... 9

The Hospitals Refuse To Arbitrate The Acosta Grievance Absent Clarification Of The Nature Of The Weinberg Firm's Representation Of "Local 715"........................................................................................................... 10 The Arbitrator's Decision ..................................................................................... 11 The Petition And Counter-Petition ....................................................................... 11

DISCUSSION ................................................................................................................... 12 A. Legal Standards Applicable To Summary Judgment Motions ............................. 12 -iSTANFORD AND LPCH'S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION CASE NO: 5:08-CV-0213 JF

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B.

The Hospitals Were Not Required To Arbitrate The Acosta Grievance, And The Award Cannot Be Enforced, Because "Local 715" Has Effectively Ceased To Exist.................................................................................. 12 (1) (2) SEIU Adopted And Implemented A Plan That Expressly Called For The Dismemberment And Dissolution Of Local 715 ........................ 13 The Bulk Of Local 715's Former Membership And Functions Were Merged Into Local 521.................................................................... 14 Local 715's Private Hospital Members And Functions Were Transferred To UHW................................................................................ 14 a) Local 715 Assigned Its Representational Functions To UHW............................................................................................. 14 UHW Began Receiving Dues Deducted From Bargaining Unit Members Paychecks....................................... 15 Bargaining Unit Employees Were Asked To Agree To Change Their Union Affiliation To UHW ................................ 15 President Stern Ordered The "Reorganization" Of Local 715 Into UHW, And Chief Shop Steward Robert Rutledge Admitted That Local 715 Had Ceased To Exist.............................................................................................. 15 "Local 715" Is Represented By UHW's Legal Counsel........... 16 UHW Claims To Represent The Bargaining Unit ................... 16

5 6 7 8 9 10 (3)

b) c)

11 12 13 14 e) 15 f) 16 (4) 17 18 C. 19 20 21 22 23 (2) 24 25 26 (4) 27 28 (5) (3) D. d)

As Local 715 Has Effectively Ceased To Exist, The Hospitals Had No Obligation To Arbitrate The Acosta Grievance, And It Cannot Be Enforced Against Them....................................................................... 17

Whether Or Not Local 715 Continues To Exist, The Hospitals Are Not Required To Participate In Grievance And/Or Arbitration Proceedings With Representatives Of UHW Because UHW Is Not The Certified Representative And The Servicing Agreement Is Not Valid................................ 17 The Arbitrator's Award Was Invalid And Should Be Vacated ............................ 19 (1) "Local 715" Failed To Respond To The Hospitals' CounterPetition ...................................................................................................... 19 The Arbitrator Decided Issues That Were Not Arbitrable Under The CBA ................................................................................................... 19 The Award Exceeded The Issues That Were Submitted For Decision .................................................................................................... 20 The Award Failed To Draw Its Essence From The CBA And Did Not Represent A Plausible Interpretation Of The CBA............................ 21 The Award Conflicts With The Certification ........................................... 23 -ii-

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E.

If The Court Decides That These Cases Present A Representational Issue On Which It Should Not Rule, It Should Issue A Stay......................................... 24

CONCLUSION................................................................................................................. 25

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TABLE OF AUTHORITIES Page FEDERAL CASES A. Dariano & Sons, Inc. v. District Council Of Painters No. 33, 869 F.2d 514 (9th Cir. 1989) ...................................................................................................24 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).................................................................................................................12 AT&T Technologies, Inc. v. Communications Workers Of America, 475 U.S. 643 (1986).................................................................................................................20 Brooks v. National Labor Relations Board, 348 U.S. 96 (1954)...................................................................................................................12 California Pacific Medical Center v. Service Employees International Union, United Healthcare Workers ­ West, No. C 06 4685 SC, 2007 WL 81906 (N.D.Cal. 2007).............................................................21 Carpenters' Local Union No. 1478 v. Stevens, 743 F.2d 1271 (9th Cir. 1984) .................................................................................................24 Celotex Corporation v. Catrett, 477 U.S. 317 (1986).................................................................................................................12 District Council Of Ironworkers v. Swinerton & Walberg, Inc., 752 F.Supp. 344 (1990) ...........................................................................................................24 Doyle v. Raley's Incorporated, 158 F.3d 1012 (9th Cir. 1998) .................................................................................................20 Edward Hines Lumber Company v. Lumber And Sawmill Workers Local No. 2588, 764 F.2d 631 (1985)........................................................................................................... 21-22 Goad Company, 333 NLRB 677 (2001) .............................................................................................................18 Hotel Employees, Restaurant Employees Union, Local 2 v. Marriott Corporation, 961 F.2d 1464 (9th Cir. 1992) .................................................................................................24 International Brotherhood Of Boilermakers, Iron Ship Builders, Black-Smiths, Forgers And Helpers, AFL-CIO v. Local Lodge D354, 897 F.2d 1400 (7th Cir. 1990) .................................................................................................13 Local No 3-193 International Wood-Workers Of America v. Ketchikan Pulp Company, 611 F.2d 1295 (1980)...............................................................................................................24 -ivSTANFORD AND LPCH'S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION CASE NO: 5:08-CV-0213 JF

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Lorber Industries Of California v. Los Angles Printworks Corporation, 803 F.2d 523 (9th Cir. 1986) ...................................................................................................13 Major League Baseball Players Association v. Garvey, 532 U.S. 504 (2001).................................................................................................................22 Matushita Electric Industrial Company v. Zenith Radio Corporation, 475 U.S. 574 (1985).................................................................................................................12 Medo Photo Supply Corporation v. National Labor Relations Board, 321 U.S. 678 (1944).................................................................................................................12 Moruzzi v. Dynamics Corporation Of America, 443 F.Supp. 332 (S.D.N.Y. 1977) .....................................................................................13, 24 Nevada Security Innovations, Ltd., 341 NLRB 953 (2004) .............................................................................................................12 Pacific Motor Trucking Company v. Automotive Machinists Union, 702 F.2d 176 (9th Cir. 1983) ...................................................................................................22 Phoenix Newspapers, Inc. v. Phoenix Mailers Union 752, 989 F.2d 1077 (9th Cir. 1993) .................................................................................................20 Pioneer Inn Associates v. National Labor Relations Board, 578 F.2d 835 (9th Cir. 1978) ...................................................................................................12 Sherwood Ford, Inc, 188 NLRB 131 (1971) .............................................................................................................19 Sprewell v. Golden State Warriors, 266 F.3d 979 (9th Cir. 2001) ...................................................................................................21 Stead Motors Of Walnut Creek v. Automotive Machinists Lodge No. 1173, 886 F.2d 1200 (9th Cir. 1989) .................................................................................................22 United Steelworkers Of America v. Enterprise Wheel And Car Corporation ("Enterprise Wheel"), 363 U.S. 593 (1960).............................................................................21

FEDERAL: STATUTES, RULES, REGULATIONS, CONSTITUTIONAL PROVISIONS 29 U.S.C., Section 160(b)..........................................................................................................................21 Section 185 (Labor Management Relations Act, Section 301)................................................24 Federal Rules of Civil Procedure, Rule 12(a)(1)(B).......................................................................................................................19 -vSTANFORD AND LPCH'S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION CASE NO: 5:08-CV-0213 JF

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Rule 56 .....................................................................................................................................12 Rule 56(c).................................................................................................................................12

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NOTICE OF MOTION AND MOTION TO THE PETITIONER AND COUNTER-RESPONDENT AND ITS ATTORNEYS OF RECORD: NOTICE IS HEREBY GIVEN that on August 29, 2008 at 9:00 AM, or as soon thereafter as counsel may be heard by the above-entitled Court, located at 280 South 1st Street, San Jose, CA 95113, 5th Floor, Courtroom 3, Respondents and Counter-Petitioners Stanford Hospital & Clinics and Lucile Packard Children's Hospital (the "Hospitals") will and hereby do move the Court for summary judgment or, in the alternative, summary adjudication of claims or defenses pursuant to Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 56 (the "Motion"). By this Motion, the Hospitals seek an order by this Court denying the Petition of Service Employees International Union, Local 715 ("Local 715"), granting the Hospitals' CounterPetition, and holding that the Hospitals are entitled to judgment as a matter of law on the grounds that the Hospitals cannot be compelled to arbitrate the matter at issue, or to obey any award issued with respect to such matter, because Local 715 has ceased to exist or, in the alternative, that the entity or persons who have sought to arbitrate with the Hospitals are not Local 715 and therefore lack standing to require the Hospitals to arbitrate. The Hospitals further seek an order declaring Arbitrator Angelo's November 30, 2007 award invalid. This Motion is based upon this notice of motion and motion, the accompanying memorandum of points and authorities, the declarations of Laurie J. Quintel, Laurence R. Arnold, and Scott P. Inciardi, all pleadings and papers on file in this action and upon such other matters as may be presented to the Court at the time of the hearing. MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION AND SUMMARY OF THE ARGUMENT This action concerns the issue of whether the respondents and counter-petitioners, Stanford Hospital & Clinics and Lucile Packard Children's Hospital (the "Hospitals") were required to participate in arbitration with the petitioner, Service Employees International Union, Local 715 ("Local 715") pursuant to a collective bargaining agreement (the "CBA"). In April, 2007, Local 715 demanded that the Hospitals arbitrate a grievance involving a former Hospital 1
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employee named Victor Acosta (the "Acosta Grievance"). The Hospitals did not dispute that the grievance was substantively arbitrable. However, in the months prior to the demand for arbitration, the Hospitals had become aware of evidence that, as of approximately March 1, 2007, Local 715 had ceased to exist as a result of a plan by Service Employees International Union ("SEIU" or the "International") to reorganize California local unions. The Hospitals further came to believe that the attorneys who were seeking to arbitrate the Acosta Grievance, although they claimed to represent "Local 715", were actually retained by another SEIU local known as "UHW." Accordingly, the Hospitals refused to arbitrate the grievance. Arbitrator Angelo, however, completely ignoring the boundaries of his authority, which he had previously acknowledged, issued an award finding that the Hospitals violated the CBA. The Arbitrator's award, as a matter of law, cannot be enforced, and should be vacated. II. STATEMENT OF FACTS The following facts are material to the issues in this case and Motion and cannot be genuinely disputed. A. The Certification And Collective Bargaining Agreement

In 1998, after a National Labor Relations Board (the "Board")-conducted election, the Board issued an order certifying "Local 715, Service Employees International Union, AFL-CIO" as the "exclusive collective bargaining representative" of a unit of Hospital employees described in the order (the "Certification")1. [Declaration of Laurence R. Arnold In Support Of Motions ("Arnold Decl.") ¶ 2-3 & Exh. A.] Pursuant to the Certification, the Hospitals recognized Local 715 as the exclusive bargaining representative and subsequently negotiated a series of collective bargaining agreements. [Arnold Decl. ¶ 4.] The current collective bargaining agreement (the "CBA") became effective on January 20, 2006, and is scheduled to expire on November 4, 2008. [Id.] Article 1.1 of the CBA states that the CBA "is made and entered into between Stanford Hospital and Clinics (SHC) and Lucile Packard Children's Hospital (LPCH) . . . and the Service Employees International Union, Local 715, AFL-CIO, CLC (hereinafter referred to as
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Acosta was an employee within the relevant unit. 2
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"Union")." [Arnold Decl. ¶ 4-6 & Exh. B.] Article 1.3.1 of the CBA contains a "Recognition Clause," which states that, pursuant to the Board's Certification, "the Employer recognizes the Union, as the sole and exclusive representative for the purpose of collective bargaining" with respect to Bargaining Unit employees. [Id.] Article 26 of the CBA contains a grievance and arbitration procedure through which alleged violations of the CBA may be challenged. [Arnold Decl. Exh. B.] Article 26.2.1 of the CBA states that "The Union" (i.e. Local 715) "will have the right to present grievances under this procedure on behalf of an individual employee, on behalf of a group of employees, or on behalf of itself as a Union grievance." [Id.] Article 26.2.3.e provides that "only the Union" (Local 715) "may appeal a grievance to arbitration." [Id.] Article 26.7.8 states that arbitration proceedings "will be closed unless the parties mutually agree otherwise in advance and in writing." [Id.] Article 26 places limits on the power of the arbitrator to decide disputes under the CBA. Specifically, Article 26.7.3 of the Agreement provides that, "[t]he arbitrator's authority will be limited to interpreting the specific provisions of this Agreement and will have no power to add to, subtract from, or to change any part of the terms or conditions of this Agreement." [Id.] Article 26.7.10 further provides that "[t]he arbitrator's authority will be limited to determining whether the Employer has violated the provision(s) of this Agreement. The arbitrator will not have jurisdiction or authority to add to, amend, modify, nullify, or ignore in any way the provisions of this Agreement, and will not make any award that would, in effect, grant the Union or the employee(s) any matters that were not obtained in the negotiation process." [Id.] B. Beginning In Early 2006, The Hospitals Were Presented With Increasing Evidence That Local 715 Had Ceased To Exist And/Or Had Transferred Its Representative Duties To UHW Beginning in early 2006, Local 715 underwent changes that, as of at least March, 2007, effectively extinguished it as an ongoing operation. These events were made known to the Hospitals in a piecemeal fashion, eventually causing the Hospitals to conclude that Local 715 3
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had ceased to exist, and improperly had attempted to transfer its bargaining rights to UHW.2 (1) In Late February, 2006 Local 715 Enters Into A "Servicing Agreement" With UHW Between February 18 and February 20, 2006, shortly after the CBA became effective, Sal Roselli, the President of UHW, and Kristy Sermersheim, the Executive Secretary of Local 715, executed a three (3) page document titled "Servicing Agreement" (the "Servicing Agreement"). [Arnold Decl. ¶ 36 & Exh. CC; Declaration of Scott P. Inciardi In Support Of Motions ("Inciardi Decl.) Exh. EE.] The Servicing Agreement provided that UHW would provide certain enumerated "professional services" to Local 715 at no cost. [Id.] By its terms, the Servicing Agreement was to be effective as of March 1, 2006. [Id.] The Servicing Agreement called for Local 715 to resume direct representation of the Bargaining Unit and for Local 715 and UHW to seek enforcement of the Servicing Agreement in the event the Hospitals rejected it. [Id.] (2) In March, 2006, UHW Begins Carrying Out Representational Functions Formerly Performed By Local 715 On February 28, 2006, Greg Pullman, Local 715's Staff Director, informed Laurie Quintel, the Hospitals' Director of Employee/Labor Relations, that she should work with a UHW employee named Ella Hereth in connection with the settlement of grievances and unfair labor practice charges. [Quintel Decl. ¶ 9.] Around the same time, another UHW employee told Ms. Quintel that UHW would be taking over representation for the Hospitals. [Quintel Decl. ¶ 10.] (3) Between March and May, 2006, UHW Employees Continue To Carry Out Local 715's Functions, And Evidence Surfaces That Local 715 Was Defunct Between March and May, 2006, the functions that had formerly been carried out by Local 715 personnel were carried out exclusively by UHW employees. UHW employees began

The facts pertaining to the continued existence of Local 715 outlined below are discussed in greater detail in the Hospitals' motions for summary judgment in Case Nos. 5:08-CV-00216 JF, 5:08-CV-01726 JF, and 5:08-CV-01727 JF, which are being filed concurrently in those cases and are incorporated herein by this reference. 4
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submitting all grievances on UHW letterhead. [Quintel Decl. ¶ 15 & Exh. D.] The Hospitals were instructed to direct all correspondence to UHW employees. [Quintel Decl. ¶ 14 & Exh. C.] At the same time, the UHW employees appointed to "service" the Hospitals denied that they worked for Local 715. [Quintel Decl. ¶ 20 & Exh. H.] Mr. Pullman confirmed that UHW employees were "handling all representation matters for SEIU Local 715." [Quintel Decl. ¶ 20 & Exh. H (emphasis supplied).] Between March and May, 2006, the Hospitals also received communications from the law firm Weinberg Roger & Rosenfeld (the "Weinberg Firm" or "Weinberg"), which had historically acted as Local 715's attorneys suggesting that Local 715 was no longer acting as the bargaining representative. On or around March 28, 2006, W. Daniel Boone of the Weinberg Firm wrote a letter to Laurence R. Arnold, an attorney with the law firm of Foley & Lardner LLP, which represents the Hospitals, regarding a pending grievance. In the subject line of his letter, Mr. Boone referred to "United Healthcare Workers ­ West (formerly SEIU, Local 715)."3 [Arnold Decl. ¶ 26 & Exh. S.] In early April, 2006, Ms. Quintel received a telephone call from Phyllis Willett, who identified herself as an employee of UHW and stated that when the Hospitals remitted union dues, they needed to provide the social security numbers of the relevant employees to help UHW identify them. [Quintel Decl. ¶ 16.] Ms. Quintel received a similar request from William A. Sokol of the Weinberg Firm "on behalf of SEIU United Healthcare Workers West." [Quintel Decl. ¶ 17 & Exh. E.] (4) The Hospitals Refuse To Deal With UHW Employees

In May and June, 2006, due to the mounting evidence that UHW was actually assuming all of Local 715's former functions, the Hospitals made clear that they did not consent to any transfer of bargaining rights from Local 715 to UHW, and that the Hospitals would not deal with employees of UHW. [Quintel Decl. ¶ 19 & Exh. G.] In June, 2006, Hospitals also requested
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When questioned about this reference, Mr. Boone wrote a letter stating that it was in error. However, the subject line of that letter continued the use of the reference. [Arnold Decl. ¶ 25-28 & Exh. R-W.] 5
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information from Local 715 regarding the organization's current status and the role of UHW, given the indications that Local 715 had abandoned, or was abandoning, its status as certified representative. [Arnold Decl. ¶ 32 & Exh. Z.] (5) SEIU Implements A Plan To Reorganize SEIU Locals

On June 9, 2006, SEIU issued a document titled "Hearing Officers' Joint Report And Recommendations" (the "Joint Report"). The Joint Report outlined a plan to reorganize various SEIU Locals (the "SEIU Reorganization Plan"). As a part of the plan, the bulk of Local 715's membership and operations were to be absorbed into a new local, eventually designated Service Employees International Union, Local 521 ("Local 521"). [Inciardi Decl. Exh. T p. 40.] The plan also called for UHW to take over the representation of Private Hospitals, including the Hospitals, formerly represented by Local 715. [Inciardi Decl. Exh. T p. 65.] The SEIU Reorganization Plan was approved and adopted by SEIU on June 11, 2006. [Quintel Decl. ¶ 23 & Exh. K at p. 4.] (6) The Hospitals Conclude That The Servicing Agreement Is Not Legitimate. In mid-August, the Hospitals requested and received copies of the Servicing Agreement. [Quintel Decl. ¶ 24-25 & Exh. L; Arnold Decl. ¶ 35-38 & Exh. BB-EE.] Upon review, it was apparent that the document did not fully or accurately describe the relationship between Local 715 and UHW, given the evidence that UHW had assumed all of Local 715's representational functions. Accordingly, in a letter dated August 29, 2006 addressed to Ms. Sermersheim, Mr. Arnold stated that the Hospitals did not recognize the Servicing Agreement, and would not deal with employees of UHW acting pursuant to it. [Arnold Decl. ¶ 38 & Exh. EE.] (7) In Early 2007, Local 715 Prepares To Disband Itself And Its Representatives Confirm That It Has Ceased To Exist On January 2, 2007, International President Stern issued an "Order Of Reorganization" to various SEIU locals, including Local 715, which instructed that Local 715 be "reorganized" into Local 521 and UHW as soon as practicable. [Inciardi Decl. Exh. U.] On January 31, 2007, Robert W. Rutledge, Chief Steward for the Bargaining Unit, stated in an e-mail that, "SEIU 715 6
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no longer exists and a service agreement between the former 715 and UHW has been in place since March first of 2006." [Quintel Decl. ¶ 28 & Exh. O.] At a meeting with Ms. Quintel on or around February 2, 2007, Mr. Rutledge repeated his assertion that Local 715 no longer existed. He also stated that Local 715 no longer represented employees at the Hospitals, and that they were now represented by UHW. [Quintel Decl. ¶ 29.] Local 715 maintained a website located at http://www.SEIU715.org (the "Local 715 Website"). Beginning in late January, 2007, Laurie Quintel began to monitor the Local 715 Website. She discovered that the website now contained a prominent statement that "We are in the process of transitioning to our new local 521. This web site will be taken down on Feb. 28. On March 1, our new Local's web site www.seiu521.org will have your chapter pages and other information." [Quintel Decl. ¶ 30 & Exh. P.] On March 1, 2007, Ms. Quintel discovered that when she attempted to access the Local 715 Website, she was now automatically redirected to the website of Local 521 at http://www.SEIU521.org (the "Local 521 Website"). [Quintel Decl. ¶ 32.] In exploring the Local 521 Website, Ms. Quintel discovered a page containing a statement that five local unions, including Local 715 "have come together . . . by forming one larger, more powerful local." [Quintel Decl. ¶ 32 & Exh. R.] Another page referenced benefits available to "former SEIU Local 715 members." [Id.] On March 5, Ms. Quintel discovered the following statement on the Local 521 Website: "Five locals (415, 535, 700, 715, and 817) have come together to cover the North Central region by forming one larger, more powerful local. On January 2, 2007, our new local received its charter. On March 1, 2007, the resources of all five locals were transferred to Local 521." [Quintel Decl. ¶ 40 & Exh. X.] When Ms. Quintel used the Local 521 Website's search feature to find the Hospitals, her search returned no results. [Quintel Decl. Exh. X.] However, when, on March 2, 2007, she performed a similar search on the UHW Website (http://SEIU-UHW.org), "Stanford University Medical Center" was listed as a facility represented by UHW.4 [Quintel Decl. ¶ 34 & Exh. S.]
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UHW has continued to assert on its website that it represents the Hospitals since that time, as screenshots from its website taken in March, 2008 reveal. [Inciardi Decl. ¶ 29-30 & Exh. C217
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5

(8)

The Hospitals Cease Remitting Dues To "Local 715"

It was now clear to the Hospitals that, at least as of March 1, 2007, Local 715 had ceased to exist. Yet, under the CBA, the Hospitals were obligated to deduct union dues from Bargaining Unit employees' paychecks and remit them to Local 715. The Hospitals determined that they could no longer remit dues to "Local 715" now that the organization apparently was no more and its former representatives refused to demonstrate otherwise. [Quintel Decl. ¶ 36-37.] Accordingly, on March 2, 2007, Ms. Quintel sent a letter to Ms. Sermersheim stating that, after the remittance of the dues for February, 2007, the Hospitals would no longer remit dues to "Local 715" absent clarification of its status and the identity of the organization that would be receiving the dues.5 [Quintel Decl. ¶ 36 & Exh. U.] The requested information was not provided, and after March 1, 2007, the Hospitals ceased remitting dues. [Quintel Decl. ¶ 37.] (9) In June, 2007, "Local 715" Is Purportedly Placed Under Trusteeship, And The Trustee Appoints New Counsel On June 8, 2007, President Stern issued an "Order Of Emergency Trusteeship." [Inciardi Decl. Exh. Z.] That order stated that SEIU was placing Local 715 under trusteeship, removing its officers, and appointing Bruce W. ("Rusty") Smith as trustee. The order confirmed that the SEIU's reorganization plan remained in place. [Id.] Mr. Smith sent a letter to Ms. Quintel on June 14, 2007 informing her of the trusteeship, that the Servicing Agreement would "remain in full force and effect," and that UHW employees would continue to "service" the Hospitals. [Quintel Decl. ¶ 48 & Exh. FF.]

In fact, evidence later came to light that Local 521 was the actual recipient of the dues being remitted to Local 715. A document posted on the Local 521 Website titled "Dues Receipts of the year of 2007" showed that, in September, 2007, Local 521 received a payment of dues totaling $21,949 from an account designated "USW Hospitals" ("USW" being a commonly used acronym for "United Stanford Workers," the name given to the chapter of Local 715 that had been assigned to the SHC/LPCH Bargaining Unit). [Arnold Decl. ¶ 57 & Exh. WW.] This was the exact amount (rounded to the dollar) of the Hospitals' last dues remittance to "Local 715" for February, 2007, which was $21,949.35. [Quintel Decl. ¶ 38 & Exh. V.] Additionally, given UHW's requests for identifying information for Hospital employees in early 2006, it appeared that the ultimate recipient of the dues sent to "Local 715" could be UHW. 8
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Around June 18, 2007, Mr. Arnold learned that Barbara J. Chisholm of the law firm Altshuler Berzon LLP (the "Altshuler Firm") was now representing "Local 715". Mr. Arnold confirmed this in a conversation with Ms. Chisholm followed by a confirming letter. [Arnold Decl. ¶ 40 & Exh. FF.] (10) Weinberg Attorneys Continue To Act On Behalf Of "Local 715", But Refuse To Clarify Their Representative Capacity To date, the Hospitals have not received any notification that the Altshuler Firm no longer represents "Local 715." Nevertheless, the Hospitals continued to receive correspondence from Weinberg Firm attorneys purporting to act on "Local 715's" behalf in grievance and arbitration matters. [Arnold Decl. ¶ 49; 55 & 65 & Exh. UU & EE.] Weinberg Firm attorneys also appeared in each arbitration hearing that was held after the appointment of the Altshuler Firm as counsel. [Arnold Decl. ¶ 46 & 49 & Exh. LL.] The Hospitals were aware that the Weinberg Firm has historically acted as counsel to UHW and it had previously sent correspondence to the Hospitals representing UHW pursuant to the Servicing Agreement. [Quintel Decl. ¶ 17 & Exh. E.] The Hospitals became concerned that when the Weinberg Firm acted on behalf of "Local 715," it was actually retained by UHW and acting under authority of the rejected Servicing Agreement. Accordingly, beginning on August 24, 2007, Mr. Arnold made repeated requests of both Ms. Chisholm and Mr. Smith to clarify whether the Weinberg Firm was representing "Local 715" directly, or was acting pursuant to the invalid Servicing Agreement. [Arnold Decl. ¶ 49 & Exh. NN.] These requests were met with silence or outright refusal to provide the information requested. [Arnold Decl. ¶ 50-53 & Exh. OO-RR.] The Hospitals could only conclude that the Weinberg Firm was, in fact, representing UHW, and that its appearances on "Local 715's" behalf were made under authority of the rejected Servicing Agreement. Therefore, by a letter dated October 16, 2007, Mr. Arnold informed Ms. Chisholm that the Hospitals would no longer participate in any grievance or arbitration proceedings in which the Weinberg Firm appeared absent assurances that the appearance was made directly on behalf of "Local 715" and not pursuant to the invalid Servicing Agreement. [Arnold Decl. ¶ 53 & Exh. RR.] To date, neither the Weinberg Firm nor the Altshuler Firm have provided the 9
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Hospitals with the requested assurance. C. The Hospitals Refuse To Arbitrate The Acosta Grievance Absent Clarification Of The Nature Of The Weinberg Firm's Representation Of "Local 715" The Acosta Grievance was filed on or around March 17, 2007 and alleged that the Hospital terminated Mr. Acosta's employment in violation of the CBA. [Quintel Decl. ¶ 64 & Exh. RR.] Thomas A. Angelo was selected as arbitrator (the "Arbitrator"). [Arnold Decl. ¶ 60 & Exh. ZZ.] On June 26, 2007, Mr. Arnold, having been informed of the Trustee's appointment of Ms. Chisholm as counsel, sent a letter to the Arbitrator informing him of "Local 715's" change in counsel. [Arnold Decl. ¶ 62 & Exh. BBB.] A copy of the letter was sent to Ms. Chisholm. [Id.] The arbitration hearing was scheduled for November 28, 2007. On November 7, 2007, Mr. Arnold informed Ms. Chisholm that the Hospitals intended to insist upon compliance with Article 26.7.8 of the CBA, which provided that arbitration proceedings were to be closed absent prior agreement by the parties. [Arnold Decl. ¶ 63 & Exh. CCC.] In his letter, Mr. Arnold also informed Ms. Chisholm that the Hospitals were not obligated, and would not agree, to engage in arbitration proceedings with UHW representatives, including Weinberg attorneys, acting pursuant to the invalid Servicing Agreement. [Id.] Mr. Arnold appeared at the arbitration hearing on behalf of the Hospitals. [Arnold Decl. ¶ 66.] Appearing purportedly on behalf of "Local 715" was W. Daniel Boone of the Weinberg Firm. [Id.] Accompanying him was an employee of UHW named Myriam Escamilla. [Id.] Mr. Arnold reiterated the Hospitals' position on the record that it would refuse to proceed absent a representation from Mr. Boone that he was retained by "Local 715" directly, and not retained by UHW and appearing pursuant to the rejected Servicing Agreement. [Arnold Decl. ¶ 66 & Exh. FFF p. 17-18.] Mr. Boone refused to provide the requested representation, stating, So I am here. I am stating the appearance on behalf of the Union. Present with me is a union representative. Whether, to use the language, I am retained directly or through a service agreement is not part of the proceedings here. 10
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I'm not quite sure I understand why it's of significance to Mr. Arnold to have me state one way or the other, but he seems to think it's important; and for that reason, I'm not going to do it because I'm not here to aid in whatever tactical moves are being made by Mr. Arnold in aid of some other proceedings which either have been filed or he wants the Union to file. [Arnold Decl. Exh. FFF p. 26.] Given that Mr. Boone expressly refused to clarify the nature of his appearance, the Hospitals refused to go forward with the arbitration. [Arnold Decl. Exh. FFF p. 26.] Furthermore, Mr. Arnold stated the Hospitals' position that the Arbitrator lacked the authority to determine the validity of the Servicing Agreement, or to decide representational issues, such as whether "Local 715" had validly transferred its representational rights to UHW, permitting an attorney retained by UHW to appear at the arbitration hearing. [Arnold Decl. Exh. FFF p. 3435.] Given that Mr. Boone had expressly declined to state whether he was retained by "Local 715" or UHW, and had provided no evidence on that issue, to allow the hearing to go forward with Mr. Boone acting as the representative would be to effectively decide that issue. The Arbitrator agreed that he lacked the power to decide the validity of the Servicing Agreement or representational issues. [Arnold Decl. Exh. FFF p. 33-34.] D. The Arbitrator's Decision

On November 30, 2007, the Arbitrator issued a "Decision and Award" (the "Award"). In the Award, the Arbitrator confirmed that he lacked the power to decide representational issues, including the issue of the validity of the Servicing Agreement. [Arnold Decl. Exh. III p. 4 & 10.] Nevertheless, the Arbitrator proceeded to decide that Mr. Boone was validly representing "Local 715" and upheld the Acosta Grievance. [Arnold Decl. Exh. III p. 14-19.] E. The Petition And Counter-Petition

"Local 715" filed the instant petition to confirm the Award on January 11, 2008. [Dkt. No. 1.] The Hospitals timely filed an answer to the petition on March 6, 2008, as well as a counter-petition to vacate the Award. [Dkt. No. 18.] "Local 715" did not plead in response to the counter-petition. [Inciardi Decl. Exh. HH.]

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III.

DISCUSSION A. Legal Standards Applicable To Summary Judgment Motions

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that 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.P. 56(c). The moving party bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of "`the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56). The non-moving party is not entitled to rest on the mere allegations of its pleading, but must "go beyond the pleadings and by [its] own affidavits, or by the `depositions, answers to interrogatories, and admissions on file' designate `specific facts showing that there is a genuine issue for trial.'" Id. at 324 (citation omitted). Material facts "affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). There is no genuine basis of material fact if, on the record taken as a whole, a rational trier of fact could not find in favor of a party opposing summary judgment. See Matushita Electric Industrial Company v. Zenith Radio Corporation, 475 U.S. 574, 587 (1985). B. The Hospitals Were Not Required To Arbitrate The Acosta Grievance, And The Award Cannot Be Enforced, Because "Local 715" Has Effectively Ceased To Exist It is well-established that, where the NLRB certifies a union as the exclusive bargaining representative of an employer's workers pursuant to the NLRA, the employer is not only obligated to bargain with that union, but is prohibited from bargaining with any other union. Medo Photo Supply Corporation v. National Labor Relations Board, 321 U.S. 678, 673-674 (1944); Nevada Security Innovations, Ltd., 341 NLRB 953, 955 (2004). It follows that, where the certified union has ceased to exist, the employer's bargaining obligation is at an end. Brooks v. National Labor Relations Board, 348 U.S. 96, 98 (1954); Pioneer Inn Associates v. National 12
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Labor Relations Board, 578 F.2d 835, 839 (9th Cir. 1978). Likewise, where an employer and the certified union negotiate a collective bargaining agreement providing for arbitration of disputes, and the union subsequently ceases to exist, the employer no longer has any obligation to arbitrate because only the union has standing to compel arbitration. Moruzzi v. Dynamics Corporation Of America, 443 F.Supp. 332, 336-337 (S.D.N.Y. 1977); Lorber Industries Of California v. Los Angles Printworks Corporation, 803 F.2d 523, 525 (9th Cir. 1986) (The obligation to arbitrate "may not be invoked by one who is not a party to the agreement"). Where the certified union has ceased to exist, its former officials or representatives do not have standing to compel arbitration under its name. Thus, in Moruzzi, supra, where the union went out of existence, its former president "became neither the successor to nor the assignee of the defunct [union] by adopting its name" and he therefore lacked standing to compel arbitration in the former union's name. Moruzzi, supra, 443 F.Supp. at 337. Indeed, the Court lacks jurisdiction over a suit by or against a union, where that union does not actually exist. International Brotherhood Of Boilermakers, Iron Ship Builders, Black-Smiths, Forgers And Helpers, AFL-CIO v. Local Lodge D354, 897 F.2d 1400, 1402-1403 (7th Cir. 1990) ("two opposing parties are minimally required to create a case or controversy."). In this case, a party claiming to be "Local 715" sought to arbitrate with the Hospitals and now seeks to enforce the Award.6 However, the undisputed evidence demonstrates that, on or around March 1, 2007, pursuant to an explicit plan adopted by the SEIU International, Local 715 effectively ceased to exist. Therefore, the Hospitals had and have no obligation to arbitrate the grievance in question. Indeed, the Court lacks jurisdiction over this case. (1) SEIU Adopted And Implemented A Plan That Expressly Called For The Dismemberment And Dissolution Of Local 715 It cannot be disputed that SEIU developed and adopted a reorganization plan for
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The Hospitals' position is that Local 715 ceased to exist after March 1, 2007, or thereabouts. The Hospitals anticipate that Local 715 will contend (despite the evidence to the contrary) that it continues to exist. References are, for this reason, made to "Local 715" relating to the time period after March 1, 2007. These references do not represent, and should not be construed as, an admission that Local 715 continued to exist after that date. 13
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California SEIU locals that called for Local 715 to be absorbed by Local 521 and its private hospital operations, including those relating to the Hospitals, to be transferred to UHW. [Inciardi Decl. Exh. T p. 42-43; 61-62 & 65; Quintel Decl. Exh. K. 2-4.] In the meantime, the Joint Report noted that UHW was "actually servicing" private hospital employees represented by Local 715 pursuant to servicing agreements. [Inciardi Decl. Exh. T p. 16.] (2) The Bulk Of Local 715's Former Membership And Functions Were Merged Into Local 521 In January, 2007, International President Stern ordered that the SEIU reorganization plan be implemented as soon as practicable. [Inciardi Decl. Exh. U.] It is undisputed that, after President Stern's order, Local 715 publicly announced that it was "in the process of transitioning to our new local 521" and that the Local 715 Website would be "taken down" on the last day of February, 2007. [Quintel Decl. ¶ 30 & Exh. P.] It is further undisputed that, after March 1, 2007, Local 521 publicly announced that Local 715 and other locals "have come together" and formed "one larger, more powerful local" and that, "On March 1, 2007, the resources of all five locals were transferred to Local 521."7 [Quintel Decl. ¶ 40 & Exh. X.] (3) Local 715's Private Hospital Members And Functions Were Transferred To UHW Apparently, due in large part to the Hospitals' resistance, the transfer of Local 715's private hospital operations to UHW was conducted less openly than the merger into Local 521. [Inciardi Decl. Exh. W p. 4] However, without doubt the transfer did take place, and Local 715 has ceased to exist. a) Local 715 Assigned Its Representational Functions To UHW

After the Servicing Agreement became effective, although "Local 715" nominally retained its status as the bargaining representative, UHW aggregated to itself all significant representational duties (or at least attempted to do so). Thus, admitted employees of UHW were
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In an apparent effort to maintain the fiction of its continued existence, the Local 715 Website was subsequently re-established. However, the website was virtually devoid of content. [See Declaration Of Scott P. Inciardi, ¶ 2-23 & Exh. A-B.] 14
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assigned to deal with the Hospitals regarding matters of contract negotiation and employee grievances, and the Hospitals were instructed to send all correspondence directly to UHW employees at UHW's San Francisco office. [Quintel Decl. ¶ 1-13 & Exh. B-C.] UHW employees submitted grievances on behalf of Bargaining Unit employees on UHW letterhead, and referred to those employees as members of UHW. [Quintel Decl. ¶ 15 & Exh. D.] Greg Pullman confirmed in an e-mail that UHW employees "handling all representation matters for SEIU Local 715." [Quintel Decl. ¶ 18 & Exh. F (emphasis supplied).] At the same time, UHW employee Jocelyn Olick confirmed in an e-mail that she and the other UHW employees assigned to "service" the Bargaining Unit did not work for Local 715. [Quintel Decl. ¶ 20 & Exh. H.] b) UHW Began Receiving Dues Deducted From Bargaining Unit Members Paychecks In early April, 2006 UHW began receiving from Local 715 the dues deducted from Bargaining Unit employees' paychecks and sent to Local 715 by the Hospitals. This is established by the undisputed fact that persons admittedly acting on behalf of UHW demanded information from the Hospitals for the express purpose of processing the dues deducted from Bargaining Unit employees' paychecks (although the Servicing Agreement called for UHW to provide "services" free of charge). [Quintel Decl. ¶ 16-17 & Exh. E.] c) Bargaining Unit Employees Were Asked To Agree To Change Their Union Affiliation To UHW In September, 2006, Bargaining Unit employees were asked to ratify the reorganization plan adopted by SEIU by means of a state-wide vote. The balloting material distributed to Bargaining Unit employees expressly stated that "Hospital workers at . . . Stanford/Lucille (sic) Packard Children's Hospital . . . will change their affiliation to United Healthcare Workers ­ West." [Quintel Decl. ¶ 26-27 & Exh. M-N.] d) President Stern Ordered The "Reorganization" Of Local 715 Into UHW, And Chief Shop Steward Robert Rutledge Admitted That Local 715 Had Ceased To Exist On January 2, 2007, International President Stern issued the order that the employees 15
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formerly represented by Local 715 were to be "reorganized" (a euphemism for merged) into other locals, and specifically stated that the Hospital employees formerly represented by Local 715 were to be "reorganized" into UHW as soon as practicable. [Inciardi Decl. Exh. U.] On January 31, 2007, Local 715's Chief Shop Steward, Robert Rutledge stated in an email that "SEIU 715 no longer exists and a service agreement between the former 715 and UHW has been in place since March first of 2006." [Quintel Decl. ¶ 28029 & Exh. O.] Mr. Rutledge confirmed this statement in a meeting with Ms. Quintel two (2) days later in which he stated that Local 715 no longer represented the Bargaining Unit, that it had ceased to exist, and that UHW now represented the Bargaining Unit. [Quintel Decl. ¶ 29.] e) "Local 715" Is Represented By UHW's Legal Counsel

Historically, Local 715 was represented by the Weinberg Firm, which has also long represented UHW. [Arnold Decl. ¶ 9-10.] In June, 2007, SEIU purported to place "Local 715" under trusteeship, and the trustee, Bruce "Rusty" Smith designated new counsel for "Local 715" ­ the Altshuler Firm. [Arnold Decl. ¶ 40 & Exh. FF.] Nevertheless, the Weinberg Firm continued to request to bargain, appear in grievance and arbitration proceedings, and issue correspondence purportedly on behalf of "Local 715." [Arnold Decl. ¶ 47; 49; 55; & 65 & Exh. UU & EEE; Quintel Decl. ¶ 54-55 & Exh. K-L.] Despite repeated requests by the Hospitals, neither the Weinberg Firm, nor the Altshuler Firm, nor Mr. Smith himself, have been willing to make a simple representation that the Weinberg Firm was representing "Local 715" directly. [Arnold Decl. ¶ 49-53 & Exh. NN-RR.] Their refusal ­ even when under legal compulsion ­ can only lead to the conclusion that the Weinberg Firm is not representing "Local 715" directly. Instead, it is retained by and represents UHW and is providing legal services pursuant to the invalid Servicing Agreement. Its position, therefore, is no different than UHW itself. f) UHW Claims To Represent The Bargaining Unit

UHW publicly asserts that it, not "Local 715", represents the Bargaining Unit. The UHW Website lists "Stanford University Medical Center" among the facilities that it claims to represent and lists Myriam Escamilla as the "UHW Representative" assigned to the facility. [Inciardi Decl. ¶ 29-30 & Exh. C20-C22.] The UHW Website also contains a document listing 16
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those collective bargaining agreements scheduled to expire in 2008 for the units represented by UHW. "Stanford Univ. Med. Ctr./ Lucille Packard" is among the contracts listed. [Inciardi Decl. ¶ 27 & Exh. D at p. 3.] (4) As Local 715 Has Effectively Ceased To Exist, The Hospitals Had No Obligation To Arbitrate The Acosta Grievance, And It Cannot Be Enforced Against Them As the above evidence demonstrates, SEIU's plan to dissolve Local 715 was carried out and, as of March 1, 2007, Local 715 was no more. Therefore, the Hospitals were not and are not obligated to arbitrate the Acosta Grievance, nor can the Award be enforced against them, as the only party with standing to compel arbitration no longer exists. Second, this Court lacks jurisdiction over this case because the party purportedly maintaining the action has been shown to be fictitious. Therefore, the Court should grant the Hospitals Cross-Petition, vacate the Arbitrator's Award in whole, and dismiss "Local 715's" Petition with prejudice. C. Whether Or Not Local 715 Continues To Exist, The Hospitals Are Not Required To Participate In Grievance And/Or Arbitration Proceedings With Representatives Of UHW Because UHW Is Not The Certified Representative And The Servicing Agreement Is Not Valid Even assuming for the sake of argument only that Local 715 continues to exist (which the Hospitals by no means concede), the Hospitals were still not obligated to arbitrate the Acosta Grievance because the actual party that sought to arbitrate with the Hospitals is not Local 715, but UHW, and UHW has no standing to compel the Hospitals to arbitrate or enforce the Award. "Local 715" and the Weinberg attorneys who have attempted to appear on its behalf with respect to the Acosta Grievance and other grievances filed since March, 2007 have been unwilling to state that such appearances were, or would be, made on behalf of "Local 715" directly, although it would be in their interest to do so were that the case.8 [Arnold Decl. ¶ 64-66
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In a letter dated December 14, 2007, Mr. Smith stated that he authorized the Weinberg Firm to "represent the Union all (sic) aspects of the arbitration process." [Quintel Decl. ¶ 56 & Exh. MM.] This letter, like the representations made by the Weinberg Firm itself on this issue, was carefully crafted in such a way as to fail to address the essential question ­ was the Weinberg 17
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& Exh. DDD-FFF.] This behavior is tantamount to an admission that such appearances were not, and would not be, directly on behalf of "Local 715." Instead, the evidence reflects that the Weinberg attorneys have sought to arbitrate with the Hospitals are retained by UHW and are appearing for "Local 715" pursuant to the invalid Servicing Agreement, which the "trustee" has attempted to resurrect. "Local 715" may argue that UHW attorneys are entitled to represent "Local 715" pursuant to the rejected Servicing Agreement. However, while it is established that a union may assign agents to appear on its behalf, what is actually transpiring is an invalid attempt to transfer "Local 715's" bargaining duties wholesale to UHW. The Hospitals are not obliged to acquiesce in this attempt, and are actually prohibited from doing so. The invalid Servicing Agreement authorizes UHW to provide "services" to "Local 715" consisting of representation in grievance and arbitration proceedings, representation in labor management meetings, and assistance to members appearing before the NLRB.9 [Arnold Decl. Exh. CC.] Yet, after the Servicing Agreement went into effect, UHW simply replaced Local 715 with respect to all aspects of the bargaining relationship. Additionally, the plan adopted by the SEIU expressly called for Local 715's representative duties to be transferred to UHW. It has been recognized that, under the National Labor Relations Act, one union may use agents or experts from another union to act on its behalf in formal labor negotiations. Goad Company, 333 NLRB 677, 679 (2001). However, a union may not use the purported appointment of agents to effectuate a de facto change of the bargaining representative, and under such circumstances, the employer is under no obligation to deal with the purported agents. Goad, supra, 333 NLRB at 680 (employer not obligated to deal with purported agent where

Firm's representation direct or pursuant to the Servicing Agreement, which Mr. Smith asserted remained in full force and effect. Mr. Smith's representation was completely consistent with continued representation through the Servicing Agreement.
9

The Servicing Agreement calls upon Local 715 and UHW to take steps to enforce the Servicing Agreement in the event that it is rejected by the Hospitals, and for , Local 715 to resume representing the Bargaining Unit pending its enforcement, neither of which has taken place. [Arnold Decl. Exh. CC.] 18
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certified union "did not simply enlist the aid of an agent . . . it transferred its representational duties and responsibilities.") See also Sherwood Ford, Inc, 188 NLRB 131, 133-134 (1971) (Board disregarded agency agreement between unions as "a device, subterfuge, or stratagem" designed to accomplish a de facto change of the bargaining agent.). The same conclusion applies here. "Local 715" and UHW have used the invalid Servicing Agreement as a "device, subterfuge, or stratagem" to, in effect, transfer representative status to UHW. Rather than serving as a mere agent, as called for in the Servicing Agreement, UHW has sought to completely supplant Local 715 with respect to every aspect of collective bargaining, leaving "Local 715" as the representative in name only. Given this, the Hospitals are not obligated to (and, in fact, must not) deal with employees and representatives, including Weinberg Firm attorneys, acting pursuant to the invalid Servicing Agreement. D. The Arbitrator's Award Was Invalid And Should Be Vacated

The Hospitals filed a Counter-Petition seeking vacatur of the Arbitrator's Award. "Local 715" has failed to file an answer to that Counter-Petition, and judgment in the Hospitals' favor should be entered on that basis. Furthermore, even if judgment is not granted on that basis, it should be granted because the Award was invalid for multiple reasons. (1) "Local 715" Failed To Respond To The Hospitals' Counter-Petition

Rule 12(a)(1)(B) of the Federal Rules of Civil Procedure provides that "A party must serve an answer to a counterclaim or crossclaim within 20 days after being served with the pleading that states the counterclaim or crossclaim." F.R.Civ.P. 12(a)(1)(B). The Hospitals filed a Counter-Petition To Vacate Arbitration Award on March 6, 2008. [Dkt. No. 18.] "Local 715" did not file an answer to the Counter-Petition. [Inciardi Decl. Exh. HH.] "Local 715" is therefore in default, and the Court should enter judgment in favor of the Hospitals on their Counter-Petition. (2) The Arbitrator Decided Issues That Were Not Arbitrable Under The CBA An arbitrator has authority only to decide issues that are arbitrable in terms of the scope of issues made arbitrable under the parties' agreement, and in terms of the issues submitted to the 19
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arbitrator for decision. AT&T Technologies, Inc. v. Communications Workers Of America, 475 U.S. 643, 656 (1986). It is well-established that an arbitrator's power begins and ends with the contract, and he or she has no authority to enforce or interpret federal labor laws. Doyle v. Raley's Incorporated, 158 F.3d 1012, 1015 (9th Cir. 1998); Phoenix Newspapers, Inc. v. Phoenix Mailers Union 752, 989 F.2d 1077, 1079 FN1 (9th Cir. 1993). In this case, although the issue to be arbitrated was whether the termination of Mr. Acosta violated the CBA, the Arbitrator was presented with a threshold issue of whether the attorney who appeared purportedly on behalf of "Local 715" was actually appearing in that capacity, or was appearing pursuant to an invalid Servicing Agreement, which the Hospitals had rejected. The purported trustee had expressly stated his intention to utilize the Servicing Agreement without change whatsoever, and that agreement provided that UHW would provide professional services at arbitrations. [Quintel Decl. Exh. FF.] The Weinberg firm represents UHW. [Arnold Decl. ¶ 10.] This issue was not one that could be resolved by interpreting the CBA. Rather, it was a representational issue, namely whether Mr. Boone's appearance under authority of the Servicing Agreement comported with the requirements of the NLRA. The Arbitrator expressly agreed, and held in his Award, that he had no authority to decide representational issues, including the validity of the Servicing Agreement. [Arnold Decl. Exh. III p. 15 & FFF p. 34-36.] Yet, inexplicably, the Arbitrator chose to decide that very issue, determining without the benefit of any evidence to support it that Mr. Boone was appearing on behalf of "Local 715", and therefore, necessarily, that the Servicing Agreement pursuant to which he was appearing was valid. This was a determination that, admittedly, was beyond the Arbitrator's power, and should have been decided in an appropriate forum (either before the NLRB or a federal court).10 (3)
10

The Award Exceeded The Issues That Were Submitted For Decision

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Of course, the si