Gally v. NLRB

11-2262
Gally v. NLRB
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
AMENDED SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 10th day of September, two thousand twelve.
5 PRESENT: DENNIS JACOBS,
6 Chief Judge,
7 ROSEMARY S. POOLER,
8 SUSAN L. CARNEY,
9 Circuit Judges.
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11 GEORGE H. GALLY, SOLO J. DOWUONA-HAMMOND,
12 Petitioners,
13 -v.- 11-2262
14 NATIONAL LABOR RELATIONS BOARD,
15 Respondent,
16 and
17 INTERNATIONAL UNION, UAW,
18 Intervenor.
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1
1 FOR PETITIONERS: W. James Young, National Right
2 to Work Legal Defense
3 Foundation, Inc., Springfield,
4 Va.
5 FOR RESPONDENT: Jill A. Griffin, Supervisory
6 Attorney, Elizabeth A. Heaney,
7 Attorney, Lafe E. Solomon,
8 Acting General Counsel, John H.
9 Ferguson, Associate General
10 Counsel, Linda Dreeben, Deputy
11 Associate General Counsel,
12 National Labor Relations Board,
13 Washington, D.C.
14 FOR INTERVENOR: Michael Nicholson, Blair K.
15 Simmons, Detroit, Mich.,
16 Laurence Gold, James B. Coppess,
17 Washington, D.C.
18 Petition for review of a decision and order of the
19 National Labor Relations Board.
20 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
21 AND DECREED that the petition for review be DISMISSED and
22 the order of the National Labor Relations Board be VACATED.
23 George H. Gally and Solo J. Dowuona-Hammond petition
24 for review of a decision and order of the National Labor
25 Relations Board determining that the annual renewal
26 requirement imposed on Beck objectors by the International
27 Union, United Automobile, Aerospace & Agricultural Implement
28 Workers of America (“UAW”) and UAW Local Union #376 did not
29 violate the duty of fair representation. See generally
30 Commc’ns Workers of Am. v. Beck, 487 U.S. 735, 762-63 (1988)
31 (“We conclude that § 8(a)(3) [of the National Labor
32 Relations Act] . . . authorizes the exaction of only those
33 fees and dues necessary to performing the duties of an
34 exclusive representative of the employees in dealing with
35 the employer on labor-management issues.” (internal
36 quotation marks omitted)). We assume the parties’
37 familiarity with the underlying facts, the procedural
38 history, and the issues presented for review.
39 “It is . . . commonplace that jurisdiction of federal
40 courts is limited to cases and controversies.” Cook v.
2
1 Colgate Univ., 992 F.2d 17, 19 (2d Cir. 1993) (citing U.S.
2 Const. art. III, § 2, cl. 1). “Hence, litigants are
3 required to demonstrate a ‘personal stake’ or ‘legally
4 cognizable interest in the outcome’ of their case.” Id.
5 (quoting United States Parole Comm’n v. Geraghty, 445 U.S.
6 388, 396 (1980)). “While the standing doctrine evaluates
7 this personal stake as of the outset of the litigation, the
8 mootness doctrine ensures that the litigant’s interest in
9 the outcome continues to exist throughout the life of the
10 lawsuit, including the pendency of the appeal.” Id.
11 (citations omitted). “Accordingly, a case that is live at
12 the outset may become moot when it becomes impossible for
13 the courts, through the exercise of their remedial powers,
14 to do anything to redress the injury.” Id. (internal
15 quotation marks omitted).
16 Petitioners are no longer members of a UAW-represented
17 bargaining unit and thus are not subject to the UAW’s annual
18 renewal requirement. Dowuona-Hammond’s NLRB charge alleged
19 that the requirement violated his rights “as well as the
20 rights of all similarly-situated employees”--who continue to
21 be subject to the requirement. But “[i]n the ordinary case,
22 a party is denied standing to assert the rights of third
23 persons.” Vill. of Arlington Heights v. Metro. Hous. Dev.
24 Corp., 429 U.S. 252, 263 (1977).
25 “[A] viable claim for damages generally avoids mootness
26 of the action,” Cook, 992 F.2d at 19, but it is undisputed
27 that the UAW treated Gally as a Beck objector during all
28 relevant times and has refunded Dowuona-Hammond the excess
29 amount withheld from him plus interest ($87.19).
30 Petitioners argue that they have not been compensated for
31 the costs they incurred filing objections, but Petitioners
32 have no viable claim for these postage costs. In their
33 exceptions to the decision of the administrative law judge--
34 which found that the UAW and UAW Local Union #376 had
35 committed unfair labor practices and ordered them to cease
36 and desist--Petitioners requested a “‘make whole’ remedy to
37 all ‘Beck objectors’ whose objections were treated as having
38 expired during the six months prior to the filing of Gally’s
39 charge, and whose objections were treated as having expired
40 during the pendency of these proceedings.” If Petitioners
41 sought a remedy that included the cost of filing, they would
42 have requested compensation for all Beck objectors, even
43 those whose objections had not expired. “No objection that
44 has not been urged before the Board . . . shall be
45 considered by the court, unless the failure or neglect to
3
1 urge such objection shall be excused because of
2 extraordinary circumstances.” 29 U.S.C. § 160(e).
3 Petitioners contend that Knox v. Serv. Emps. Int’l
4 Union, Local 1000, 132 S. Ct. 2277 (2012), “casts a critical
5 eye” on objection requirements such as the UAW’s. This is
6 an issue best considered after full briefing. In any event,
7 Petitioners’ claim is moot.
8 “It is well established that, when a matter becomes
9 moot on appeal, federal appellate courts will generally
10 vacate the lower court’s judgment . . . .” Coll. Standard
11 Magazine v. Student Ass’n of the State Univ. of N.Y. at
12 Albany, 610 F.3d 33, 35-36 (2d Cir. 2010) (per curiam)
13 (internal quotation marks omitted). The same principle
14 applies to administrative orders. A.L. Mechling Barge Lines
15 v. United States, 368 U.S. 324, 329 (1961).
16 For the foregoing reasons, we DISMISS the petition for
17 review and VACATE the order of the National Labor Relations
18 Board.
19 FOR THE COURT:
20 CATHERINE O’HAGAN WOLFE, CLERK
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