Nat'l Labor Relations Bd. v. Gov't of V.I.

• Decision Date: 27 October 2021
• Docket Number: Civil Action 2020-0007
• Parties: NATIONAL LABOR RELATIONS BOARD, Plaintiff, v. GOVERNMENT OF THE VIRGIN ISLANDS, and VIRGIN ISLANDS CASINO CONTROL COMMISSION, Defendants.
• Court: U.S. District Court — Virgin Islands

NATIONAL LABOR RELATIONS BOARD, Plaintiff, v. GOVERNMENT OF THE VIRGIN ISLANDS, and VIRGIN ISLANDS CASINO CONTROL COMMISSION, Defendants.

Civil Action No. 2020-0007

United States District Court, D. Virgin Islands

October 27, 2021

Angela Tyson-Floyd, Esq., St. Croix, U.S.V.I. David P. Boehm, Esq. Washington, DC For Plaintiff

Ariel M. Smith, Esq., St. Thomas, U.S.V.I. For Defendant Government of the Virgin Islands Emile A. Henderson, III, Esq., St Croix, U.S.V.I. For Defendant Virgin Islands Casino Control Commission

MEMORANDUM OPINION

WILMA A. LEWIS District Judge

THIS MATTER comes before the Court on the “Motion to Dismiss for Lack of Subject Matter Jurisdiction or in the Alternative for Failure to State a Claim for which Relief can be Granted” (Dkt. No. 6) filed by Defendant Virgin Islands Casino Control Commission (“Defendant VICCC” or “Commission”); Plaintiff National Labor Relations Board's (“Plaintiff” or “NLRB”) “Response in Opposition to Virgin Islands Casino Control Commission's Motion to Dismiss” (Dkt. No. 14); and Defendant VICCC's Reply (Dkt. No. 21). Additionally, before the Court is Defendant Government of the Virgin Islands' (“Defendant GVI”) “Motion to Dismiss” (Dkt. No. 8) and Plaintiff's “Response in Opposition to Government of the Virgin Islands' Motion to Dismiss” (Dkt. No 18).^[1] For the reasons discussed below, the Court will grant Defendant VICCC's Motion to Dismiss on the single issue pertaining to the order directing the Virgin Islands Workers Union Local 611 to withdraw its NLRB charge, but otherwise deny the Motion. The Court will also deny Defendant GVI's Motion to Dismiss.

I.BACKGROUND

On February 14, 2020, Plaintiff filed the Complaint in this matter seeking declaratory relief against Defendants. (Dkt No. 1). According to the Complaint, the Virgin Islands Casino and Resort Control Act of 1995, 32 V.I.C. § 401, et seq. (“the Casino Act”) regulates the gaming industry in the Virgin Islands, including labor organizations in the gaming industry. (Dkt. No. 1 at ¶¶ 10-11). The Casino Act established Defendant VICCC and made it responsible for administering the statute. Id. at ¶¶ 7, 10 (citing 32 V.I.C. §§ 404, 415). Plaintiff is the independent agency of the United States charged with enforcing the National Labor Relations Act, 29 U.S.C. § 151, et seq. (“NLRA”). Id. at ¶ 5.

Plaintiff alleges that Grape Tree Shores d/b/a Divi Carina Bay Resorts (“Divi Carina”) operates a hotel on St. Croix, and in 2008 Plaintiff certified the Virgin Islands Workers Union Local 611 (“the Union”) as the exclusive collective-bargaining representative of Divi Carina's hotel employees. (Dkt. No. 1 at ¶¶ 24, 26, 27). Divi Carina and the Union faced obstacles in negotiating with each other. Id. at ¶¶ 28-29. In 2009, the Union filed an unfair labor practice charge with Plaintiff alleging that Divi Carina had refused to bargain with the Union. Id. at ¶ 28. Plaintiff issued an order directing Divi Carina to bargain with the Union which the Third Circuit enforced in 2011. Id. at ¶¶ 29-31.

The Complaint alleges that in 2012, Divi Carina sent the Union an email stating that Divi Carina could not continue to bargain with the Union due to the Union's failure to register with the Commission in accordance with the Casino Act. Id. at ¶ 33. The Union then filed an unfair labor practice charge with Plaintiff alleging that Divi Carina had unlawfully conditioned collective bargaining on the Union's compliance with the Casino Act. Id. at ¶ 35. The Complaint alleges that the Commission ordered the Union to cease and desist from union activities because it was not properly registered pursuant to 32 V.I.C. § 445, and further ordered the Union to withdraw the NLRB charge filed against Divi Carina. Id. at ¶ 36. Plaintiff corresponded with Defendant VICCC regarding its order and Plaintiff's belief that Section 445 “appeared to conflict with the NLRA.” Id. at ¶ 37. Defendant VICCC responded that “under its interpretation of the Casino Act, if the Union failed to register, Section 445 of the Casino Act prevents the Union from representing employees, bargaining any agreement with a casino entity, or entering casino employers' facilities in order to speak with employees about work conditions.” Id. at ¶ 38. Defendant VICCC subsequently notified Plaintiff that it had rescinded its prior order requiring the Union to withdraw its Board charge in light of the Union's “imminent registration.” Id. at ¶ 39.

The Complaint further alleges that Defendant VICCC issued the Union's first annual registration on February 6, 2014. Id. at ¶ 42. Over the next five years however, the Commission repeatedly failed to timely renew the Union's registration for months or even years after it had expired. Id. at ¶¶ 43-45. Plaintiff alleges that Defendant VICCC's threats of criminal and civil action prevent the Union from bargaining or engaging in union activities at Divi Carina while not registered with the Commission, and thus interferes with the hotel employees', the Union's, and the employer's rights under the NLRA, as well as Plaintiff's investigatory and remedial powers under the NLRA. Id. at ¶¶ 47-61. Plaintiff thus seeks an Order from the Court declaring that Defendant VICCC's:

prior orders and policy under the Casino Act . . . are invalid as inconsistent with the NLRA, and further declare that 32 V.I.C. § 445(a), (d), and (e), cannot be construed to:

a. prohibit a labor organization from engaging in representational or other union activities during periods of non-registration,

b. serve as the basis for any administrative, civil, or criminal enforcement action, or threaten to do the same, against any person for filing charges, giving testimony or otherwise participating in an investigation or proceeding under the NLRA or lawfully exercising rights or complying with a valid judicial order under the NLRA,

c. resist, prevent, impede, or interfere with the Board or any of its agents in the lawful performance of duties pursuant to the NLRA.

Id. at 15.

Defendant VICCC filed the instant Motion to Dismiss arguing that the Court lacks subject matter jurisdiction to hear the NLRB's claims because the Declaratory Judgment Act does not provide a basis for jurisdiction, and there is no independent basis for jurisdiction. (Dkt. No. 6 at 6-9). In the alternative, Defendant VICCC contends that Plaintiff has failed to state a claim for which relief can be granted because Section 445 is not preempted by the NLRA-under express or field preemption principles-and it does not conflict with the NRLA or the Labor Management Reporting and Disclosure Act of 1959 (“LMRDA”). Id. at 10-20. Finally, Defendant VICCC argues that the issue of its order directing the Union to withdraw the NLRB charge has been rendered moot. Id. at 20-25.

In addition to joining Defendant VICCC's Motion to Dismiss, Defendant GVI filed its separate Motion to Dismiss. In its Motion, Defendant GVI argues that the Complaint should be dismissed because it fails to allege any actions that Defendant GVI took or request any relief from it, and therefore fails to state a claim as to Defendant GVI. (Dkt. No. 8).

Plaintiff opposes both Motions to Dismiss. (Dkt. Nos. 14, 18).

II. APPLICABLE LEGAL PRINCIPLES

A. Subject Matter Jurisdiction

It is axiomatic that federal courts are courts of limited subject matter jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Federal courts possess subject matter jurisdiction only over cases that present a federal question, 28 U.S.C. § 1331, or when diversity of citizenship exists and the value of the claim exceeds $75, 000, exclusive of interest and costs, 28 U.S.C. § 1332(a).

An attack under Rule 12(b)(1) to a court's subject matter jurisdiction can be either a facial or factual attack. Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000) (citing Mortensen v. First Fed. Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)). A facial attack-as it is denominated-challenges the sufficiency of the jurisdictional allegations in the complaint on their face. Petruska v. Gannon University, 462 F.3d 294, 302 n.3 (3d Cir. 2006). In contrast, a factual attack disputes “the factual allegations underlying the complaint's assertion of jurisdiction, ” and involves the presentation of competing facts. Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016). A facial attack requires that a court “only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff.” Gould Elecs. Inc., 220 F.3d at 176. On the other hand, a court may consider evidence beyond the complaint in reviewing a factual attack. Id. In so doing, “the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case” and “no presumptive truthfulness attaches to plaintiffs allegations.” Mortensen, 549 F.2d at 891. When subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff bears the burden of persuasion. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991) (citing Mortensen, 549 F.2d at 891).

B. Standing, Ripeness, and Mootness

Article III of the Constitution provides that federal judicial power extends to cases and controversies. See U.S. Const art III, § 2, cl.1. Standing is one element of the “case or controversy” requirement of Article III of the Constitution. Warth v. Seldin, 422 U.S. 490, 498-99 (1975); Conte Bros. Auto., Inc. v. Quaker State-Slick 50, Inc., 165 F.3d 221, 224 (3d Cir. 1998) (citing Bennett v. Spear, 520 U.S. 154, 162 (1997); Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101-03 (1998)). “Constitutional standing requires (1) injury-in-fact, which is an invasion of a legally...