Pacific Maritime Ass'n v. National Labor Relations Board

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PACIFIC MARITIME ASSOCIATION, No. 13-35818
Plaintiff-Appellee,
D.C. No.
v. 3:12-cv-02179-MO
NATIONAL LABOR RELATIONS
BOARD, OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, Chief District Judge, Presiding
Argued and Submitted March 8, 2016
Portland, Oregon
Filed July 8, 2016
Before: Raymond C. Fisher, Marsha S. Berzon,
and Paul J. Watford, Circuit Judges.
Opinion by Judge Berzon
2 PACIFIC MARITIME ASS’N V. NLRB
SUMMARY*
Labor Law
Reversing the district court’s summary judgment in favor
of the Pacific Maritime Association, the panel held that the
district court lacked subject matter jurisdiction to vacate an
interlocutory decision of the National Labor Relations Board
issued under § 10(k) of the National Labor Relations Act,
which directs the Board to hear and determine disputes
concerning unfair labor practice charges.
An employer filed an unfair labor practice charge against
a union, and the Board issued a Notice of Hearing under
§ 10(k). The Board denied a motion to intervene and a
motion to quash the Notice of Hearing by the Pacific
Maritime Association, a multi-employer association that
bargained with the union, and concluded that it had
jurisdiction to resolve the unfair labor practice charge.
The Pacific Maritime Association filed an action in
district court seeking immediate judicial review of the
Board’s § 10(k) decision.
The panel held that the Leedom v. Kyne, 358 U.S. 184
(1958), exception to the finality requirement for district court
jurisdiction did not apply. This exception requires a plaintiff
to show both that the Board’s action was ultra vires and that
absent district court jurisdiction, the party seeking review will
be wholly deprived of a meaningful and adequate means of
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
PACIFIC MARITIME ASS’N V. NLRB 3
vindicating its statutory rights. The panel stated that it was
skeptical that the Board’s exercise of jurisdiction was proper.
Nonetheless, whether or not the Board’s decision was ultra
vires, the district court lacked jurisdiction because the Pacific
Maritime Association had alternative means of challenging
the Board’s § 10(k) decision. The panel concluded that the
Association could seek to intervene in an ongoing unfair
labor practice case that arose out of the Board’s decision, or
it could simply await the Board’s final order in that case and
then seek judicial review under NLRA § 10(f) as an
“aggrieved person.”
The panel rejected Pacific Maritime Association’s
argument that it should affirm on the basis of NLRB v. Noel
Canning, 134 S. Ct. 2550 (2014), which invalidated Board
appointments and meant that the Board was acting without a
quorum.
COUNSEL
David Hitoshi Mori (argued) and Denis F. Meiners,
Attorneys; Kevin P. Flanagan, Supervisory Attorney; Nancy
E. Kessler Platt, Deputy Assistant General Counsel; Abby
Propis Simms, Assistant General Counsel; Eric G.
Moskowitz, Acting Assistant General Counsel; Margery E.
Lieber, Associate General Counsel; Jennifer Abruzzo, Deputy
General Counsel; Richard F. Griffin, Jr., General Counsel;
National Labor Relations Board, Washington, D.C.; for
Defendant-Appellant.
Charles I. Cohen (argued), Jonathan C. Fritts, and David R.
Broderdorf, Morgan, Lewis & Bockius LLP, Washington,
4 PACIFIC MARITIME ASS’N V. NLRB
D.C.; Clifford D. Sethness, Los Angeles, California; for
Plaintiff-Appellee.
Michael T. Garone, Schwabe, Williamson & Wyatt, P.C.,
Portland, Oregon, for Amicus Curiae ICTSI Oregon, Inc.
OPINION
BERZON, Circuit Judge:
The National Labor Relations Board (“NLRB” or “the
Board”) challenges the district court’s ruling that it had
subject matter jurisdiction to vacate an interlocutory decision
of the Board issued under § 10(k) of the National Labor
Relations Act (“the Act”). The district court held that
jurisdiction was warranted under the rule of Leedom v. Kyne,
358 U.S. 184 (1958). We conclude that the district court had
no jurisdiction over Pacific Maritime Association’s (“PMA”)
effort to obtain review of a non-final NLRB ruling, as the
Leedom exception to the finality requirement does not apply.
We accordingly reverse.
I.
This case arises out of a longstanding jurisdictional
dispute between two unions representing workers at Terminal
6 at the Port of Portland. Some of the work at the Terminal
involves loading and unloading refrigerated shipping
containers known as “reefers,” which are used to ship food
and other perishables. Reefers must be plugged in to
electrical outlets to maintain proper refrigeration and must be
monitored to ensure they are at the correct temperature.
Since 1974, the Port, a public entity, has employed members
PACIFIC MARITIME ASS’N V. NLRB 5
of the International Brotherhood of Electrical Workers Local
48 (“IBEW”) to perform the so-called “reefer work” of
plugging in, unplugging, and monitoring the reefers. The
IBEW’s work at the Port is governed by a collective
bargaining agreement between the Port and the District
Council of Trade Unions (“District Council”), of which the
IBEW is a member.
A different union, the International Longshore and
Warehouse Union, Local 8, AFL-CIO (“ILWU”), represents
other workers at the terminal. During the mid-2000s, the
ILWU began to assert that ILWU-represented workers should
perform the reefer work. In 2008 the ILWU filed a series of
grievances on this point against the company then operating
the Terminal.
In 2011, ICTSI Oregon, Inc. (“ICTSI”) entered into a 25-
year lease with the Port to take over cargo handling
operations at Terminal 6. During the lease negotiations, the
Port insisted that work that had long been performed by Port
employees under the District Council agreement — including
the reefer work at issue — continue to be the Port’s
responsibility. Accordingly, ICTSI’s lease with the Port
states that ICTSI acknowledges “that the [District Council]
Work is subject to the [District Council]’s jurisdiction under
the [District Council] Agreement” and that ICTSI cannot
perform “at the Terminal any [District Council] Work.”
Elsewhere, the lease provides that as long as the District
Council agreement is in effect, work covered by that
agreement must be performed by District Council employees.
After executing the lease, ICTSI joined the PMA, a multi-
employer association that bargains with the ILWU. As a
member of the PMA, ICTSI became bound to a multi-
6 PACIFIC MARITIME ASS’N V. NLRB
employer collective bargaining agreement known as the
Pacific Coast Longshore Contract Document (“Longshore
Contract”). Under the terms of the Longshore Contract,
reefer work is to be performed by ILWU employees. The
ILWU accordingly demanded that ICTSI assign the reefer
work to ILWU employees. ICTSI responded that under the
terms of its lease, it had no authority to assign or control the
reefer work. The ILWU proceeded to file a series of
grievances against ICTSI and several PMA-member carriers
that call on the Port, alleging that they were in violation of the
Longshore Contract by allowing IBEW-represented
employees to perform the reefer work. When the IBEW
learned of these grievances, it threatened to picket ICTSI if
the reefer work was assigned to ILWU employees.
On May 10, 2012, ICTSI filed an unfair labor practice
charge against the IBEW with the Board. The charge claimed
a violation of § 8(b)(4)(D)1 of the National Labor Relations
Act (“the Act”), which prohibits unions from “threaten[ing],
coerc[ing], or restrain[ing]” any person with the object of
“forcing or requiring any employer to assign particular work
to employees in a particular labor organization . . . rather than
to employees in another labor organization . . . .” 29 U.S.C.
§ 158(b)(4)(ii)(D).
Under § 10(k) of the Act, whenever an unfair labor
practice is charged under § 8(b)(4)(D), the Board is directed
“to hear and determine the dispute out of which such unfair
labor practice shall have arisen.” 29 U.S.C. § 160(k). On
May 17, 2012, the Board’s Region 19 Regional Director
issued a Notice of Hearing under § 10(k). On the first day of
1
For ease of reference, we refer to both §§ 8(b)(4)(i)(B) and (D) and
§§ 8(b)(4)(ii)(B) and (D) of the Act as §§ 8(b)(4)(B) and (D), respectively.
PACIFIC MARITIME ASS’N V. NLRB 7
the hearing, PMA moved to intervene and to quash the Notice
of Hearing, but the Regional Director denied the motion,
concluding that PMA’s interests would be adequately
represented by the ILWU. On June 12, 2012, PMA filed a
request for special permission from the Board to appeal the
denial of its motion to intervene and motion to quash. PMA
argued that because the Port, which employs the IBEW
workers, is a governmental agency, the IBEW workers are
not “employees” within the meaning of the Act; as a result,
PMA claimed, there was no violation of § 8(b)(4)(D), which
requires a dispute between two groups of statutory
“employees,” and thus no jurisdiction for the Board to resolve
the dispute under § 10(k).
On August 13, 2012, the Board issued a decision
awarding the reefer work to the IBEW. Before reaching the
merits of the jurisdictional dispute, the Board rejected the
ILWU’s argument that there was “no violation of Section
8(b)(4)(D) because the dispute concerns the assignment of
work by public employer Port to its own employees, who are
excluded from coverage by the Act.” Citing prior decisions,
the Board concluded that, for § 8(b)(4)(D) to be applicable,
it need have jurisdiction “only over the employer that is the
target of a respondent union’s unlawful conduct” — here,
ICTSI. In a footnote, the Board also denied PMA’s request
to appeal the denial of its motion to intervene on the grounds
that “PMA has made the same claims as ILWU in arguing
that the Board should quash the notice of hearing.” PMA
subsequently filed a motion for reconsideration of the Board’s
decision, in which it reiterated its statutory argument. The
Board denied this motion.
Before the Board’s decision, ICTSI had filed unfair labor
practice charges against the ILWU, alleging that it had taken
8 PACIFIC MARITIME ASS’N V. NLRB
actions designed to coerce ICTSI into assigning the reefer
work to its employees in violation of §§ 8(b)(4)(B) and (D).
On August 17, 2012, ICTSI filed additional unfair labor
practice charges, alleging that this conduct had continued
after and in violation of the Board’s § 10(k) decision
awarding the work to the IBEW. The Regional Director
issued an administrative complaint against the ILWU, and
hearings were held in July and August, 2012. PMA did not
attempt to intervene in the unfair labor practice proceedings.2
On September 7, 2012, PMA filed an action in the District
of Oregon seeking immediate judicial review of the Board’s
§ 10(k) decision. PMA argued that the district court had
jurisdiction to hear its challenge under Leedom, 358 U.S. 184,
“because the Board’s action is beyond the authority granted
to the Board in the NLRA” and “[w]ithout this Court’s
jurisdiction, PMA would be wholly deprived of any means
within its control to remedy the Board’s ultra vires action.”
The Board moved to dismiss for lack of jurisdiction.
On June 4, 2013, the district court held a hearing and
issued an oral ruling denying the Board’s motion to dismiss
and granting summary judgment to PMA. Because the
district court thought it clear that the Board’s decision
exceeded its statutory authority, the hearing focused on the
second prong of the Leedom test — whether there was an
alternative means for PMA to vindicate its statutory rights.
2
While the administrative proceeding was underway, the Regional
Director sought injunctive relief against the ILWU in the District of
Oregon under § 10(l) of the Act. The district court granted an injunction.
On appeal, we vacated a portion of the injunction in light of the district
court order, at issue in this case, vacating the § 10(k) award. See Hooks
ex rel. NLRB v. Int'l Longshore & Warehouse Union, 544 F. App’x 657,
659–60 (9th Cir. 2013).
PACIFIC MARITIME ASS’N V. NLRB 9
The district court first rejected the Board’s argument that
PMA must first seek to intervene in the pending unfair labor
practice case, concluding that “if it tried to do so, it would get
the same answer that it has gotten already” since there was
“no reason to believe . . . that the test [for intervention] is
somehow more favorable this time around to PMA than it has
been in the past.” The court then explained that the question
whether PMA had an alternative avenue to seek review of its
claims turned on whether the Board would issue a “final
order” in the pending unfair labor practice case that would
allow PMA to seek judicial review as a “person aggrieved”
under § 10(f) of the Act, 29 U.S.C. § 160(f). Opining that an
event that would precipitate a “final order” was “not within
PMA’s control,” the court held jurisdiction under Leedom
warranted. The court then granted summary judgment to
PMA, vacating the Board’s § 10(k) decision. This appeal
followed.
The lengthy saga of the underlying dispute continued. On
August 28, 2013, the Administrative Law Judge (“ALJ”)
issued a decision in the ongoing unfair labor practice case
against the ILWU. Despite the district court’s order, the ALJ
concluded that in the absence of a subsequent Board order, he
was obligated to follow the Board’s § 10(k) decision. He
accordingly concluded that the ILWU had violated
§§ 8(b)(4)(B) and (D). On February 20, 2014, the Board
issued an order “to sever, hold in abeyance, and postpone
briefing on the Sec. 8(b)(4)(D) allegations,” which are
dependent upon the § 10(k) decision, pending this appeal.3
3
Later, the Board affirmed the ALJ’s finding that the ILWU had
violated § 8(b)(4)(B). Int’l Longshore & Warehouse Union, AFL-CIO,
363 NLRB No. 12 (2015). An appeal from that decision is now pending
10 PACIFIC MARITIME ASS’N V. NLRB
Int’l Longshore & Warehouse Union, AFL-CIO, 363 NLRB
No. 12 (2015).
II.
The sole issue on appeal is whether the district court had
subject matter jurisdiction to issue its order vacating the
Board’s § 10(k) decision.
Section 10(f) of the Act provides that “[a]ny 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 an appropriate circuit court, or in the D.C.
Circuit. 29 U.S.C. § 160(f). A Board decision resolving a
jurisdictional dispute under § 10(k) is not a “final order”
permitting review under § 10(f). See Henderson ex rel. NLRB
v. Int’l Longshoremen’s & Warehousemen’s Union Local 50,
457 F.2d 572, 577 (9th Cir. 1972) (explaining that “the
section 10(k) award is an interlocutory order reviewable only
in the course of review of any subsequent final order under
section 8(b)(4)(D)”). Ordinarily, the § 10(f) procedure is the
only avenue by which a party may seek judicial review of
Board decisions; the courts are otherwise without subject
matter jurisdiction. See Am. Fed’n of Labor v. NLRB,
308 U.S. 401, 404 (1940); Myers v. Bethlehem Shipbuilding
Corp., 303 U.S. 41, 48 (1938). Ordinarily, then, Board
§ 10(k) determinations are not reviewable decisions.
In Leedom v. Kyne, however, the Supreme Court carved
out a narrow exception to the rule precluding jurisdiction over
Board decisions beyond that provided in § 10(f). In Leedom,
before the D.C. Circuit. See Intl. Longshore & Warehouse Union v.
NLRB, No. 15-1344 (D.C. Cir. filed October 1, 2015).
PACIFIC MARITIME ASS’N V. NLRB 11
the Board had directed an election in a mixed bargaining unit
of both professional and non-professional employees, despite
a provision in § 9(b)(1) dictating that it “shall not” do so
“unless a majority of such professional employees vote for
inclusion in such unit.” 29 U.S.C. § 159(b)(1); see Leedom,
358 U.S. at 185. In the ordinary case, a decision certifying a
bargaining unit, like a § 10(k) decision, is not a final order
that can be reviewed under § 10(f). Am. Fed’n of Labor,
308 U.S. at 409. The Union nonetheless filed suit in district
court, asking the court to set aside the Board’s decision.
The Supreme Court held that the district court had
jurisdiction. As it explained, two considerations supported its
holding. First, the “suit [was] not one to ‘review,’ in the
sense of that term as used in the Act, a decision of the Board
made within its jurisdiction. Rather, it [was] one to strike
down an order of the Board made in excess of its delegated
powers and contrary to a specific prohibition in the Act.”
Leedom, 358 U.S. at 188. Second, because, in the ordinary
case, only an employer can precipitate an unfair labor practice
charge, and thus ultimately a reviewable final order, by
refusing to bargain after an election, the aggrieved employees
in this case had “no other means, within their control . . . to
protect and enforce” their statutory rights. Id. at 190. In
other words, “absence of jurisdiction of the federal courts
would mean a sacrifice or obliteration of a right which
Congress has given professional employees.” Id. (internal
quotation marks omitted).
The exercise of jurisdiction under Leedom thus requires
a plaintiff to make a two-part showing. Nat’l Air Traffic
Controllers Ass’n AFL-CIO v. Fed. Serv. Impasses Panel,
437 F.3d 1256, 1263 (D.C. Cir. 2006). First, the challenged
Board action must be ultra vires, i.e., it must contravene
12 PACIFIC MARITIME ASS’N V. NLRB
“clear and mandatory” statutory language. Leedom, 358 U.S.
at 188. And second, absent district court jurisdiction, the
party seeking review must be “wholly deprive[d] . . . of a
meaningful and adequate means of vindicating its statutory
rights.” Bd. of Governors of Fed. Reserve Sys. v. MCorp
Fin., Inc., 502 U.S. 32, 43 (1991).
As we will explain below, we conclude that the district
court erred in applying Leedom’s second prong because PMA
had alternative means available to seek review of the Board’s
§ 10(k) decision. Accordingly, while we are skeptical, for the
reasons that follow, that the Board’s exercise of jurisdiction
was proper, we need not and do not resolve the question.
A. The Board’s Statutory Authority Under § 10(k).
Under § 10(k), the Board is “empowered and directed” to
resolve jurisdictional disputes “[w]henever it is charged that
any person has engaged in an unfair labor practice within the
meaning of” § 8(b)(4)(D). 29 U.S.C. § 160(k). Section
8(b)(4)(D), in turn, makes it an unfair labor practice to
threaten or coerce any person with the object of “forcing or
requiring any employer to assign particular work to
employees in a particular labor organization . . . rather than to
employees in another labor organization.” 29 U.S.C.
§ 158(b)(4)(D).
“Employee” has a specific definition in the Act. Section
2.3 provides in part that “[t]he term ‘employee’ shall include
any employee . . . but shall not include . . . any individual
employed by . . . any other person who is not an employer as
herein defined.” 29 U.S.C. § 152(3). The statute’s definition
of “employer,” in turn, provides in part that the term “shall
not include . . . any State or political subdivision thereof.”
PACIFIC MARITIME ASS’N V. NLRB 13
29 U.S.C. § 152(2). Employees of public entities are thus not
“employees” within the meaning of the Act. The parties in
this case agree that the Port of Portland is a public entity.
Section 8(b)(4)(D) defines an unfair labor practice only
when a union acts with the purpose of forcing “any
employer” to assign work to one group of “employees” rather
than another group of “employees.” Because employees of
state agencies are not employed by statutory “employers” —
and thus are not “employees” within the meaning of the Act
— § 8(b)(4)(D), on its face, does not apply to conduct arising
in the context of a jurisdictional dispute involving state
employees. And because § 8(b)(4)(D) defines and limits the
Board’s authority to make jurisdictional rulings under
§ 10(k), it would appear that the Board cannot resolve
jurisdictional disputes where one of the disputants is a group
of state employees.
The Board asserts that, notwithstanding the apparent
reach of the statute, its exercise of jurisdiction was proper.
Each of its arguments has flaws.
First, the Board argues that its § 10(k) decision was
proper because § 10(k) does not require an “actual finding of
the elements of a Section 8(b)(4)(D) violation.” Instead, “the
Board’s power under § 10(k) depend[s] upon whether there
is reasonable cause to believe that § 8(b)(4)(D) has been
violated.” Int’l Tel. & Tel. Corp., Commc’ns Equip. & Sys.
Div. v. Local 134, Int’l Bhd. of Elec. Workers (ITT), 419 U.S.
428, 445 n.16 (1975). We are skeptical that the Board can
have “reasonable cause to believe” a violation has taken place
where one of the groups involved in the jurisdictional dispute
seemingly falls outside the coverage of the Act.
14 PACIFIC MARITIME ASS’N V. NLRB
Second, the Board argues that it has “broad discretion in
defining what constitutes a jurisdictional dispute warranting
resolution under Section 10(k),” and that its determinations
are entitled to Chevron deference. See Chevron, U.S.A., Inc.
v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). But in
reviewing agency statutory interpretations, “[f]irst, always, is
the question whether Congress has directly spoken to the
precise question at issue. If the intent of Congress is clear,
that is the end of the matter; for the court, as well as the
agency, must give effect to the unambiguously expressed
intent of Congress.” Id. at 842–43; see also United Food &
Commercial Workers Union, Local 1036 v. NLRB, 307 F.3d
760, 766 (9th Cir. 2002). So if, the statutory definition of
“employee” represents the “unambiguously expressed intent
of Congress,” the Board’s contrary reading would be entitled
to no deference.
Third, the Board asserts that it acted within its discretion
in asserting jurisdiction on the basis of the precedent-based
argument that it made in the § 10(k) decision itself. There,
the Board relied on prior decisions holding that to find a
§ 8(b)(4)(D) violation, “the Board need have jurisdiction only
over the employer that is the target of a respondent union’s
unlawful conduct.” In both the cases the Board relies on, the
jurisdictional dispute was, in fact, between two groups of
covered employees. See United Ass’n of Journeymen &
Apprentices of the Plumbing & Pipe Fitting Indus., Local
195, 275 N.L.R.B. 484 (1985); Int’l Longshoremen’s Ass’n,
Local 1911, 236 N.L.R.B. 1439 (1978).
In light of the foregoing, it appears likely that the Board’s
§ 10(k) decision violated the “clear and mandatory” language
of the Act. Leedom, 358 U.S. at 188. Nonetheless, because
we conclude that the district court’s exercise of jurisdiction
PACIFIC MARITIME ASS’N V. NLRB 15
was improper under Leedom’s second prong, we leave it to
the Board to render a final decision on its own jurisdiction in
the first instance.
B. The Availability of Alternative Paths to Secure
Judicial Review
Whether or not the Board’s decision was ultra vires, the
district court’s exercise of jurisdiction under Leedom was
improper if PMA had some alternative means to challenge the
Board’s § 10(k) decision. See MCorp, 502 U.S. at 44. The
Board argues that PMA has two such means: it could seek to
intervene in the ongoing unfair labor practice case that arose
out of the Board’s decision, or it could simply await the
Board’s final order in that case, and then seek judicial review
under § 10(f) as an “aggrieved person.” We agree.
With respect to intervention, the district court reasoned
that because PMA had already unsuccessfully attempted to
intervene in the § 10(k) proceedings, “if it tried to do so [in
the unfair labor practice case], it would get the same answer
that it has gotten already.” The court’s conclusion was based
on its understanding of the standards for intervention in a
Board case. Because the court found that there was “no
reason to believe . . . that the test [for intervention] is
somehow more favorable this time around to PMA than it has
been in the past,” it concluded that a renewed request for
intervention would be futile.
The district court’s focus on a supposed “test” for
intervention was misdirected. Under both the Act and the
Board’s regulations, the Board and its ALJs are afforded
broad discretion in determining requests to intervene. See
29 U.S.C. § 160(b) (“In the discretion of the member, agent,
16 PACIFIC MARITIME ASS’N V. NLRB
or agency conducting the hearing or the Board, any other
person may be allowed to intervene in the said proceeding
and to present testimony.”); 29 C.F.R. § 102.29 (“The
regional director or the administrative law judge, as the case
may be, may by order permit intervention in person or by
counsel or other representative to such extent and upon such
terms as he may deem proper.”). Contrary to the district
court’s assumption, therefore, there is no rigid standard for
intervention such that PMA, having once failed to surmount
it, would necessarily fall short in a subsequent proceeding.
Moreover, there are significant differences between the
§ 10(k) proceeding in which the Board denied intervention
and the ongoing unfair labor practice proceeding. A § 10(k)
proceeding has “[s]treamlined procedures” because it results
only in “a preliminary administrative determination made for
the purpose of attempting to resolve a dispute.” ITT,
419 U.S. at 440. An unfair labor practice proceeding, by
contrast, is a full, adversarial adjudication of whether one
party has violated the Act. The Board could thus decide, in
its discretion, that intervention is appropriate in the full unfair
labor practice proceeding despite having denied intervention
in the truncated § 10(k) proceeding. Significantly, the Board
has stated (and it informed the district court) that its General
Counsel would not oppose an intervention request by PMA in
the unfair labor practice case.
Nor would the Board’s previous rejection of PMA’s
statutory argument prevent PMA from renewing that
argument upon intervention. “The findings and conclusions
in a § 10(k) proceeding are not res judicata on the unfair
labor practice issue in the later § 8(b)(4)(D) determination.”
ITT, 419 U.S. at 446 (quoting NLRB v. Plasterers’ Local
Union No. 79, Operative Plasterers’ & Cement Masons’ Int’l
PACIFIC MARITIME ASS’N V. NLRB 17
Ass’n, 404 U.S. 116, 122 n.10 (1971)); see also Warehouse
Union Local 6, ILWU, 289 N.L.R.B. 1, 2 (1988) (overruling
“prior Board cases to the extent they suggest that a
respondent in an 8(b)(4)(D) proceeding is not entitled to
relitigate factual issues concerning the elements of the
8(b)(4)(D) violation that were raised in an underlying 10(k)
proceeding unless it presents new or previously unavailable
evidence”). The Board is thus free to revisit in a § 8(b)(4)(D)
proceeding issues on which it had previously ruled in a
§ 10(k) decision. Indeed, reconsideration of § 10(k) rulings
appears implicitly to be contemplated by the statutory
scheme, given that a § 8(b)(4)(D) proceeding involves a full
adversarial adjudication, in contrast with the informal
proceedings required under § 10(k).
We therefore conclude that intervention in the unfair labor
practice proceeding presented PMA with a viable alternative
path to seeking review of the Board’s § 10(k) decision. A
requirement that PMA attempt to intervene in the unfair labor
practice case before seeking Leedom jurisdiction is consistent
with the doctrine of administrative exhaustion, which, as we
have previously noted, “serves two vital purposes: first, to
give the agency an initial opportunity to correct its mistakes
before courts intervene; and second, to enable the creation of
a complete administrative record should judicial review
become necessary.” AMERCO v. NLRB, 458 F.3d 883, 888
(9th Cir. 2006). The district court’s decision to assert
jurisdiction in this case deprived the agency of an
“opportunity to correct its mistakes,” although a clear path
existed for the agency to do so.
We further agree with the Board that even without
intervention, the pending unfair labor practice case gives
PMA a “meaningful and adequate” means to seek judicial
18 PACIFIC MARITIME ASS’N V. NLRB
review. Section 10(f) provides that any “person aggrieved”
— not “party aggrieved” — by a final order of the Board may
seek judicial review. While, in the typical case, a “person
aggrieved” usually will have been a party to the Board
proceeding, party status is not necessary. Courts have
recognized entities as ‘aggrieved persons’ even though they
were not parties in the underlying administrative proceedings.
See, e.g., Brentwood at Hobart v. NLRB, 675 F.3d 999, 1005
(6th Cir. 2012). PMA argues that such cases have been
infrequent, but it does not dispute that the Act nowhere
requires an aggrieved person to have been a party to the
underlying proceeding. The Board thus argues that PMA has
as much opportunity to seek judicial review as the ILWU,
which is the subject of the Board’s § 8(b)(4)(D) proceeding.
It can simply wait for the Board to issue its final order in that
case, and then seek review under § 10(f), as provided in the
statute.
PMA argues that this route is not sufficient. In Leedom,
the Court emphasized that the employees seeking review had
no adequate means “within their control” to seek judicial
review. 358 U.S. at 190. In this case, PMA argues, its ability
to seek review under § 10(f) depends on a contingency that it
cannot control, as it can seek review only if the Board issues
a final decision finding a violation of § 8(b)(4)(D). It is not
certain that the Board would do so, PMA maintains, because
the unfair labor practice proceedings could terminate in a
settlement (which PMA would have no ability to control),
relieving the Board of the necessity of issuing a final order.
In such a case, PMA would not be able to seek review under
§ 10(f). Thus, PMA argues its position is equivalent to that
of the union in Leedom.
PACIFIC MARITIME ASS’N V. NLRB 19
Not so. As discussed above, Leedom involved a challenge
to a Board decision certifying a bargaining unit before an
election. Like a § 10(k) decision, a certification decision is
not a “final order”; it is typically only subject to judicial
review to the extent “it may be drawn in question by a
petition for enforcement or review of an order, made under
§ 10(c) of the Act, restraining an unfair labor practice.”
358 U.S. at 187. But as the court below had explained,
“review by way of § 10 is too remote and conjectural to be
viewed as providing an adequate remedy.” Leedom v. Kyne,
249 F.2d 490, 492 (D.C. Cir. 1957). This remoteness resulted
from the circumstance that the union had no way to
precipitate an unfair labor practice case that would present the
issue and ultimately result in a final order; if the union
refused to bargain with the employer, the employer likely
would not seek review “since he would then be free to deal
with all employees individually.” Id. The problem in
Leedom, then, was that there was no way for the union to
initiate the unfair labor practice case necessary to produce a
final order of the Board.
By contrast, in this case, an unfair labor practice
proceeding relying on the § 10(k) decision is already
underway. Absent settlement, there will be a final order. Put
another way, in Leedom, absent district court jurisdiction, the
union could only seek review in the extremely unlikely event
that the employer filed unfair labor practice charges upon the
union’s refusal to bargain. Under the status quo, there would
be no avenue for review. By contrast, in this case PMA will
only be denied the opportunity to seek review if an unlikely
event, i.e. a settlement, prevents the Board from issuing the
final order that would otherwise follow in due course.
20 PACIFIC MARITIME ASS’N V. NLRB
Furthermore, even if the unfair labor practice proceeding
did terminate in a settlement, nothing would prevent PMA
from then seeking a district court order under Leedom. As we
have previously explained, there is no basis for expanding the
narrow Leedom exception “from situations in which judicial
review is not available at all to situations in which judicial
review simply is not available yet.” AMERCO, 458 F.3d at
890.
Under the PMA’s approach, the exception would swallow
the rule. Any unfair labor practice case could, hypothetically,
end in a settlement without a final order. If this possibility
were enough to support Leedom jurisdiction, then any non-
party to an unfair labor practice proceeding could
immediately seek judicial review of a Board decision without
waiting for a final order.
In sum, PMA has adequate alternative means to seek
judicial review “within its control”: it may seek to intervene
in the § 8(b)(4)(D) proceeding, or it may file a petition for
review under § 10(f) at the conclusion of that proceeding. To
the extent that PMA lacks control over the issuance of a final
order because of the possibility of a settlement, nothing
would prevent it from filing a district court action after a
settlement is reached. We therefore conclude that the district
court erred in asserting jurisdiction under Leedom.
III.
PMA alternatively urges us to affirm on the basis of the
Supreme Court’s decision in NLRB v. Noel Canning, 134 S.
Ct. 2550 (2014). There, the Court invalidated three of
President Obama’s recess appointments to the Board,
meaning that the Board had been operating without a quorum
PACIFIC MARITIME ASS’N V. NLRB 21
of at least three validly appointed members between January
2012 and August 2013. All Board decisions made during this
period are thus invalid under New Process Steel, L.P. v.
NLRB, 560 U.S. 674 (2010), which held that the Board cannot
exercise its powers in the absence of a lawfully appointed
quorum. The Board’s § 10(k) decision in this case was made
during the period affected by Noel Canning.
PMA points to a line of cases beginning with Fay v.
Douds, 172 F.2d 720 (2d Cir. 1949), holding that district
courts have jurisdiction to hear constitutional challenges to
agency action. Because Noel Canning allows PMA to raise
such a challenge to the Board’s decision, PMA argues that
this court may uphold the district court’s jurisdiction on this
alternate ground. But we have previously explained that like
Leedom jurisdiction, jurisdiction under Fay applies only in
“situations in which meaningful judicial review is
unavailable.” AMERCO, 458 F.3d at 889–90. PMA’s
argument thus fails for the same reason as its Leedom
argument; it has the opportunity to raise its Noel Canning
challenge as an intervenor in the § 8(b)(4)(D) case, or if it
later files a petition as an aggrieved person under § 10(f).
IV.
The exception to the rule precluding judicial review of
interlocutory orders of the Board carved out by Leedom is a
narrow one. It is well-settled that “[a] federal district court
may exercise jurisdiction to review a [Board] order only ‘in
exceptional circumstances,’” Nat’l Air Traffic Controllers
Ass’n, 437 F.3d at 1258 (quoting Council of Prison Locals v.
Brewer, 735 F.2d 1497, 1500 (D.C. Cir. 1984)), where a party
has no feasible means to seek relief from an ultra vires order
22 PACIFIC MARITIME ASS’N V. NLRB
of the Board. Because such means were available to PMA in
this case, the district court erred in asserting jurisdiction.
REVERSED.