University of Vermont v. State of Vt.
| Decision Date | 09 May 1990 |
| Docket Number | Civ. A. No. 88-179. |
| Citation | 748 F. Supp. 235 |
| Parties | UNIVERSITY OF VERMONT and State Agricultural College and National Labor Relations Board, Plaintiff-Intervenor, v. STATE OF VERMONT and Charles H. McHugh, Chairman, Vermont Labor Relations Board and Vermont-NEA, Defendant-Intervenor. |
| Court | U.S. District Court — District of Vermont |
Arthur P. Menard, Chelsea, Mass., Lee Liggett, Gen. Counsel, University of Vermont, Burlington, Vt., for plaintiff.
Geoffrey Yudien, Asst. Atty. Gen., State of Vt., Montpelier, Vt., for defendant State of Vt.
James S. Suskin, Montpelier, Vt., for defendant Vermont-NEA.
Margery E. Lieber, Corinna L. Metcalf, N.L.R.B., Washington, D.C., R. Jeffrey Behm, Asst. U.S. Atty., Burlington, Vt., for N.L.R.B.
This suit is an action for declaratory judgment brought by the University of Vermont and State Agricultural College (the "University") against the State of Vermont (the "State"). In this action, the University seeks an order that 1987, No. 177 (Adj.Sess.), "An Act Relating to Labor Relations and the University of Vermont" ("H. 328"), is violative of the Supremacy Clause of the United States Constitution and is preempted by the National Labor Relations Act (the "NLRA" or the "Act"). The National Labor Relations Board (the "Board") was granted intervenor status and moved to dismiss the University's complaint. For the reasons stated below, the motion of the Board is granted and the University's complaint is dismissed.
In early 1988, the Vermont General Assembly passed H. 328, "An Act Relating to Labor Relations and the University of Vermont," amending 3 V.S.A. § 901 et seq. This legislation purportedly made the University and its employees subject to the Vermont Labor Relations Act. The governor signed the bill into law, effective July 1, 1988. See 1987, No. 177 (Adj.Sess.).
On July 14, 1988, the University filed a suit in this court against the State of Vermont seeking a declaratory order that H. 328 is preempted by the NLRA. The State filed a motion to dismiss, claiming that (1) declaratory judgment was inappropriate in this case because the Board alone is charged with deciding its jurisdiction on a case-by-case basis; (2) the University employees were the real parties in interest and were not joined in the lawsuit; and (3) the eleventh amendment to the United States Constitution protected the State from suit by the University in federal court. The University opposed the State's motion to dismiss. On December 12, 1988, the Board filed a motion to intervene in the instant case, as well as a motion for a permanent injunction and declaratory judgment. The basis for these motions was that the Board had asserted jurisdiction over the University since 1976 and intended to continue doing so. See University of Vermont and State Agricultural College, 223 N.L.R.B. 423 (1976). At this juncture, the Board believed H. 328 was preempted by federal labor law.
On February 21, 1989, the Vermont Labor Relations Board petitioned the National Labor Relations Board for an advisory opinion regarding whether the Board would continue to assert jurisdiction over the University, arguing that the University was not an employer within the meaning of the National Labor Relations Act (the "NLRA" or the "Act"). Section 2(2) of the NLRA, codified at 29 U.S.C. § 152(2), states that, "the term `employer' includes any person acting as an agent of an employer, directly or indirectly, but shall not include ... any State or political subdivision thereof." In a 1976 certification decision, the Board had held that the University was "a private non-profit educational institution ... and not `a political subdivision' of the State." This finding was based on the "uncontroverted facts" presented by the University and a potential bargaining representative, both of whom consented to the Board's jurisdiction.1 The Board accepted the February 1989 petition and the parties agreed to stay the instant proceedings until the Board issued its advisory opinion.
In reaching its decision, the Board requested and received briefs and reply briefs from the University, the State and the Vermont-NEA2 addressing the issue of whether the University was a political subdivision of the State and hence not an employer under the NLRA. In its brief before the Board, the University "specifically reserved its right to request that the Board conduct hearings to properly adjudicate ... any factual dispute that may arise." Brief For the University Before the Board at 1-2. No hearing was held because the Board found the relevant facts as set out in the parties' written submissions to be "essentially undisputed" and adequate to resolve the question of the Board's jurisdiction. See University of Vermont and State Agricultural College, 297 N.L.R.B. No. 42 (1989) at 3.
On November 21, 1989, the Board issued its advisory opinion. The opinion held that the University was a political subdivision of the State and could not be an employer within the meaning of section 2(2) of the NLRA. Consequently, the Board concluded it could not assert jurisdiction over the University. See id.
The basis for the Board's opinion was that the University satisfied both prongs of the Supreme Court's test for determining whether an entity is a political subdivision.3 Of primary importance in the Board's analysis were the undisputed facts that (1) the University was created by a charter from the State, and (2) a majority of the University trustees were appointed by popularly-elected officials. The advisory opinion also noted numerous other undisputed connections between the University and the State.
On January 22, 1990, the Board filed its motion to dismiss that is the basis of this Opinion and Order. In that motion and subsequent memorandum, the Board argues that this court lacks subject matter jurisdiction to review the Board's decision, expressed in the advisory opinion, that the University is outside the Board's jurisdiction and that H. 328 is therefore not preempted by the NLRA.4
The University filed a response to the Board's motion on January 24, 1990. In this pleading the University claimed that:
Granting of such Motion to Dismiss would violate the University's inherent constitutional rights; would violate administrative due process; would violate the precepts of the preemption doctrine under the Supremacy Clause of the United States Constitution and, finally, would violate any and all rights of appeal from orders of the National Labor Relations Board.
University's Motion in Opposition at 1.
Resolution of this motion turns on whether and to what extent a district court has jurisdiction to review an advisory opinion of the Board issued in accordance with the Board's regulations. As far as our research reveals, this is an issue of first impression in the federal system. Because we believe that this court lacks subject matter jurisdiction to review the conclusions of the advisory opinion, and we find that due process was not violated by the lack of a hearing or judicial review in this case, the Board's motion to dismiss is granted.
The National Labor Relations Act was motivated by Congress' desire to ameliorate the disruptive effects of "industrial strife or unrest, which have the intent or the necessary effect of burdening or obstructing commerce." Findings and Declaration of Policy, 29 U.S.C. § 151. Congress determined that this policy goal could best be achieved by "encouraging the practice and procedure of collective bargaining." Id.
When the NLRA was considered by Congress, significant attention was invested in determining the proper role that courts should play in reviewing the collective bargaining process. In drafting the Wagner Act, which formed the basis of current federal labor law, Congress was influenced by the perceived inadequacies of the preceding National Industrial Recovery Act. The National Industrial Recovery Act allowed for direct judicial review of Labor Board investigations and certifications of collective bargaining units. Such direct review was seen as "productive of a large measure of industrial strife ...," and was particularly excluded from the Wagner Act. H.R.Rep. No. 1147, 74th Cong., 1st Sess. 7 (1935). See generally, Leedom v. Kyne, 358 U.S. 184, 191-94, 79 S.Ct. 180, 185-87, 3 L.Ed.2d 210 (1958) (Brennan, J., dissenting). Instead, section 9(d) of the Wagner Act allowed judicial review in the courts of appeals only after the filing of unfair labor practice charges. See 29 U.S.C. §§ 159(d), 160(e), (f). Thus, to obtain judicial review of Board certification proceedings, an employer would have to refuse to bargain with the Board-certified employee representative, thereby committing an unfair labor practice subject to judicial review in the courts of appeals.
When the Taft-Hartley amendments to the Wagner Act were considered in 1947, a House amendment provided for direct review of Board certification proceedings in the courts of appeals without requiring the somewhat cumbersome process of forcing an unfair labor practice before a circuit court could review the dispute. One reason proffered for implementing such immediate judicial review was that the absence of this remedy was "unfair to ... the union that loses a certification election, which has no appeal at all no matter how wrong the certification may be and to the employees, who also have no appeal." H.R. Rep. No. 245, 80th Cong., 1st Sess. 43 (1947). This amendment was rejected in conference with the Senate as being susceptible to abuse by parties seeking only to engage in "dilatory tactics" to avoid collective bargaining.5
Thus, in Congress' considered judgment, national labor policy would best be effectuated by only allowing eventual circuit court review of unfair labor practices, rather than by implementing immediate review in the district or circuit courts of Board actions concerning the Board's certification...
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