REMINGTON LODGING HOSPITALITY, LLC v. AHEARN (D.Alaska 10-28-2010)

neral Counsel's office in Washington. Neither the statute nor the regulations provide any further means of review. Accordingly, courts have held that the General Counsel's decision "not to file an unfair labor practices complaint is not judicially reviewable."

Id. at 6.

NLRB v. United Food Comm. Workers Union, 484 U.S. 112, 124-25 (1987) (quoting 29 U.S.C. § 153(d)).

29 C.F.R. §§ 101.5-6.

See United Food, 484 U.S. at 125-26 (noting that the "decisions whether to file a complaint are prosecutorial" and thus, represent an exercise of "unreviewable discretion").

Id. at 118-19 (citing 29 CFR § 101.6).

See id.

Sparks v. NLRB, 835 F.2d 705, 706-07 (7th Cir. 1987) (calling this "a bedrock principle of labor law" and citing NLRB v. Sears, Roebuck Co., 421 U.S. 132, 138-39 (1975)).

Here, Respondent dismissed Petitioner's ULP charge and Petitioner appealed to the General Counsel, who upheld Respondent's decision. After the initial hearings on the Union's ULP charges, Petitioner requested Respondent to "re-open" the dismissed ULP charge based on new testimony in the hearings. Respondent informed Petitioner that the proper way to make its request was to file a new charge. Petitioner has not done so.

Resp. Exs. 6-8.

Resp. Ex. 9.

At oral argument, Petitioner's counsel conceded that it does have a remedy. Petitioner simply does not like the required procedure. Petitioner's preferences are not sufficient to confer jurisdiction here. Petitioner has an adequate remedy which, to date, it has chosen not to pursue.

B. ULP Proceeding

Petitioner's requested relief includes requests to stay the ULP proceeding so that it may participate in the investigation of new ULP charges and the employees may vote on whether to decertify the Union. Petitioner also seeks to have charges related to the four reinstated employees dismissed. All of these requests concern the current ULP proceeding.

Dkt. 27 at 5-6.

Id. at 6.

Under the NLRA, a party may appeal an NLRB "final order" from a ULP proceeding in an appropriate circuit court of appeals. A party may also wait and contest the order when the NLRB seeks to enforce it by filing an action in the circuit court of appeals.

29 U.S.C. § 160(f).

Id. § 160(e). Where the appropriate circuit court of appeals is (or "are" if there are more than one) on vacation, the NLRB may seek enforcement in an appropriate district court. Id.

In Amerco v. NLRB, the Ninth Circuit held that the NLRA's review process "is the exclusive mechanism for federal court review of decisions made in unfair labor practice hearings." In Amerco, the plaintiff was the parent corporation of an employer involved in a ULP proceeding. After several weeks of hearings, the NLRB sought to add the plaintiff as a respondent in the proceeding. The ALJ granted the NLRB's request, providing the plaintiff with the opportunity to recall witnesses or challenge evidence to the extent that the evidence bore on its derivative liability, but not on the employer's underlying liability for the primary offenses. The plaintiff filed an action in the district court, seeking an injunction to halt the proceedings based on alleged due process violations. The district court found that it had no subject matter jurisdiction.

458 F.3d 883, 884 (9th Cir. 2006).

Id. at 885.

Id.

Id.

Id. at 886.

Id.

On appeal, the Ninth Circuit observed that the NLRA provides "exclusive jurisdiction in the courts of appeals to review errors arising from" ULP proceedings. The court also noted that the Supreme Court had previously held that district courts do not have authority to enjoin ULP hearings because the NLRA "allows an appellate court to consider `all questions of the jurisdiction of the Board and the regularity of its proceedings, and all questions of constitutional right or statutory authority.'" The court indicated that this procedure is consistent with the policy of administrative exhaustion, which enables agencies to correct their mistakes before courts intervene and allows agencies to create a complete administrative record for judicial

Id. at 887 (citing 29 U.S.C. § 160(f)).

Id. (quoting Myers Bethlehem Shipbuilding Corp., 303 U.S. 41, 49 (1938)).

review. In the absence of the exhaustion requirement, a party could substantially delay proceedings by seeking injunctive relief in the middle of the NLRB process.

Id. at 888 (citation omitted).

Id. at 887-88.

In spite of the statutory text, Supreme Court precedent, and policies favoring administrative exhaustion, the plaintiff in Amerco argued that the district court could exercise jurisdiction under the judicially created exceptions to the general prohibition under Leedom v. Kyne and Fay v. Douds. In Leedom, the Supreme Court permitted a district court to enjoin the NLRB from acting in a manner that it had conceded violated its statutory directive. In Fay, the Second Circuit suggested that a district court could exercise jurisdiction where a party asserts a non-frivolous constitutional violation.

Id. at 886, 888-89 (citing Leedom v. Kyne, 358 U.S. 184 (1958), and Fay v. Douds, 172 F.2d 720 (2d Cir. 1949)).

358 U.S. 184, 185-91 (1958).

172 F.2d 720, 723 (2d Cir. 1949)

The Ninth Circuit noted that both Leedom and Fay arose in the context of NLRB representation proceedings under NLRA § 9, not ULP proceedings under § 10. Unlike ULP proceedings, representation proceedings are not directly reviewable in federal court. Thus, the Leedom and Fay decisions stand for the proposition that "the district court has jurisdiction to enter injunctive relief against certain representation decisions when a party's statutory or constitutional rights otherwise might never be vindicated." The Ninth Circuit further observed that the Supreme Court had more recently limited the Leedom exception to instances where the complaining party had no meaningful opportunity for judicial review. Thus, the court held "that the Leedom and Fay exceptions do not apply outside the context of Section 9 actions or other situations in which meaningful judicial review is unavailable."

458 F.3d 883, 888-89 (9th Cir. 2006).

Id.

Id. at 889.

Id. at 889 (citing Board of Governors of the Fed. Reserve Sys. v. MCorp Fin., Inc., 502 U.S. 32, 43 (1991)).

Id. at 889-90.

In its reply memorandum, Petitioner attempts to limit the holding of Amerco by suggesting that it only applies where the complaining party has not exhausted its remedies. Petitioner also argues that Amerco is distinguishable because it is not requesting the Court here to completely enjoin the underlying ULP proceeding, and therefore, issuing a writ of mandate will not "will not affect the record or prevent the NLRB from correcting any errors that may surface in the proceedings." At oral argument, the Court asked Petitioner's counsel to address the Amerco case. Counsel argued that Amerco did not apply to a "denial of administrative due process," using the blocking charge rule as an example.

Dkt. 41 at 12.

Id. at 12-13. Petitioner also relies on McCormick v. Hirsch, 460 F. Supp. 1337 (M.D. Pa. 1978), which the Ninth Circuit considered and rejected in Amerco. 458 F.3d 883, 890 (9th Cir. 2006).

Petitioner's arguments are not persuasive. Amerco is squarely on point and controls this Court's decision. The Ninth Circuit has explicitly stated that a denial of alleged constitutional rights (per Fay) does not apply to a review of a ULP proceeding. This is because Petitioner

necessarily has an opportunity for meaningful judicial review after a final order is issued under § 10's procedures. Moreover, the writ of mandate requested by Respondent here prior to the natural conclusion of the ULP proceedings would wreak just as much havoc with the proceedings as completely enjoining them would. Respondent's invocation of the blocking charge rule, which relates to the decertification petition, does not provide any jurisdictional grounds for reviewing the ULP proceeding outside of the NLRA's statutory framework.

Accordingly, the Court lacks jurisdiction over Petitioner's request for it to intervene in the ULP proceeding.

C. Decertification Petition

Although Amerco disposes of Petitioner's request to the extent that it applies to the ULP proceeding, Amerco left open the possibility that a district court may review decisions on representation issues because there is no similar procedure for direct review of those decisions in the NLRA. Prior Ninth Circuit precedent also supports the proposition that district courts may have jurisdiction to review NLRB representation proceedings where the agency has exceeded or clearly violated its statutory powers or where there is a "substantial showing" that the complaining party's constitutional rights have been violated, per Leedom and Fay. This Court must therefore determine whether the Respondent's invocation of the blocking charge rule to defer its consideration of the decertification petition either exceeds or clearly violates the NLRB's statutory powers or whether the Petitioner has made a "substantial showing" that the Respondent's action violates its constitutional rights. As explained below, the Court concludes that neither exception is satisfied.

See Amerco, 458 F.3d at 888-90.

See Teamsters, Chauffeurs Delivery Drivers, Local 690 v. NLRB, 375 F.2d 966, 969 (9th Cir. 1967) (citing Leedom v. Kyne, 358 U.S. 184 (1958), and Fay v. Douds, 172 F.2d 720 (2d Cir. 1949)). In the more recent Amerco decision, the Ninth Circuit did, however, also observe that the Sixth Circuit had completely rejected the Fay doctrine, leaving open the possibility that it may do so as well. See Amerco v. NLRB, 458 F.3d 883, 890 n. 5 (9th Cir. 2006) (citing Blue Cross Blue Shield of Mich. v. NLRB, 609 F.2d 240, 244-45 (6th Cir. 1979)).

Section 9(c) of the NLRA indicates that where a certification or decertification petition is filed, the NLRB "shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing upon due notice." If the NLRB finds that a question concerning representation exists, "it shall direct an election by secret ballot and shall certify the results thereof." Generally, NLRB decisions in representation matters are only reviewable to the extent that they are raised in the review of ULP proceedings. Congress did not intend for district courts to review representation decisions because the proceedings are non-adversarial. Thus, representation investigations and hearings are "particularly within the Board's discretion."

29 U.S.C. § 159(c).

Id.

See Bishop v. NLRB, 502 F.2d 1024, 1027 (5th Cir. 1974) (citing, inter alia, Boire v. Greyhound Corp., 376 U.S. 473, 476-77 (1964)).

Blanco v. NLRB, 641 F. Supp. 415, 417 (D.D.C. 1986); see also Bishop, 502 F.2d at 1027 n. 5 (quoting Boire, 376 U.S. at 477-78).

Blanco, 641 F. Supp. at 418 (quoting Newport News Shipbuilding Dry Dock v. NLRB, 633 F.2d 1079, 1081 (4th Cir. 1980)).

The NLRB's "blocking charge rule" provides that it may hold a decertification petition in abeyance pending its processing of ULP charges. In the absence of the blocking charge rule, an employer could potentially use unfair practices to foment employee dissatisfaction with the union. Thus, the employer could wrongfully prompt employees to decertify the union and moot any potential relief that might remediate the unfair practices. As the Fifth Circuit has explained:

See id. at 417.

See Bishop v. NLRB, 502 F.2d 1024, 1028 (5th Cir. 1974).

Id. at 1028-29.

It would be particularly anomalous, and disruptive of industrial peace, to allow the employer's wrongful refusal to bargain in good faith to dissipate the union's strength, and then to require a new election which would not be likely to demonstrate the employees' true, undistorted desires.

Thus, where a petition to decertify the union is related to the ULP charges, the "blocking charge rule" prioritizes the agency's consideration of the ULP charges to ensure that any decertification proceedings are handled in an uncoerced environment.

See id. at 1028-29.

Petitioner argues that Respondent has violated its statutory duties because it has not held a hearing on the decertification petition. Petitioner relies heavily on the Fifth Circuit's decision in Surratt v. NLRB in support of its argument. In Surratt, the regional director had dismissed a decertification petition pursuant to the blocking charge rule. The NLRB affirmed the regional director's decision "solely" based on the fact that a ULP complaint had been issued. The district court found that it had jurisdiction and directed the court to investigate the decertification petition and to hold a hearing if it concluded that there was "reasonable cause to believe that a question of representation affecting commerce exists[.]" The Fifth Circuit affirmed, finding that the Board had violated its "clear duty" to investigate the decertification petition by "mechanical[ly]" applying the blocking charge rule.

463 F.2d 378 (5th Cir. 1972).

Id. at 380.

Id.

Id. at 380-81.

Id. at 381; see also Templeton v. Dixie Color Prtg. Co., 444 F.2d 1064, 1065-66, 1069-70 (5th Cir. 1971) (finding that district court had jurisdiction pursuant to Leedom under the "peculiar" facts there where the decertification petition had been held in abeyance for three years and accordingly, the NLRB had failed to carry out its "specific mandate" to investigate the petition).

Subsequent Fifth Circuit precedent, however, has explained that the Surratt's holding is narrow and only applies where the NLRB applies the blocking charge rule in a "mechanical" and "utterly arbitrary" manner. Moreover, these decisions explain that the NLRB's duty is to "investigate" first, and then only hold a hearing after it determines that "reasonable cause to believe that a question of representation affecting commerce exists[.]" Other courts have

Bishop v. NLRB, 502 F.2d 1024, 1029-32 (5th Cir. 1974); see also Formosa Plastics Corp, La., v. Kaplan, 87 F.3d 1311, No. 95-31049, 1996 WL 335508, at *2 (5th Cir. May 14, 1996).

See NLRB v. Big Three Indus., Inc., 497 F.2d 43, 54 (5th Cir. 1974); 29 U.S.C. § 159(c). Notably, although NLRB precedent suggests that Respondent may not dismiss a decertification petition without holding a hearing, see Saint Gobain Abrasives, Inc., 342 N.L.R.B. 49 (2004), Petitioner cites no statutory provision requiring Respondent to hold a hearing before deferring a determination on a decertification petition. Nor does the Ninth Circuit's decision in East Bay Automotive Council v. NLRB, 483 F.3d 628, 634 (9th Cir. 2007), require a hearing before Respondent invokes the blocking charge rule. Although that decision, which was under review pursuant to NLRA § 10(e) and (f), discussed the "Master Slack" factors the NLRB uses to substantively evaluate a ULP charge related to an employer's withdrawal of recognition of the union as exclusive collective bargaining agent, it did not purport to require the NLRB to consider those factors before invoking the procedural blocking charge rule. See id.; see also Albertson's, Inc. v. NLRB, 161 F.3d 1231, 1238-39 (10th Cir. 1998) (suggesting that the NLRB need not make a finding that a petition was "tainted" under the "Master Slack" analysis before employing the blocking charge procedure).

agreed that jurisdiction only exists where the NLRB "completely abrogates" its statutory responsibility to conduct an investigation.

Newport News Shipbuilding Dry Dock v. NLRB, 633 F.2d 1079, 1082 (4th Cir. 1980); see also Blanco v. NLRB, 641 F. Supp. 415, 418-19 (D.D.C. 1986).

Petitioner also relies on the District of Nevada's decision in Sparks Nugget, Inc. v. Scott. In Sparks Nugget, the regional director had invoked the blocking charge rule, holding petitioner's decertification petition in abeyance for over a year. The court concluded that it had jurisdiction under Leedom because the NLRB had failed to process the petition as required by the statute. The court also found that it had jurisdiction under Fay because the petitioner contended that the NLRB's delay constituted a "clearly colorable" due process violation. In doing so, the court relied on the Middle District of Pennsylvania's decision in McCormick v. Hirsch. After finding that it had jurisdiction, the Sparks Nugget court, however, ultimately found that the NLRB had satisfied the "minimal standard" under the statute that required it to investigate the decertification petition and decide to whether to invoke the blocking charge rule.

583 F. Supp. 78 (D. Nev. 1984).

Id. at 80-81.

Id. at 81.

Id. at 82.

Id. (citing 460 F. Supp. 1337, 1347 (M.D. Pa. 1978)).

Id. at 83.

Also within this Circuit, however, the Western District of Washington reached the opposite conclusion in McKesson Corp. v. NLRB. There, the regional director dismissed an employee's previously filed decertification petition after issuing a ULP complaint alleging that the employer solicited the employees to sign the decertification petition. After the complaint was subsequently dismissed at the union's request, the regional director refused to reinstate the petition because it concluded that it remained "tainted." The court found that it had no jurisdiction under Leedom because § 9 "does not dictate the scope" of the NLRB's investigation and therefore, the employer could not "identify a specific statutory provision violated by the Director or the Board in dismissing the decertification petition." The court also concluded that the employer's allegation that the NLRB's failure to properly investigate the petition and hold a hearing violated its due process rights did not amount to a "strong and clear showing" necessary for jurisdiction under the Fay exception.

No. C96-1230R, 1996 WL 780552, at *1-2 (W.D. Wash. 1996).

Id. at *1.

Id.

Id.

Id. at *2.

This Court cannot conclude that Respondent's invocation of the blocking charge rule either clearly violates his statutory powers or demonstrably violates Petitioner's constitutional rights. Respondent did not apply the blocking charge rule mechanistically. Indeed, Respondent has alleged that Petitioner unlawfully withdrew recognition of the union as the exclusive bargaining representative and coerced employees to sign the decertification petition. These actions, if true, could have plainly created a "tainted" environment. Consequently, Respondent did not fail to carry out his statutory duties and there is no jurisdiction under the narrow Leedom exception.

See Resp. Ex. 11.

Additionally, Petitioner has not made a substantial showing that the Respondent's invocation of the blocking charge rule (even if an employer can assert that Respondent's alleged failure to process an employee's decertification petition violates the employer's due process rights) violates its constitutional due process rights. Unlike Sparks Nugget, here there has been no significant delay in processing the decertification petition. To the contrary, the decertification petition was filed on the same day that Petitioner filed this lawsuit. Moreover, Sparks Nugget relied on McCormick, which courts in this Circuit and the Third Circuit have treated with skepticism.

One day before the scheduled argument, the employee that filed the decertification petition moved to intervene. Dkt. 46. That motion is not yet ripe. This same employee filed a motion to intervene in the ULP proceeding. Pet. Ex. 8.

Amerco v. NLRB, 458 F.3d 883, 890 (9th Cir. 2006); Bakery, Confectionary Tobacco Workers' Int'l Union, Local 6 v. NLRB, 799 F. Supp. 507, 511 (E.D. Pa. 1992) (questioning the viability of McCormick in light of more recent Third Circuit precedent and stating that "there is no reason to conclude that [the Fay] exception is or will be recognized in the Third Circuit").

Regardless, here, Petitioner has an adequate remedy. Respondent has issued a complaint on the Union's charge alleging that Petitioner unlawfully withdrew recognition of the Union as the employees' exclusive collective bargaining agent. Prior to an enforcement proceeding under § 10(e), Respondent cannot compel Petitioner to recognize the Union. Petitioner will be able to seek review of any agency determinations under NLRA § 10(f) or contest them in an enforcement action under § 10(e).

Resp. Ex. 2.

See Grutka v. Barbour, 549 F.2d 5, 10 (7th Cir. 1977) ("If the Union wins this election and is certified by the Board, the [employer] may refuse to bargain with the Union and test the validity of the Board's jurisdiction in this Court. Similarly, if the union president should prevail in his unfair labor practice trial, the [employer] can defend an enforcement suit in this forum.").

29 U.S.C. § 160(e)-(f). As Respondent notes, Petitioner also has various means of appealing any ruling by the ALJ on the ULP charges and Respondent's representation decision to the NLRB. See Dkt. 37 at 16 (citing 29 C.F.R. §§ 102.26, 102.71(b)).

Accordingly, the Court has no jurisdiction over Petitioner's request to process the decertification petition.

D. Request for Declaratory Relief

Petitioner also seeks an order declaring that the NLRB may not seek injunctive relief under NLRA § 10(j). "Whether or not to grant a declaratory judgment is a matter committed to the sound discretion of the district court." Although the existence of other remedies does not preclude declaratory relief, "[d]eclaratory relief should be denied when it will neither aid in clarifying and settling legal relations in issue nor terminate the proceedings and afford the parties relief from the uncertainty and controversy they face." When a declaratory judgment is sought, courts must also keep in mind that there must be an "actual controversy." When reviewing administrative determinations, courts must be particularly careful not to unnecessarily entangle themselves in abstract disagreements over agency policy and interfere with unformalized agency decisions.

Greater L.A. Council on Deafness, Inc. v. Zolin, 812 F.2d 1103, 1112 (9th Cir. 1987).

Id.

28 U.S.C. § 2201; see also John S. Griffith Constr. Co. v. United Bhd. of Carpenters Joiners of S. Cal., 785 F.2d 706, 714 (9th Cir. 1986) (citations omitted).

National Park Hospitality Assoc. v. Department of the Interior, 538 U.S. 803, 807-08 (2003) (citing Abbot Labs. v. Gardner, 387 U.S. 136, 148-49 (1967)).

Here, in essence, Petitioner has asked this Court to enjoin the NLRB from seeking to enjoin Petitioner at some indefinite point in the future. Respondent has indicated that it has not decided whether to pursue injunctive relief against Petitioner and, in any event, that any such relief does not overlap with the measures that Petitioner has already agreed to take in alleged settlement of one of the ULP charges.

Dkt. 37 at 5 n. 8, 20-21.

At oral argument, Petitioner's counsel conceded that it would have the right to challenge any injunctive relief in a future proceeding under § 10(j) should the NLRB commence such an action. He indicated that Petitioner was only seeking this relief because Respondent has been holding the possibility of seeking injunctive relief over Petitioner's head like the sword of Damocles in the ULP proceeding.

It would be irresponsible of this Court to attempt to predict what issues may arise in a future action between the NLRB and Petitioner under § 10(j). It would be even more irresponsible of the Court to attempt to resolve those issues at this time. In any event, Petitioner has conceded that it has an adequate alternate remedy. Accordingly, the Court has no jurisdiction to issue the declaratory judgment requested by Petitioner.

E. Other Contentions

Throughout its over-length Memorandum of Points and Authorities, Petitioner suggests that various NLRB procedures and Respondent's "biased" treatment of it violate its constitutional due process rights. The Court has examined these contentions and finds them to be irrelevant and inapposite to the question of whether this Court has jurisdiction. These scattershot allegations, which are only tangentially related to Petitioner's requested relief, do not amount to a "strong and clear showing" of a constitutional violation. In any event, they can all be addressed under the existing statutory scheme.

See L. Civ. R. 10.1(m).

29 U.S.C. § 10(e)-(f).

IV. CONCLUSION

For the foregoing reasons, the Court DENIES Petitioner's request for a writ of mandate, GRANTS Respondent's motion to dismiss under Rule 12(b)(1), and DISMISSES the petition. All other pending motions are DENIED as moot.