Ohlendorf v. United Food & Commercial Workers Int'l Union

• Citation: 883 F.3d 636
• Decision Date: 22 February 2018
• Docket Number: No. 17-1864,17-1864
• Parties: Robbie OHLENDORF; Sandra Adams, and all others similarly situated, Plaintiffs–Appellants, v. UNITED FOOD & COMMERCIAL WORKERS INTERNATIONAL UNION, LOCAL 876, Defendant–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

883 F.3d 636

Robbie OHLENDORF; Sandra Adams, and all others similarly situated, Plaintiffs–Appellants,

v.UNITED FOOD & COMMERCIAL WORKERS INTERNATIONAL UNION, LOCAL 876, Defendant–Appellee.

No. 17-1864

United States Court of Appeals, Sixth Circuit.

Argued: February 1, 2018

Decided and Filed: February 22, 2018

Rehearing En Banc Denied April 2, 2018

ARGUED: Amanda K. Freeman, NATIONAL RIGHT TO WORK LEGAL DEFENSE FOUNDATION, INC., Springfield, Virginia, for Appellants. J. Douglas Korney, LAW OFFICES OF J. DOUGLAS KORNEY, Farmington Hills, Michigan, for Appellee. ON BRIEF: Amanda K. Freeman, William L. Messenger, Glenn M. Taubman, NATIONAL RIGHT TO WORK LEGAL DEFENSE FOUNDATION, INC., Springfield, Virginia, for Appellants. J. Douglas Korney, LAW OFFICES OF J. DOUGLAS KORNEY, Farmington Hills, Michigan, for Appellee.

Before: SUTTON, KETHLEDGE, and LARSEN, Circuit Judges.

SUTTON, Circuit Judge.

The Labor Management Relations Act makes it a crime for an employer to deduct union dues from an employee's paycheck and for the union to accept the dues, except if the employee consents by signing an authorization form, often called a dues checkoff. Robbie Ohlendorf and Sandra Adams signed dues checkoff authorizations with their employer in 2013. When they tried to revoke them three years later, they did not follow the protocol for revoking their consent, and the union insisted that they do so. Ohlendorf and Adams sued the union in response. Their putative class action lawsuit seeks damages and injunctive relief on the ground that the union violated the Act and its duty of fair representation. The district court dismissed the complaint as a matter of law. Because this criminal law does not create a private right of action and because the union did not act arbitrarily or in bad faith, we affirm.

I.

Ohlendorf and Adams worked for Oleson's Food Stores in Michigan. The collective bargaining agreement between Oleson's and Local 876 of the United Food & Commercial Workers Union allowed Oleson's to deduct union dues from their employees' paychecks if the employee signed an authorization form. The form provided that the checkoff authorization would be irrevocable for one year or until the termination date of the agreement, whichever occurred sooner, and thereafter for yearly periods unless revoked by certified mail during a 15–day window each year.

Ohlendorf and Adams joined the union in 2013 and signed the authorization forms. Three years later, they resigned their membership and tried to revoke their permission. But they sent their written revocations by regular mail, not certified mail, and did so outside of the 15–day period for revoking authorization. The union refused to accept the revocations for that year. The company thus continued to deduct union dues from their wages, and the union continued to accept the payments.

Ohlendorf and Adams filed a class action against the union, claiming it violated the Labor Management Relations Act by imposing conditions on their ability to revoke their authorizations and violated its duty of fair representation by enforcing those conditions. They sought damages and injunctive relief. The district court dismissed the complaint as a matter of law, prompting this appeal. While the appeal was pending, Adams successfully revoked her authorization and Ohlendorf quit working at Oleson's.

II.

Article III of the United States Constitution empowers the federal courts to hear only cases or controversies, U.S. Const. art. III, § 2, cl. 1, "a cradle-to-grave requirement" that must be satisfied at the time a claimant files a lawsuit and must remain throughout the life of the case, Fialka–Feldman v. Oakland Univ. Bd. of Tr. , 639 F.3d 711, 713 (6th Cir. 2011). If something happens that makes it "impossible" to grant "effectual relief" with respect to a claim, that claim must be dismissed as moot. Church of Scientology of Cal. v. United States , 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992).

Events have mooted one of the claims filed by Ohlendorf and Adams. They asked the district court to enjoin the union from enforcing the window-period and certified-mail requirements. But Ohlendorf no longer works for Oleson's and Adams recently revoked her authorization. An injunction on this score thus would not do them any good. While that forward-looking claim is moot, the employees' backward-looking request for damages—the money they paid to the union after the union refused to honor their attempts to revoke—lives on.

III.

Section 302 of the Labor Management Relations Act makes it a crime for an employer to willfully give money to a labor union, 29 U.S.C. § 186(a), and for a labor union to willfully accept money from an employer, id. § 186(b). The prohibition contains several exemptions. Pertinent here, the Act exempts "money deducted from the wages of employees in payment of membership dues in a labor organization" if "the employer has received from each employee, on whose account such deductions are made, a written assignment." Id. § 186(c)(4). Under the exception, written assignments "shall not be irrevocable for a period of more than one year, or beyond the termination date of the applicable collective agreement, whichever occurs sooner." Id.

The Attorney General has authority to enforce this criminal statute. But he has not done so with respect to these allegations. Nor have Ohlendorf and Adams filed a charge with the National Labor Relations Board that the union or their employer has committed an unfair labor practice.

What we have instead is a civil lawsuit filed by Ohlendorf and Adams in federal district court to enforce this criminal statute. That is not an everyday event in the federal courts. Before individuals may file such a lawsuit, they must identify a statutory cause of action that allows them to do so. Alexander v. Sandoval , 532 U.S. 275, 286, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). They point to no such law, and under basic customs of statutory interpretation no such right of action exists.

"An express federal cause of action states, in so many words, that the law permits a claimant to bring a claim in federal court." Traverse Bay Area Intermediate Sch. Dist. v. Mich. Dep't of Educ. , 615 F.3d 622, 627 (6th Cir. 2010). Nothing in § 302 says that private parties may enforce the law. The relevant language imposes federal criminal penalties on parties who willfully violate the statute: a criminal fine up to $15,000 or imprisonment up to five years. 29 U.S.C. § 186(d). That is a form of relief usually enforced by the federal government, not private parties. The section about "Penalties for violations" says nothing about civil remedies.

That leaves the possibility of an implied right of action. But that is an increasingly rare creature, one that requires us to infer that Congress created a private right and provided for a private remedy , all without taking the conventional route of doing so expressly. See generally Ziglar v. Abbasi , ––– U.S. ––––, 137 S.Ct. 1843, 1855–58, 198 L.Ed.2d 290 (2017) ; Rancho Palos Verdes v. Abrams , 544 U.S. 113, 119–20, 125 S.Ct. 1453, 161 L.Ed.2d 316 (2005).

Section 302 does not confer any individually enforceable right, "phrased in terms of the persons benefited." Gonzaga Univ. v. Doe , 536 U.S. 273, 284, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002) (quotations omitted). Much less does the provision do so clearly. "[I]f Congress wishes to create new rights enforceable under [an implied private right of action], it must do so in clear and unambiguous terms." Id. at 290, 122 S.Ct. 2268.

How, one might wonder, does Congress "imply" a right of action in "clear and unambiguous terms"? The answer is that the rights-creating language must be "clear and unambiguous." McCready v. White , 417 F.3d 700, 703 (7th Cir. 2005). "Rights," it also deserves mention, differ from the "broader or vaguer ‘benefits’ or ‘interests’ " that some statutes create. Rancho Palos Verdes , 544 U.S. at 119–20, 125 S.Ct. 1453. Statutes that ban conduct but do not identify specific beneficiaries do not suffice. Sandoval , 532 U.S. at 289, 121 S.Ct. 1511.

The concrete usually beats the abstract. Some examples may help. On the permissible side of the line: A statute that says "[n]o person in the United States shall ... be subjected to discrimination" on the basis of race creates an individual right to be free from race discrimination. Cannon v. Univ. of Chicago , 441 U.S. 677, 691, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). And a statute that reads "[n]o person in the United States shall, on the basis of sex, ... be subjected to discrimination" creates an individual right to be free from sex discrimination. Id. Both statutes clearly spell out the rights and beneficiaries and thus suffice to create implied rights of action.

On the impermissible side of the line: A statute prohibiting the funding of "any educational agency or institution which has a policy or practice of permitting the release of education records" creates no rights at all, even though some people (students) might benefit from the statute and might have an interest in enforcing it. Gonzaga , 536 U.S. at 287–88, 122 S.Ct. 2268. Neither does a statute that authorizes federal agencies "to effectuate the provisions of [a ban on intentional race discrimination] ... by issuing rules, regulations, or orders of general applicability." Sandoval , 532 U.S. at 288–89, 121 S.Ct. 1511. Nor a statute that says "[t]he chief State election official ... shall enter into an agreement to match information in the database of the statewide voter registration system with information in the database of the motor vehicle authority." Brunner v. Ohio Republican Party , 555 U.S. 5, 5, 129 S.Ct. 5, 172 L.Ed.2d 4 (2008) (per curiam). Nor a statute that requires state governments to "substantially comply" with federal requirements to receive federal funds under Title IV–D of the Social Security Act. Blessing v. Freestone , 520 U.S. 329, 344, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997). Nor...