Burnett Specialists v. Abruzzo
| Docket Number | Civil Action 4:22-cv-00605 |
| Decision Date | 31 August 2023 |
| Parties | BURNETT SPECIALISTS et al., Plaintiffs, v. JENNIFER A. ABRUZZO et al., Defendants. |
| Court | U.S. District Court — Eastern District of Texas |
Pending before the Court are Defendants National Labor Relations Board and General Counsel Jennifer A. Abruzzo's Motion to Dismiss Complaint for Lack of Jurisdiction (Dkt. #16) and Defendant United States of America's Motion to Dismiss Complaint and for Joinder (Dkt. #17). Having considered the motions and relevant pleadings, the Court finds that the motions should be GRANTED.
On April 7, 2022, the General Counsel of the National Labor Relations Board (“NLRB”), Jennifer Abruzzo (“Abruzzo”), issued Memorandum GC 22-04 (“the Memorandum”), which was entitled “The Right to Refrain from Captive Audience and other Mandatory Meetings.” In her Memorandum, Abruzzo explained that under Section 7 of the National Labor Relations Act (“NLRA”), employers have the right to “refrain from listening to employer speech concerning the exercise of Section 7 rights,” and forcing employees to listen to employer speech should qualify as an unfair labor practice (Dkt. #1, Exhibit 1 at p. 3).
Abruzzo then generally outlined the NLRB's historical practice of allowing employees to abstain from listening to employer speech regarding unionization. But that historical practice has since changed-as the NLRB has concluded that an employer may compel its employees to attend meetings when the employer urges them to reject union representation. However, Abruzzo explained her desire for the NLRB to change its stance. Specifically, she noted that she would “ask the Board to reconsider current precedent on mandatory meetings in appropriate cases” and hold that employees need not attend employer meetings in certain circumstances (Dkt. #1 Exhibit 1 at p. 4). Those circumstance are “when employees are (1) forced to convene on paid time or (2) cornered by management while performing their job duties” (Dkt. #1, Exhibit 1 at p. 3).
The Memorandum itself is a nonbinding policy letter from the General Counsel with no legal effect. Yet, consistent with this Memorandum, the NLRB General Counsel's Office has started prosecuting cases for unfair labor practices where employees have convened during certain times touched on in the Memorandum. These prosecutions are, in essence, the vehicle by which Abruzzo seeks to change the Board's position on certain classes of employer speech.
After Abruzzo issued the Memorandum, Plaintiffs filed a lawsuit in this Court against Abruzzo, the NLRB, and the United States of America. Plaintiffs are staffing companies that operate throughout Texas, and they allege that (1) the Memorandum violates their First Amendment rights, and (2) the Memorandum is an ongoing violation of federal law that the Court may remedy by granting equitable relief (Dkt. #1). Specifically they assert that Abruzzo's Memorandum has a chilling effect on their speech and what they can tell their employees about unionization (Dkt. #1).
The NLRB and Abruzzo then filed a motion to dismiss for lack of subject-matter jurisdiction (Dkt. #16). The NLRB and Abruzzo contend that (1) the NLRA precludes judicial review of Abruzzo's actions, (2) Plaintiffs are not challenging a final agency action within the meaning of the Administrative Procedure Act (“APA”), and (3) Plaintiffs lack standing to otherwise bring a claim (Dkt. #16). Thereafter, the United States of America filed a motion to dismiss for the same reasons articulated by the NLRB and Abruzzo (Dkt. #17). Plaintiffs filed a response to Defendants' motions (Dkt. #19), and then the parties filed reply and sur-reply briefing (Dkt. #23); (Dkt. #26). On August 11, 2023, the Court heard oral arguments on Defendants' pending motions and whether the Court had jurisdiction to entertain the current case. The Court took the matter under advisement following the hearing.
Federal Rule of Civil Procedure 12(b)(1) authorizes the dismissal of a case for lack of subject-matter jurisdiction when the district court lacks the statutory and constitutional power to adjudicate the case. See Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). When ruling on a motion to dismiss for lack of subject-matter jurisdiction, a court may consider: (1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Den Norske Stats Oljeselskap As v. HeereMac v.o.f., 241 F.3d 420, 424 (5th Cir. 2001); see also Clark v. Tarrant Cnty., 798 F.2d 736, 741 (5th Cir. 1986) (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)). The Court will accept as true all well-pleaded allegations set forth in the complaint and construe those allegations in the light most favorable to the plaintiff. Truman v. United States, 26 F.3d 592, 594 (5th Cir. 1994). Once a defendant files a motion to dismiss under Rule 12(b)(1) and challenges jurisdiction, the party invoking jurisdiction has the burden to establish subject-matter jurisdiction. See Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980).
As mentioned, Defendants argue that this case should be dismissed in its entirety because the Court lacks jurisdiction for several different reasons. The Court is inclined to agree because (1) the NLRA's structure precludes review of Abruzzo's Memorandum and (2) Plaintiffs lack standing to bring their claims of First Amendment chill. Thus, the Court will grant Defendants' motions to dismiss.
For their first line of attack, Defendants maintain that the NLRA's statutory scheme compels the conclusion that a district court lacks jurisdiction to hear Plaintiffs' claims of First Amendment chill. Namely, they assert that Abruzzo's actions here are either unreviewable prosecutorial decisions or the NLRA's statutory scheme precludes district court jurisdiction. The Court is convinced that it lacks jurisdiction on both grounds. But to understand why, an overview of the NLRA is necessary.
In 1935, Congress enacted the NLRA to encourage “‘the practice and procedure of collective bargaining' between labor and management and to resolve ‘industrial disputes arising out of differences as to wages, hours, or other working conditions.'” Glacier Nw., Inc. v. Int'l Bhd. of Teamsters Local Union No. 174, 143 S.Ct. 1404, 1410 (2023) (quoting 29 U.S.C. § 151). In turn, the Act provides employees with certain rights. Section 7 of the NLRA “protects employees' rights ‘to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.'” Id. at 1410 (quoting 29 U.S.C. § 157). Equally important, Section 7 allows employees to “refrain from any or all such activities” as well. 29 U.S.C. § 157. Section 8, meanwhile, forbids employers from engaging in any “unfair labor practice,” which includes “interfering with employees' exercise of their § 7 rights.” Glacier Nw., 143 S.Ct. at 1410 (citing 29 U.S.C. § 158(a), (b)).
“Congress has explicitly chosen the NLRB as its agent to enforce the National Labor Relations Act.” Overstreet v. Apex Linen Holdings, LLC, 618 F.Supp.3d 1014, 1027 (D. Nev. 2022) (quoting NLRB v. Cont'l Hagen Corp., 932 F.2d 828, 833 (9th Cir. 1991)). Thus, Congress has determined that the Board has the authority to determine whether an unfair labor practice has occurred. Id. (citing Nathanson v. NLRB, 334 U.S. 25, 30 (1952)). Enforcement of unfair labor practices is “accomplished through a split-enforcement system, assigning all prosecutorial functions to the General Counsel of the NLRB and all adjudicatory functions to the Board.” Beverly Health & Rehab. Servs., Inc. v. Feinstein, 103 F.3d 151, 152 (D.C. Cir. 1996) (citing NLRB v. United Food & Com. Workers Union, Local 23 (UFCW), 484 U.S. 112, 123-28, 108 S.Ct. 413, 42024 (1987)).
Under the NLRA, the unfair labor practice process begins when a private party files a “charge” alleging an unfair labor practice. Id. at 152-53 (citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 138 (1975)); see also Kent Corp. v. NLRB, 530 F.2d 612, 615 (5th Cir. 1976). The General Counsel then evaluates whether a “complaint” should be filed based on the charge. Kent Corp., 530 F.2d at 615. The decision to bring a complaint is solely within the General Counsel's discretion, and the Board may not adjudicate a case until the General Counsel has done so. Id.; see also Beverly Health & Rehab Servs., 103 F.3d at 153. The General Counsel's complaint has no legal effect upon an employer, and it is ultimately disposed of through an informal settlement agreement or formal adjudication before the Board itself. Beverly Health & Rehab Servs., 103 F.3d at 153. When the Board issues a final order, it is appealable to a United States Court of Appeals, not a district court. Id.; 29 U.S.C. § 160(f). But if the General Counsel does not issue a complaint, a private party “can obtain neither adjudication nor remedy under the labor statute ....” Kent Corp., 530 F.2d at 615; see also Beverly Health & Rehab Servs., 103 F.3d at 153.
Taking matters further, judicial review of the General Counsel's decision-making is limited. Under the NLRA, the General Counsel “shall have final authority, on behalf of the Board, in respect of the investigation of charges and issuance of [administrative] complaints . . . and in respect of the prosecution of such...
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