United Food and Commercial Workers Intern. Union, Local 751 v. Brown Group, Inc.

Decision Date25 May 1995
Docket NumberNo. 94-1929,94-1929
Citation50 F.3d 1426
Parties, 129 Lab.Cas. P 11,303, 10 IER Cases 705 UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, LOCAL 751, as representative of the aggrieved employees, Appellant, v. BROWN GROUP, INC., doing business as Brown Shoe Co., Appellee. International Union, United Automobile, Aerospace & Agricultural Implement Workers of America; Oil, Chemical and Atomic Workers International Union; United Mine Workers of America, International Union; The Guild/Sugar Law Center for Economic and Social Justice, Amicus Curiae.
CourtU.S. Court of Appeals — Eighth Circuit

Renee L. Bowser, Asst. Atty. Gen., argued, for appellant United Food and Commercial Workers Intern. Union.

Kary L. Moss, Detroit, MI, argued, for amicus curiae Guild/Sugar Law Center for Economic and Social Justice.

Michelle M. Cain, St. Louis, MO, argued (James N. Foster, Jr., on the brief), for appellee.

Before BOWMAN and LOKEN, Circuit Judges, and BOGUE, * Senior District Judge.

BOWMAN, Circuit Judge.

The United Food and Commercial Workers Union, Local 751 (UFCW or union) appeals from the judgment of the District Court 1 granting the motion to dismiss filed by Brown Group, Inc., d/b/a Brown Shoe Company. We affirm.


Brown Shoe mailed a letter dated January 17, 1992, to an employee of the United Food and Commercial Workers International, but not to Local 751, advising the union that Brown Shoe's plant in Dixon, Missouri, would be closed, with displacement of the 277 workers in the plant beginning on March 20, 1992. The UFCW alleges that Brown Shoe began to terminate workers immediately after sending the letter.

On June 16, 1992, the union filed suit in the District Court pursuant to the Worker Adjustment and Retraining Notification Act (WARN Act), 29 U.S.C. Secs. 2101-2109 (1988), seeking money damages. Under ordinary circumstances, the WARN Act requires that an employer give sixty days notice of plant closure or mass layoff to the employee representatives (or to each employee, if there is no representative) and to certain government entities. 29 U.S.C. Sec. 2102(a). The UFCW claims that the plant closure notice to the International union was inadequate under the WARN Act and that, even if the notice was proper, the employees represented by the UFCW were discharged before sixty days had elapsed, in violation of 29 U.S.C. Sec. 2102.

On July 29, 1992, Brown Shoe filed a motion to dismiss in accordance with Federal Rule of Civil Procedure 12, challenging the union's standing to bring the suit. The District Court granted the motion on April 12, 1993. Ten days later, on April 22, the UFCW filed a motion to alter or amend the judgment, Fed.R.Civ.P. 59(e), asking the court either to allow the union's suit to proceed or to allow the UFCW thirty days to amend its complaint so it could request declaratory relief and add individual plaintiffs. That motion was denied on March 7, 1994. The UFCW appeals and we affirm. 2


The District Court determined that the UFCW alleged no injury to itself, which must be shown by a plaintiff in order to demonstrate direct or individual standing, and had not met the constitutional test to assert indirect or associational standing on behalf of its members. See Pennell v. City of San Jose, 485 U.S. 1, 7, 108 S.Ct. 849, 855, 99 L.Ed.2d 1 (1988) (noting these two types of standing). We review these conclusions of law de novo. Howe v. Ellenbecker, 8 F.3d 1258, 1261 (8th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1373, 128 L.Ed.2d 49 (1994). Because Brown Shoe challenged the UFCW's standing based only on the complaint, we " 'accept as true all material allegations of the complaint, and ... construe the complaint in favor of the complaining party.' " Pennell, 485 U.S. at 7, 108 S.Ct. at 855 (quoting Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975)).

The union argues that its standing derives from the WARN Act, which provides:

A person seeking to enforce such liability, including a representative of employees or a unit of local government aggrieved under paragraph (1) or (3), may sue either for such person or for other persons similarly situated, or both, in any district court of the United States for any district in which the violation is alleged to have occurred, or in which the employer transacts business.

29 U.S.C. Sec. 2104(a)(5). A "representative" under the statute is "an exclusive representative of employees" as defined in certain of the federal labor laws. Id. Sec. 2101(a)(4). It is undisputed that the UFCW is such a representative and thus is entitled to bring suit under the WARN Act, but it does not necessarily follow that the union has standing. "Standing does not refer simply to a party's capacity to appear in court," but rather to " 'whether the particular plaintiff is entitled to an adjudication of the particular claims asserted.' " International Primate Protection League v. Administrators of Tulane Educ. Fund., 500 U.S. 72, 77, 111 S.Ct. 1700, 1704, 114 L.Ed.2d 134 (1991) (quoting Allen v. Wright, 468 U.S. 737, 752, 104 S.Ct. 3315, 3325, 82 L.Ed.2d 556 (1984)) (emphasis added by the Supreme Court).

The burden is on the person seeking to invoke the jurisdiction of the federal court to demonstrate that he has standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). A federal statute may give a putative plaintiff the right to bring suit, thus relieving him of the judicially-created, prudential standing requirements, 3 Warth, 422 U.S. at 501, 95 S.Ct. at 2206, but the party seeking to have his claim heard nevertheless must comply with the Article III constitutional case or controversy requirements. Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 100, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979). "In no event ... may Congress abrogate the Art. III minima...." Id. The constitutional inquiry is the same whether it is an individual or an organization seeking to assert standing. Havens Realty Corp. v. Coleman, 455 U.S. 363, 378, 102 S.Ct. 1114, 1124, 71 L.Ed.2d 214 (1982).


While the UFCW contends in its brief on appeal that it has individual standing to bring this suit, Brown Shoe asks us not to consider this issue, arguing that the union did not plead or raise the question of its direct standing to sue until the complaint was dismissed, and thus is now precluded from doing so. Brown Shoe's argument is of no avail. In concluding that the union "ha[d] not alleged any injury to itself," the District Court did rule on the UFCW's direct standing, however summarily. UFCW Local 751 v. Brown Group, Inc., 820 F.Supp. 1192, 1193 (E.D.Mo.1993). Thus we may properly consider the issue on appeal.

"A plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Allen, 468 U.S. at 751, 104 S.Ct. at 3324. We have some doubt that the UFCW's complaint alleges "personal injury" that comports with the constitutional requirement. 4 The gravamen of the union's claim clearly is injury to its members that resulted from the alleged failure of notice. See Complaint at p 1 ("This is an action for monetary damages against Brown Group, Inc. ... for its failure to provide wages and benefits...."); id. at p 5 ("Plaintiff is the certified exclusive bargaining representative of the aggrieved Brown Shoe employees on whose behalf the relief prayed for herein is sought...."); id. at p 6 ("This action is filed by Plaintiff on behalf of 277 employees of Defendant's Dixon plant who were represented by Plaintiff...."); id. at p 9 (alleging that most of the union employees are "aggrieved" within the meaning of the WARN Act and noting attached list identifying "aggrieved employees").

In its brief, however, the UFCW claims that "the Union was injured in its right to notice prescribed by statute," Brief for Appellant at 2, and the UFCW does allege in its complaint that the notice given by Brown Shoe did not comply with the notice requirement of the WARN Act because the individual to whom the notice was sent "is not the exclusive representative of the affected employees," Complaint at p 7. Thus, construing the complaint in the manner most favorable to the union, as we must, we will assume that its allegation of failure of statutory notice alleges an injury to the union itself. See Warth, 422 U.S. at 500, 95 S.Ct. at 2206 ("The actual or threatened injury required by Art. III may exist solely by virtue of 'statutes creating legal rights, the invasion of which creates standing....' ") (quoting Linda R.S. v. Richard D., 410 U.S. 614, 617 n. 3, 93 S.Ct. 1146, 1149 n. 3, 35 L.Ed.2d 536 (1973)). Arguably, the union has alleged "an invasion of a legally protected interest" that is concrete and actual. Northeastern Fla. Chapter of the Associated General Contractors of Am. v. City of Jacksonville, Fla., --- U.S. ----, ----, 113 S.Ct. 2297, 2302, 124 L.Ed.2d 586 (1993).

The second constitutional element of direct standing, that the injury be fairly traceable to the alleged conduct of the defendant, is not an issue in this case. As for the third factor, however, we conclude that the relief the UFCW requests will not redress the union's asserted injury.

The UFCW asks for backpay and fringe benefits for the aggrieved employees, its own attorney fees and costs in bringing the suit (the discretionary award of which is provided by statute, 29 U.S.C. Sec. 2104(a)(6)), and "such other and further relief on its behalf and that of the aggrieved employees as may be proper." Complaint at p 10. It is the catch-all prayer for relief that the UFCW claims will redress the alleged failure of notice to the union. We disagree. We do not think that the boilerplate remedies language quoted above, broad and non-specific as it is,...

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