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Law360 (December 9, 2020, 10:16 PM EST) -- A global transportation company has asked a Nevada federal judge to toss a suit from a union representing a Nevada bus system's employees, saying the union wrongly went to court instead of following their collective bargaining agreement's arbitration procedures amid a dispute over mask requirements for passengers.
Keolis Transit America Inc., which operates Washoe County, Nevada's bus system, moved Tuesday to dismiss claims for immediate arbitration and injunctive relief from Local 533 of the International Brotherhood of Teamsters. The company told U.S. District Judge Robert Jones the union had sued instead of working toward an agreeable date for arbitration.
"The union's complaints against Keolis seem to be less about refusing to participate in the arbitration process," the company said, "and more about the union not conducting the arbitration in the way it unilaterally wants."
In the motion to dismiss, Keolis said a state directive requiring most people to wear face coverings during the COVID-19 pandemic applied to its operations but claimed the union wrongly interpreted the directive.
The union had asked Keolis to require all bus passengers to wear masks, the company alleged, but the directive exempted some people from the requirement, including people with certain medical conditions, people experiencing homelessness and children.
The union filed a grievance saying the collective bargaining agreement required Keolis to mandate masks for passengers, and the parties chose arbitrator James Merrill to handle the case. Merrill offered them two choices: have a video-based arbitration in October, or an in-person proceeding in January, according to the motion.
Keolis claimed it asked for the January hearing, while the union wanted the video conference hearing, according to the motion. The union sued Sept. 11.
But after the January hearing was canceled due to the pandemic, the parties couldn't agree on a new date, according to the motion. Keolis alleged the union wouldn't respond to emails about rescheduling but filed an amended complaint Nov. 24.
Keolis said the union couldn't prevail on its claims because it hadn't yet exhausted potential relief through arbitration and denied the union's allegations that it refused to participate in arbitration.
"Keolis did not outright refuse to arbitrate the matter, as the union has stated," the company said. "The union has not responded to arbitrator Merrill's alternative options in proceeding with the arbitration."
Keolis also said it had not refused to arbitrate by declining the remote hearing. The company argued that the union could not support its claims that the case was an exception to the exhaustion rule.
"Despite Keolis' attempts in good faith, the union fails to respond and thwarts its own grievance process," the company said.
The union had also requested an injunction to allow its workers to ask all bus passengers to wear face coverings, even though the state's mask mandate wasn't universal. The proposed injunction would also shield from discipline union members who asked passengers with health or age exemptions to wear masks.
But Keolis pointed out that unions can get status quo injunctions while arbitration is pending only when they seek to halt conduct interfering with the arbitration, a standard known as a "reverse Boys Market," referring to the 1970 case Boys Markets Inc. v. Retail Clerks Union Local 770.
Keolis said the injunction didn't meet that standard because it would create a new status rather than preserve the status quo. The company noted that a New York federal court turned down a similar request from a nurses' union that sued a private hospital for extra personal protective equipment for front-line workers.
Attorneys for Keolis and the union did not immediately respond Wednesday to requests for comment.
The union is represented by Sean McDonald, Kristina Hillman and Tiffany Crain Altamirano of the Law Offices of Kristina L. Hillman.
Keolis is represented by Diana Dickinson of Littler Mendelson PC and by Arturo Ross and Jessica Travers of Akerman LLP.
The case is Teamsters Local Union No. 533, Affiliated with the International Brotherhood of Teamsters v. Keolis Transit America Inc., case number 3:20-cv-00517, in the U.S. District Court for the District of Nevada.
--Editing by Leah Bennett.
For a reprint of this article, please contact reprints@law360.com.
