Ashley v. National Labor Relations Bd.

• Decision Date: 25 September 2006
• Docket Number: No. 1:06CV00316.,1:06CV00316.
• Citation: 454 F.Supp.2d 441
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Fred ASHLEY, Randy Fowler, Henry Juarez, Andrew Turner, Plaintiffs, v. NATIONAL LABOR RELATIONS BOARD, Robert J. Battista, in his official capacity as Chairman of the National labor Relations It card, Peter C. Schaumber, Wilma R. Liebman, Peter N. Kirsanow, Dennis P. Walsh, in their official capacities as members of the National Labor: Relations Board, Willie IL. Clark, Jr., in his official capacity as the Regional Director of the Eleventh Region of the National: Labor Relations Board, Defendants.

454 F.Supp.2d 441

Fred ASHLEY, Randy Fowler, Henry Juarez, Andrew Turner, Plaintiffs, v. NATIONAL LABOR RELATIONS BOARD, Robert J. Battista, in his official capacity as Chairman of the National labor Relations It card, Peter C. Schaumber, Wilma R. Liebman, Peter N. Kirsanow, Dennis P. Walsh, in their official capacities as members of the National Labor: Relations Board, Willie IL. Clark, Jr., in his official capacity as the Regional Director of the Eleventh Region of the National: Labor Relations Board, Defendants.

No. 1:06CV00316.

United States District Court, M.D. North Carolina.

September 25, 2006.

Philip Marshall Van Hoy, Stephen J. Dunn, Van Hoy Reutlinger Adams & Dunn, Charlotte, NC, William L. Messenger, National Right to Work Legal Defense Foundation, Springfield, VA, for Plaintiffs.

Kye D. Pawlenko, Eric G. Moskowitz, National Labor Relations Board, Washington, DC, Rosetta Baker Lane, National Labor Relations Board, Winston-Salem, NC, for Defendants.

MEMORANDUM OPINION

OSTEEN, District Judge.

Plaintiffs Fred Ashley, Randy Fowler, Henry Juarez, and Andrew Turner (collectively, "Plaintiffs") filed this action against Defendant National Labor Relations Board ("NLRB") alleging a deprivation of liberty and property interests without due process of law in violation of the Fifth Amendment. Pending before this court is Defendants' motion to dismiss for failure to state a claim and for lack of subject matter jurisdiction. For the reasons stated below, the court will grant Defendants' motion.

I. FACTUAL BACKGROUND

Plaintiffs are all employees of Thomas Built Buses ("TBB") in High Point, North Carolina. TBB has developed an interesting relationship with the International Union, United Automobile and Agricultural Implement Workers of America ("UAW"). On at least two occasions, employees have charged TBB with unlawfully aiding UAW in increasing its membership. Plaintiffs recount one instance in particular where TBB helped UAW assemble employees in order to encourage them to sign up for union membership. (Compl. ¶¶ 37-38.) As a result of this arrangement, UAW became certified as the exclusive bargaining representative of TBB's employees. (Compl. ¶ 38.) In response to TBB's actions, a TBB employee filed an unfair labor practice charge with the NLRB that resulted in, inter alia, TBB withdrawing its recognition of UAW as the exclusive representative of the TBB employees. (Compl.¶¶ 39-42.)

Subsequent to the withdrawal, UAW renewed its attempt to serve as the exclusive representative of the TBB employees. On June 29, 2005, the NLRB (after petition by UAW) held an election to determine whether to certify UAW as the exclusive representative of the TBB employees. (Compl. ¶ 45.) One day prior to the election, however, TBB circulated a memorandum to its employees giving notice of a potential increase in the cost of health benefits. (Compl.¶¶ 46-47.) The memorandum stated that such changes were applicable to only non-represented employees. (Id.) UAW took advantage of the coincidental and opportune moment by distributing copies throughout the plant bearing the headline: "DID YOU SEE THIS? THE COST OF BEING NON-UNION JUST WENT UP!" (Compl.¶ 48.) After the election, the unofficial vote tally was 714 in favor of UAW and 504 opposed. (Compl.¶ 49.)

II. PROCEDURAL HISTORY

Plaintiffs filed a motion to intervene with the Regional Director on July 5, 2005. They sought to become parties to the UAW representational proceedings so that they could file objections to the conduct alleged to influence the results of the election. (Compl.¶ 53.) Plaintiffs also filed Objections To Conduct Affecting the Results of the Election ("Plaintiffs' objections") with NLRB's Regional Director, claiming that the release of the health benefits memorandum before the election constituted objectionable conduct and grounds for setting aside the election results. (Compl.¶ 54.) In an order dated July 8, 2005, the NLRB's Acting Regional Director denied Plaintiffs' motion and stated that the merits of Plaintiffs' objections would not be considered. (Compl.¶¶ 56-57.) That same day, the Regional Director certified UAW as the exclusive bargaining representative of TBB's employees¹ (Compl.¶ 58.)

On July 15, 2005, Plaintiffs filed an appeal with the NLRB contesting the denial of their motion to intervene and dismissal of their objections. (Compl.¶ 59.) The NLRB Appeals Board issued an order affirming the denial of Plaintiffs' motion to intervene, and thus did not consider the merits of Plaintiffs' objections. (Compl.¶ 62.) As a result of this decision, Plaintiffs filed the current action with this court.

In response to Plaintiffs' complaint, Defendants filed a motion to dismiss the claim under Rule 12(b)(1) and (6) of the Federal Rules of Civil Procedure. Defendants contend that Plaintiffs lack standing to bring a claim for deprivation of due process because Plaintiffs failed to avail themselves of the NLRB's procedures. Defendants also contend that this court lacks subject matter jurisdiction and that Plaintiffs fail to state a claim upon which relief can be granted.

III. ANALYSIS

The court will address Defendants' arguments in the order in which they were outlined in Defendants' brief. First, the court will address whether Plaintiffs have standing to maintain their claim, then the court will determine whether jurisdiction is appropriate and whether Plaintiffs' claim is proper. For the reasons stated below, this court finds that it lacks jurisdiction for two reasons. First, Plaintiffs lack standing to challenge the NLRB's procedures as insufficient because additional administrative alternatives were available to them. Second, the National Labor Relations Act, 29 U.S.C. §§ 151, et seq. ("NLRA") gives the NLRB primary exclusive jurisdiction to review matters related to unfair labor practices claims and representational issues, thus divesting the district court of jurisdiction.

A. Plaintiffs Lack Standing

In order to determine whether Plaintiffs may maintain this action, it is necessary to determine whether they are appropriately before this court. Defendants contend that Plaintiffs lack standing to judicially challenge the adequacy of the NLRB's procedures because: (1) they failed to avail themselves of the appropriate NLRB procedures, and (2) they did not exhaust the available procedures. Plaintiffs did not directly address this contention in their response. This court finds that Plaintiffs do not suffer an injury sufficient to confer standing to challenge the NLRB's procedures as deficient.

Federal courts, as courts of limited jurisdiction, are confined by Article III, Section 2 of the Constitution to preside over actual "cases" or "controversies." Lujan v. Defenders of Wildlife, 504 U.S. 555, 559, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). Standing is a necessary and essential element of the jurisdictional requirements of Article III. Id. at 560, 112 S.Ct. at 2136 (citation omitted). In order to meet the "irreducible constitutional minimum of standing," Plaintiffs must satisfy three elements. Id. The first of these three elements requires Plaintiffs to have suffered an injury in fact that is "(a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical." Id. (citations and quotations omitted). The second element requires the existence of a causal connection between the injury and alleged conduct, so that the injury is "fairly traceable to the challenged action of the defendant." Id. (citation and quotations omitted). The third element requires that "it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Id. at 561, 112 S.Ct. at 2136 (citation and quotations omitted).

In this case, Defendants contend that Plaintiffs suffered no actual or concrete injury because they did not utilize the proper NLRB procedures. Defendants ground this contention in two slightly different legal precedents. First, Defendants direct the court to Shavitz v. City of High Point, 270 F.Supp.2d 702, 710-11 (M.D.N.C.2003), in which this court held that a plaintiff suffers no concrete and particularized injury in situations where he fails to utilize the procedural processes provided to him. Shavitz, 270 F.Supp.2d at 702. Additionally, Defendants claim that the court must take into consideration the "entire panoply" of the available NLRB procedures because the standing requirement imposes upon a plaintiff a duty to exhaust administrative procedures before complaining that they are constitutionally insufficient.

1. Analysis under Shavitz v. City of High, Point

The case of Shavitz v. City of High Point stands for the principle that one who does not attempt to use available government procedures may not later claim that such procedures are inadequate. In Shavitz, the plaintiff claimed that the City of High Point deprived him of due process for assessing a $50 civil fine against him for a red light violation detected by a traffic camera system. Shavitz, 270 F.Supp.2d at 705. The plaintiff contended that the adjudicative procedures used by the city were insufficient, despite the fact that he could not "trace any deprivation or threatened deprivation of property to any of the adjudicative procedures ... he question[ed] because he never made use of them." Id. at 710. The court, therefore, dismissed the case upon finding that the plaintiff "ha[d] not suffered a concrete and particularized injury as a result of [an] allegedly deficient process" when he "ha[d] not availed himself of the process Defendants ha[d] provided." Id. at 711.

In this case, Plaintiffs attempted to use the NLRB's procedures to prevent UAW from being elected the exclusive representative of TBB's employees. Plaintiffs initially filed a motion to intervene in order to submit objections, and then they filed actual objections (though this second process was most likely futile as the NLRB would only accept objections from...