Richards v. National Labor Relations Board ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 12-1973 & 12-1984
D OUGLAS R ICHARDS, et al.,
Petitioners,
v.
N ATIONAL L ABOR R ELATIONS B OARD ,
Respondent,
and
U NITED S TEEL, P APER AND F ORESTRY,
R UBBER, M ANUFACTURING, E NERGY, A LLIED
INDUSTRIAL AND S ERVICE W ORKERS
INTERNATIONAL U NION, AFL-CIO/CLC, et al.,
Intervenors-Respondents.
On Petitions for Review of Decisions and Orders
of the National Labor Relations Board.
Nos. 25-CB-8891, 25-CB-9253,
25-CB-9254, 13-CB-18961, and 13-CB-18962.
A RGUED N OVEMBER 30, 2012—D ECIDED D ECEMBER 26, 2012
Before B AUER, R OVNER, and W ILLIAMS, Circuit Judges.
2 Nos. 12-1973 & 12-1984
W ILLIAMS, Circuit Judge. The labor unions in this consoli-
dated appeal allowed non-union members who were
part of their bargaining units to file objections if they
wished to opt out of paying dues used to support
political and other activities unrelated to collective bar-
gaining, contract administration, or grievance adjust-
ment, pursuant to CWA v. Beck, 487 U.S. 735 (1988). How-
ever, the unions required that these objections be
renewed on an annual basis if the employee wanted to
remain opted-out. Petitioners, nonmember employees
who were part of the unions’ bargaining units, filed
separate unfair labor practice charges against the
unions, arguing that these “annual renewal” policies
violated the unions’ duty of fair representation by
placing an undue burden on objectors, and they sought
an order striking down these policies. Although they
did not seek refunds for themselves because the Peti-
tioners were always opted-out, they also sought refunds
for other employees who may have filed objections at one
time, but failed to renew them. On appeal to the NLRB,
the Board struck down the unions’ annual renewal
policies, but did not grant Petitioners’ request for
refunds on behalf of others.
Petitioners challenge the NLRB’s decisions on the
merits and also argue that the April 2012 final NLRB
orders were not legitimate because the President’s
January 4, 2012 recess appointments of three of the
five NLRB members were invalid. We do not reach
these issues, however, because Petitioners lack standing
to bring this appeal since the NLRB struck down the
annual renewal policies which were the only source of
Nos. 12-1973 & 12-1984 3
injury each Petitioner suffered. Because Petitioners no
longer suffer an injury-in-fact and do not satisfy the
statutory “aggrieved” requirement, see 29 U.S.C. § 160(f),
we dismiss the petitions for review.
I. BACKGROUND
As the United States Supreme Court explained in CWA
v. Beck, 487 U.S. 735, 738 (1988), the National Labor Rela-
tions Act (“NLRA”) “permits an employer and an exclu-
sive bargaining representative to enter into an agree-
ment requiring all employees in the bargaining unit to
pay periodic union dues and initiation fees as a condi-
tion of continued employment, whether or not the em-
ployees otherwise wish to become union members.”
However, it held that expending collected fees on
activities “unrelated to collective bargaining, contract
administration, or grievance adjustment” over the objec-
tions of fee-paying nonmember employees was a viola-
tion of the union’s “duty of fair representation.” Id.
Those who make such objections are known as Beck
objectors.
So policies were implemented by United Steel, Paper
and Forestry, Rubber, Manufacturing, Energy, Allied
Industrial and Service Workers International Union, AFL-
CIO/CLC (“USW”); the International Brotherhood of
Electrical Workers, AFL-CIO (“IBEW”); and IBEW Local 34
to allow nonmember employees to file objections, which
would result in a reduction of the Beck objectors’ fees
that funded nonrepresentational activities. The unions
also required Beck objectors to renew their objections on
4 Nos. 12-1973 & 12-1984
an annual basis if they wished to continue opting out
of paying such fees.
On June 10, 2005, Douglas Richards, an Indiana resident
who worked at a Cequent Towing Products factory in
Goshen, Indiana, filed an unfair labor practice charge
against USW, arguing that the “annual renewal” policy
placed an undue burden on those who wish to main-
tain their Beck objector status without having to renew
every year. Ronald R. Echegaray and David Yost—Penn-
sylvania and West Virginia residents, respectively—who
worked at a Chemtura Corporation factory in West Vir-
ginia filed similar charges against USW on November 17,
2008. John Lugo, an Illinois resident and journeyman
electrician who obtained employment with various em-
ployers through a hiring hall, also filed a charge on June 10,
2008, against IBEW and IBEW Local 34. These individuals
(the “charging parties”) strongly disagreed with con-
tributing to what they perceived to be the union’s
political activities. Echegaray and Yost always annually
renewed their objections, and Richards and Lugo were
never required by the unions to annually renew their
objections. But they all sought to put an end to the
annual renewal policies so that they would no longer
have to deal with or worry about having to renew
their objections every year.
In response to the above charges, the NLRB General
Counsel, who is independent from the NLRB and investi-
gates unfair labor practice charges to determine whether
to prosecute them, filed a complaint against IBEW and
IBEW Local 34 on August 28, 2008, and a consolidated
Nos. 12-1973 & 12-1984 5
complaint against USW on May 8, 2009. The NLRB
General Counsel urged an end to the annual renewal
policies, but the charging parties also asked for refunds
for all employees who had once objected in the past but
failed to renew. See 29 C.F.R. § 102.8 (charging parties
considered to be parties to NLRB proceedings by de-
fault). Significantly, the charging parties were not
alleging an entitlement to refunds for themselves, since
they annually renewed their objections or were otherwise
treated as Beck objectors at all relevant times. The ALJ
assigned to hear the IBEW matter struck down IBEW Local
34’s annual renewal policy on December 19, 2008, but
declined to order refunds for all employees who had
objected in the past but failed to renew their objections.
The ALJ assigned to hear the USW matter dismissed the
complaint in its entirety on August 6, 2009, and the deci-
sions were appealed to the NLRB (alternatively, the
“Board”).
In August 2011, the Board ruled that the annual
renewal policies violated the unions’ duty of fair repre-
sentation, and ordered that the annual renewal policies
no longer be enforced. It did not, however, address
the request for refunds. Later that month, the charging
parties, not the NLRB General Counsel, filed motions
for reconsideration, asking that refunds also be
awarded. While the motions for reconsideration were
pending, the terms of two Board members expired. This
left only two seats filled, and at least a three-member
quorum is required for the Board to take action. See New
Process Steel, L.P. v. NLRB, 130 S. Ct. 2635, 2642 (2010). On
January 4, 2012, President Obama made three recess
6 Nos. 12-1973 & 12-1984
appointments to the Board, bringing the Board to its full
five-member capacity. The charging parties moved to
disqualify the appointees. And several senators opposed
these appointments, arguing that they were invalid
because, they contend, the Senate was not actually in
recess.
In April 2012, the Board entered orders denying the
motions for reconsideration, ruling that retroactive
refunds were inappropriate because the unions had not
necessarily been on notice that their annual renewal
policies were unlawful, and it declined to consider
the legitimacy of the recess appointments. The charging
parties (“Petitioners”) timely filed petitions for review
to this court.
II. ANALYSIS
Petitioners argue that the NLRB decisions denying
their request for retroactive refunds should be reversed
and the matter remanded because they were not made
by a properly constituted Board. They assert that the
Recess Appointments Clause only allows recess appoint-
ments to be made if the vacancies originate during
the Senate’s recess, and that recess appointments can
only be made during intersession recesses (any recess
between the two annual sessions of Congress, generally
starting sometime in December and ending on January 3
when the next session starts) and not intrasession
recesses (any recess during an annual session of Con-
gress). Petitioners reason that the recess appointments
were also invalid because the Senate did not consider
Nos. 12-1973 & 12-1984 7
itself to be in recess at the time the appointments were
made notwithstanding its designation of its sessions
as “pro forma.” On the merits, Petitioners also chal-
lenge the Board’s denial of retroactive relief in the form
of refunds. We need not address these arguments, how-
ever, because we agree with Respondents that Peti-
tioners lack standing to bring this appeal.
A. Petitioners Were Not “Aggrieved” Because Their
Only Claimed Injury Was Redressed by the Final
NLRB Orders
The relevant portion of the National Labor Relations
Act provides:
Any person aggrieved by a final order of the Board
granting or denying in whole or in part the relief
sought may obtain a review of such order in any
United States court of appeals in the circuit
wherein the unfair labor practice in question was
alleged to have been engaged in or wherein such
person resides or transacts business, or in the
United States Court of Appeals for the District of
Columbia, by filing in such a court a written
petition praying that the order of the Board be
modified or set aside.
29 U.S.C. § 160(f). Therefore, only persons who are “ag-
grieved” by the Board’s final order may petition for
review of the decision by the Court of Appeals. “A party
is ‘aggrieved’ by an order if the order results in an
‘adverse effect in fact.’ ” Harrison Steel Castings, Co. v.
NLRB, 923 F.2d 542, 545 (7th Cir. 1991) (citation omitted).
8 Nos. 12-1973 & 12-1984
The parties generally assume that the meaning of the
term “aggrieved” is coextensive with the familiar “injury-
in-fact” requirement of Article III standing. See Bloom v.
NLRB, 153 F.3d 844, 849 (8th Cir. 1998), rev’d on other
grounds sub nom. Local 12, OPEIU v. Bloom, 119 S. Ct. 1023(1999) (“Congress’s express grant of standing to
aggrieved persons such as Bloom extends to the limits of
that which is permitted by Article III . . . .”). However, the
Supreme Court recently held that a similar “aggrieved”
requirement in Title VII did not refer to “anyone with
Article III standing,” but referred more narrowly to
people who “ ‘fall[] within the “zone of interests” sought
to be protected by the statutory provision whose
violation forms the legal basis for his complaint.’ ” Thomp-
son v. N. Am. Stainless, LP, 131 S. Ct. 863, 870 (2011)
(citation omitted). A party’s interests do not fall within
that “zone” if they “ ‘are so marginally related to or
inconsistent with the purposes implicit in the statute that
it cannot reasonably be assumed that Congress intended
to permit the suit.’ ” Id. (citation omitted).
We need not decide whether the term “aggrieved” in
the NLRA refers to anyone who suffers an “injury-in-
fact” for Article III purposes or refers to something nar-
rower. Even if the more generous requirements of
Article III standing governed the definition of that term,
Petitioners have not themselves suffered any injury-in-
fact from the NLRB decisions. Petitioners either
renewed their objections annually under protest or were
never required to renew their objections at all, and so
their only injury was the burden or threat of having to
renew their objections year after year. In August 2011
Nos. 12-1973 & 12-1984 9
when the NLRB ordered the unions to no longer enforce
their annual renewal policies, that burden was lifted and
the threat was removed. That decision is not being ap-
pealed by the unions. Petitioners themselves simply
suffered no injuries from the Board decisions that could
be remedied on appeal, and so they lack standing to
bring the instant petitions for review. See, e.g., Pirlott v.
NLRB, 522 F.3d 423, 433 (D.C. Cir. 2008) (“There is
nothing in the Board’s decision that resulted in a cogniza-
ble injury to the Charging Parties sufficient to support
a showing of aggrievement under [§ 160(f)].”).
B. The NLRB’s Failure to Reimburse Echegaray and
Yost for Postage Does Not Confer Standing Since
that Request Was Waived
Petitioners argue that at least Echegaray and Yost were
“aggrieved,” because the NLRB decisions failed to order
reimbursement for the postage costs that they incurred
when they annually mailed their objections. To be sure, “an
identifiable trifle is enough to fight out a question
of principle; the trifle is the basis for standing and the
principle provides the motivation.” United States v.
SCRAP, 412 U.S. 669, 689 n.14 (1973). But a thorough
review of the record on appeal makes clear that Peti-
tioners never made any meaningful request for postage
reimbursement at any stage of the administrative pro-
ceedings. See Local 65-B, IBT v. NLRB, 572 F.3d 342, 348
(7th Cir. 2009) (“the NLRA bars us from considering
arguments that the party petitioning for review did not
raise before the Board” (citing 29 U.S.C. § 109(e))). We
10 Nos. 12-1973 & 12-1984
cannot analyze, on the merits, whether the NLRB
abused its discretion in denying certain relief when the
NLRB never had a meaningful opportunity to even con-
sider a request for that relief to begin with.
Petitioners stress that they amply communicated their
request for “make-whole” relief and suggest that the
use of this term in the NLRB context somehow includes
a request for postage reimbursement (i.e., Echegaray
and Yost cannot be “made whole” unless they are reim-
bursed for that postage). The NLRB regulations and
guidelines cited by Petitioners do suggest that “make-
whole” relief is a term of art that is used in the NLRB
proceedings with some frequency (though they suggest
little more than that). But even if a request for “make-
whole” relief by a Beck objector, who annually renews
his objection under protest, provides meaningful notice
of a postage reimbursement claim to the NLRB,
Petitioners did not give adequate notice that they were
seeking “make-whole” relief on behalf of themselves. In
the motion for reconsideration filed by Richards,
Echegaray, and Yost, they expressly state: “Charging
Parties hereby ask the Board, on reconsideration, to
order such nationwide similarly situated ‘make whole’
remedies for all other discriminatees besides the three
Charging Parties” (emphasis added). Neither the original
charges filed nor the NLRB General Counsel complaints
seek “make-whole” relief on behalf of Petitioners. The
brief filed by Richards, Echegaray, and Yost appealing
the ALJ decision did include a request for a “nationwide
reimbursement remedy,” but it later explains exactly
what they meant: “in order to return employees to the
Nos. 12-1973 & 12-1984 11
position that they would have been in ‘but for’ the
USW’s unlawful policies, the union must reimburse all dues
that it collected for nonrepresentational purposes from
employees . . . whose Beck objections were not honored . . .
or whose status was changed from objector to non-
objector as a result of the policy” (emphasis added).
Postage reimbursement was not mentioned. It has been
clear from the beginning that the only “make-whole” or
retroactive relief Petitioners ever really sought was the
refund of dues for other employees. Because any
request for postage reimbursement has been waived,
this last-minute request cannot serve as a basis for stand-
ing. Cf. Chicago United Indus., Ltd. v. City of Chicago, 445
F.3d 940, 948 (7th Cir. 2006) (“ ‘[I]t should have been
clear to the Court of Appeals that a claim for nominal
damages, extracted late in the day from Yniguez’s
general prayer for relief and asserted solely to avoid
otherwise certain mootness, bore close inspection.’ ”
(quoting Arizonans for Official English v. Arizona, 520
U.S. 43, 71 (1997))).
We also note that, since we may only consider
petitions for review of NLRB decisions if this circuit is
“where[] the unfair labor practice in question was
alleged to have been engaged in or where[] such person
resides or transacts business,” 29 U.S.C. § 160(f), Echegaray
and Yost may also lack standing by virtue of where
they live and work. Echegaray lives in Pennsylvania,
Yost lives in West Virginia, both work in West Virginia,
and USW is headquartered in Pennsylvania (where the
annual renewal policy was presumably drafted). Given
these facts, it was incumbent upon Echegaray and Yost
12 Nos. 12-1973 & 12-1984
to also explain in their Jurisdictional Statement how it
is that they are entitled to petition this court for re-
view. They did not.
C. Petitioners Do Not Have Standing to Petition for
Review Just Because They Are Charging Parties
The essence of Petitioners’ final argument is that they
have standing simply because they were the original
charging parties. They suggest that they should be the
ones to see it to the end since they initiated this action
on behalf of themselves and their fellow employees.Œ
Some cases contain language that would seem to
support this view. See, e.g., UAW v. Scofield, 382 U.S. 205,
210 (1965) (“[W]hen the Board dismisses certain portions
of the complaint and issues an order on others . . . [t]he
charging party is aggrieved with respect to the portion
of the decision dismissing the complaint.”); Local 282,
IBT v. NLRB, 339 F.2d 795, 799 (2d Cir. 1964) (“[W]hen
the case has been carried to a decision on the merits by
the Board, the charging party has standing as a ‘person
aggrieved’ under [§ 160(f)] to seek review of an order
granting inadequate relief or denying it altogether. The
General Counsel cannot appeal from his own Board’s
decision, the respondent has no motive to do so, and
this portion of the statute would thus be rendered nuga-
Œ
Though the NLRB General Counsel technically takes up the
baton after the charges are filed, 29 C.F.R. § 102.8 generally
permits the charging parties to fully participate as parties
throughout the administrative proceedings.
Nos. 12-1973 & 12-1984 13
tory unless the charging party were recognized as a
‘person aggrieved.’ ”); Marine Eng’rs Beneficial Ass’n No.
13 v. NLRB, 202 F.2d 546, 548 (3d Cir. 1953) (The NLRB
“rules and regulations permit the charging party to be
listed as a party to the proceedings from the outset
instead of relating him to intervention. He is a party
aggrieved under [§ 160] and . . . ‘may contest’ the cor-
rectness of the Board’s order.” (citation omitted));
NLRB v. OCAWIU, 476 F.2d 1031, 1036 (1st Cir. 1973)
(“[T]he charging party in an unfair labor practice pro-
ceeding possesses a unique legal status. Although like a
complaining witness in a criminal prosecution in that
it cannot compel issuance of a complaint, it has far
greater powers once the complaint issues . . . [and]
participate[s] fully in the subsequent hearing and pro-
ceedings before the Board . . . . If its position is unsuc-
cessful before the Board, it may petition the appropriate
court for review, as ‘a person aggrieved’ under [§ 160(f)].”);
see also UAW v. NLRB, 231 F.2d 237, 242 (7th Cir. 1956)
(“The charging party in a labor case is something like
a complaining witness in a criminal case. But he is
much more than that, for a complaining witness is not
entitled to appeal even where an appeal is allowed for
the prosecution in a criminal case.”).
However, none of these cases involved a situation
like this one, where the charging party was not
actually injured by the final NLRB order. See, e.g., IWIU
v. NLRB, 360 F.2d 823, 826 (D.C. Cir. 1966) (“Of course,
a charging party in some circumstances may be
aggrieved by an order which denies in part the relief
sought, but that does not seem to us to be the case pre-
14 Nos. 12-1973 & 12-1984
sented here.”). The text of 29 U.S.C. § 160(f) does not
suggest that charging parties have talismanic status for
standing purposes, and it strictly refers to “person[s]
aggrieved,” with no exceptions for charging parties or
for anyone else.
Continuing their theme that charging parties occupy
a special category of persons with standing, Petitioners
analogize this case to a class action, and point to the well-
established rule that the mootness of a class represen-
tative’s claim does not automatically prohibit the
class representative from continuing to litigate the class
action. See Sosna v. Iowa, 419 U.S. 393, 401 (1975). They
argue that like class representatives, the charging
parties here have brought and litigated this case on
behalf of similarly situated employees. See NLRB v. Ind. &
Mich. Elec. Co., 318 U.S. 9, 17 (1943) (even a “stranger” to
the dispute may bring a charge on behalf of someone
else); 29 U.S.C. § 160(b) (no mention of any prerequisites
for filing a charge); 29 C.F.R. § 102.9 (“A charge . . . may
be made by any person . . . .”). So they contend that
kicking them out at this stage because they no longer
need a remedy for themselves would be tantamount to
improperly kicking a class representative out simply
because the representative’s claims become moot. The
Eighth Circuit has adopted a version of this theory, see
Bloom, 153 F.3d at 848, as has the Sixth Circuit in an
unpublished decision. See Cecil v. NLRB, 194 F.3d 1311,
1999 WL 970312, at *3 n.1 (6th Cir. Oct. 14, 1999) (unpub-
lished) (“We recognize that Cecil’s lawsuit has never
been formally certified as a proper class action, . . . [but]
[w]e see no functional difference, as it relates to mootness,
Nos. 12-1973 & 12-1984 15
between this process and that of typical class actions. . . .
[W]e are comfortable applying [the Supreme Court’s]
decisions on mootness and class actions in this analogous
context.”). But see Orce v. NLRB, 133 F.3d 907 (2d Cir.
Dec. 9, 1997) (unpublished).
As a preliminary matter, we note that Petitioners’
endeavor to employ a class action analogy potentially
backfires. Though the unions acknowledge that anyone
can file the initial unfair labor practice charge, even
total “strangers,” see Ind. & Mich. Elec. Co., 318 U.S. at 17,
they suggest that Petitioners are not similarly situated
enough with the employees who want refunds to ade-
quately represent them. It is indeed unclear that
Petitioners are “similarly situated” with the employees
who want refunds: while they were all subject to the
same annual renewal policies, the relief sought is quite
different. In addition, including employees who once
objected but later failed to renew potentially raises the
unique problem of determining whether each of those
employees simply intended not to renew (i.e., intended
to opt back in), and thereby presumably lost his right to
a refund. We also acknowledge on the other hand that
the NLRA does not have an explicit “similarly situated”
type of requirement, unlike, for instance, the Fair
Labor Standards Act. See 29 U.S.C. § 216(b) (“An action to
recover the liability prescribed . . . may be maintained
against any employer . . . by any one or more employees
for and in behalf of himself or themselves and other
employees similarly situated.”). And nothing in the rec-
ord before us suggests that the ALJs or the NLRB took
issue with Petitioners’ seeking relief on behalf of the
16 Nos. 12-1973 & 12-1984
employees allegedly entitled to refunds (neither, for
that matter, did the unions during the administrative
proceedings).
We need not decide today whether some kind of repre-
sentativeness or “similarly situated” requirement exists in
the NLRA, or, if so, whether Petitioners satisfy that re-
quirement. That is because even if Petitioners pass that
test with flying colors, and even if Petitioners are right
that class action mootness principles apply in the
NLRB context, they still do not have standing. Simply
put, whether a case is moot under Article III is not the
same as whether a party has been statutorily “aggrieved”
by the NLRB. See, e.g., In Matter of The Watch Ltd., 257
Fed. Appx. 748, 749-50 (5th Cir. Dec. 7, 2007) (unpub-
lished) (analyzing statutory “persons aggrieved” require-
ment in bankruptcy context separately from Article III
mootness); Public Utils. Comm’n v. FERC, 100 F.3d 1451,
1457-59 (9th Cir. 1996) (analyzing statutory “aggrieved”
requirement in Natural Gas Act separately from Article III
mootness); N.C. Utils. Comm’n v. FERC, 653 F.2d 655, 660-
69 (D.C. Cir. 1981) (same). In this case, we do not find
that the instant petitions are moot for Article III
purposes; we simply find that Petitioners have failed to
satisfy the statute’s aggrievement requirement. Peti-
tioners suggest that they are indispensable to the
appellate process in asserting that “only a charging party
can . . . seek judicial review” of final NLRB orders
(Reply Br. at 8 (emphasis added)), but that assertion is
directly contrary to the plain text of 29 U.S.C. § 160(f),
which provides that “[a]ny person who has been
aggrieved by a final order of the Board” may bring a
petition for review. (Emphasis added.)
Nos. 12-1973 & 12-1984 17
III. CONCLUSION
For the above-stated reasons, we D ISMISS the petitions
for review.
12-26-12