Remington Lodging & Hospitality Llc v. Ahearn

• Decision Date: 28 October 2010
• Docket Number: Case No. 3:10–cv–00214–TMB.
• Citation: 749 F.Supp.2d 951
• Parties: REMINGTON LODGING & HOSPITALITY, LLC, Petitioner,v.Richard AHEARN, in his official capacity as Regional Director of National Labor Relations Board, Region 19, Respondent.
• Court: U.S. District Court — District of Alaska

749 F.Supp.2d 951

REMINGTON LODGING & HOSPITALITY, LLC, Petitioner,

v.Richard AHEARN, in his official capacity as Regional Director of National Labor Relations Board, Region 19, Respondent.

Case No. 3:10–cv–00214–TMB.

United States District Court, D. Alaska.

Oct. 28, 2010.

Adolf V. Zeman, Jr., DeLisio Moran Geraghty & Zobel, P.C., Anchorage, AK, Arch Y. Stokes, Karl Montague Terrell, Peter Glenn Fischer, Stokes Roberts & Wagner, Atlanta, GA, for Petitioner.Dawn L. Goldstein, Senior Attorney, Abby Propis Simms, Deputy Assistant General Counsel, Nancy E. Kessler Platt, Supervisory Attorney, Mark G. Eskenazi, Attorney, National Labor Relations Board, Eric G. Moskowitz, Assistant General Counsel for Special Litigation, Washington, DC, Gary M. Guarino, U.S. Attorney's Office, Anchorage, AK, for Respondent.

ORDER

TIMOTHY M. BURGESS, District Judge.

This matter comes before the Court on Petitioner Remington Lodging & Hospitality, LLC's request for a writ of mandate compelling Respondent Richard Ahearn, the Regional Director of NLRB Region 19, to take certain actions related to an underlying NLRB proceeding.¹ Respondent has filed an opposition to Petitioner's request, and asked the Court to construe its opposition as a motion to dismiss under Rule 12(b)(1) and Rule 12(b)(6). ² For the reasons stated below, the Court hereby DENIES Petitioner's request for a writ of mandate, GRANTS Respondent's motion to dismiss under Rule 12(b)(1), and DISMISSES the petition.³

I. BACKGROUND

The National Labor Relations Act (“NLRA”) provides that the NLRB may adjudicate labor disputes and collective bargaining representation issues. ⁴ As part of its duties, the NLRB adjudicates unfair labor practice (“ULP”) charges filed by private parties ⁵ and investigates petitions raising representation questions and determines whether to hold representation elections.⁶ The NLRB's General Counsel is tasked with investigating ULP charges, and determining whether to issue administrative complaints, leading to adjudications before the NLRB.⁷ The General Counsel has delegated the initial power to decide whether or not to issue complaints to various regional directors.⁸ Similarly, the regional directors are responsible for investigating representation petitions.⁹ Respondent is the Regional Director for Region 19, which includes Alaska.¹⁰

Petitioner is the management company for the Sheraton Hotel in Anchorage, Alaska.¹¹ The Petitioner has been engaged in disputes with the Hotel workers' union, UNITE HERE, Local 878 (“Union”), since late 2008, in anticipation of the expiration of their collective bargaining agreement in early 2009.¹² After extensions, the agreement expired in August 2009. ¹³ Both Petitioner and the Union subsequently filed ULP charges with Respondent in October 2009 alleging that the other party failed to bargain in good faith.¹⁴ Respondent eventually dismissed the Petitioner's ULP charge and decided to issue a complaint on the Union's charge.¹⁵ Petitioner unsuccessfully appealed the dismissal.¹⁶ Hearings are ongoing before an ALJ.

The Union subsequently filed additional charges, including claims that four employees were improperly discharged.¹⁷ After Respondent threatened to seek injunctive relief under NLRA § 10(j),¹⁸ Petitioner reinstated these individuals with back pay which it contends “settled” the charge. ¹⁹ Respondent never accepted this settlement, however, and Respondent contends that the charge remains relevant in the ULP proceeding.²⁰ The ALJ has decided not strike the charge, but is permitting Petitioner to argue that it is moot.²¹

In July 2010, both Petitioner and the Union filed additional ULP charges.²² The Union's charges included allegations that Petitioner improperly withdrew recognition from the Union as the exclusive collective bargaining representative and solicited the employees to sign a decertification petition.²³ Petitioner declined to participate in the investigation of the Union's new charges, claiming that it did not have the resources to participate in the investigation and prepare for hearings on the prior charges that were scheduled for August 2010 before the ALJ.²⁴ Respondent subsequently decided to pursue the additional charges against Petitioner. ²⁵ Petitioner's charges remain under investigation.²⁶

In August 2010, during the hearing on the Union's ULP charges, Petitioner elicited testimony from Union representatives that it claims supports its original (now dismissed) ULP charge.²⁷ It subsequently asked Respondent to “reopen” the charge.²⁸ Respondent informed Petitioner that the proper procedure under the circumstances is to file a new ULP charge.²⁹ To the Court's knowledge, Petitioner has not done so. ³⁰

On September 23rd, a Hotel employee filed a petition to decertify the Union. ³¹ The decertification petition prompted the Union to file additional ULP charges.³² Respondent has held the decertification petition in abeyance while seeking to resolve the ULP charges, consistent with the NLRB's “blocking charge rule.” ³³ Petitioner has not indicated whether it will seek review of this decision.³⁴

Petitioner brought this action on September 23 (the same day the decertification petition was filed), seeking a writ of mandate and requesting that this Court schedule a hearing on shortened time.³⁵ The Court accordingly scheduled a hearing and, given Petitioner's request to hear the matter on shortened time, ordered Petitioner to serve Respondent and the Union with the original petition and supporting papers.³⁶ After some adjustments to the schedule, Petitioner filed an Amended Petition,³⁷ supporting memorandum of points and authorities,³⁸ and exhibits. ³⁹ Subsequently, Respondent filed an opposition with exhibits, ⁴⁰ the Union filed an opposition,⁴¹ and Petitioner filed a reply.⁴²

At the hearing on October 21, 2010, the Court heard oral argument from Petitioner and Respondent, requesting that the parties direct their arguments to the question of whether the Court had jurisdiction.⁴³ The Court permitted counsel for the Union to participate telephonically,⁴⁴ but advised the Union to file a motion to intervene if it wished to remain involved in the action.

II. LEGAL STANDARD

The parties agree that jurisdiction is available under the Mandamus Act ⁴⁵ to compel a federal official to perform a duty if: “(1) the individual's claim is clear and certain; (2) the official's duty is nondiscretionary, ministerial, and so plainly prescribed as to be free from doubt, and (3) no other adequate remedy is available.” ⁴⁶ A claimant must have a “legal entitlement to relief” in order to satisfy the “clear and certain” requirement.⁴⁷ The claimant must point to “legally enforceable duties,” such as agency regulations or pronouncements that “ ‘prescribe substantive rules- not interpretive rules, general statements of policy or rules of agency organization, procedure or practice,’ and must have been ‘promulgated pursuant to specific statutory grant of authority and in conformance with the procedural requirements imposed by Congress.’ ” ⁴⁸ In order to satisfy the second requirement, the official's duty must be “clearly ministerial.” ⁴⁹ Additionally, the third requirement is not ordinarily satisfied where a statutory method of review is available. ⁵⁰

Petitioner also argues that the Court has jurisdiction under the general federal question jurisdiction statute ⁵¹ because it is asserting a constitutional due process violation. Respondent argues that the general grant of jurisdiction under § 1331 is irrelevant when a specific statutory scheme exists.⁵² In light of the case law discussed below (which is not limited to the Mandamus Act), the Court concludes that its analysis applies to both of Petitioner's asserted bases for jurisdiction.⁵³

Respondent has also asked the Court to construe its opposition and supporting materials as a motion to dismiss under Rule 12(b)(1).⁵⁴ Where a party brings a “factual” motion to dismiss for lack of subject matter jurisdiction based on extrinsic evidence, the court may look “beyond the complaint without having to convert the motion to dismiss into a motion for summary judgment.” ⁵⁵ The proponents of subject-matter jurisdiction bear the burden of establishing its existence by a preponderance of the evidence. ⁵⁶

III. DISCUSSION

As explained in its Amended Petition, Petitioner seeks an order from this Court compelling Respondent to: (1) stay the ULP proceeding while the Union votes on the decertification petition; (2) reopen its ULP charge against the Union based on alleged new evidence uncovered in the ULP hearings; (3) dismiss the ULP charge relating to the discharge of the four employees that it claims has been settled; (4) delay further ULP hearings so that it may participate in the investigation and defense of the Union's July ULP charges; and (5) declare that any injunctive relief that the NLRB may seek under NLRA § 10(j) is inappropriate to the extent that it is based on the dismissal of the four employees.⁵⁷

In light of the caselaw discussed below, the Court will evaluate Petitioner's requests by the following four categories: (a) Petitioner's request to “re-open” its dismissed ULP charge; (b) Petitioner's requests related to the current ULP proceeding; (c) Petitioner's request that Respondent process the decertification petition; (d) Petitioner's request for declaratory relief; and (e) Petitioner's other contentions.

A. “Re–Opening” Petitioner's ULP Charge

Petitioner requests the Court to order Respondent to “re-open” a ULP charge that he rejected.⁵⁸ Under the NLRA, the General Counsel has “final authority” to investigate ULP charges and issue complaints.⁵⁹ The General Counsel has delegated this duty to Respondent.⁶⁰ This duty is plainly discretionary.⁶¹ The NLRB regulations provide that a complaining party may appeal a regional director's decision not to issue a complaint to the General Counsel's office in Washington.⁶² Neither the statute nor the regulations provide any further...