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Schwarz Partners Packaging, LLC v. National Labor Relations Board

United States District Court, D. Columbia.

January 28, 2014

SCHWARZ PARTNERS PACKAGING, LLC, doing business as Maxpak, Plaintiff,

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For NATIONAL LABOR RELATIONS BOARD, LAFE SOLOMON, Defendants: Abby Propis Simms, LEAD ATTORNEY, Kevin Patrick Flanagan, Nancy Ellen Kessler Platt, NATIONAL LABOR RELATIONS BOARD, Special Litigation Branch, Washington, DC; Laura Bandini, LEAD ATTORNEY, Dawn Laura Goldstein, NATIONAL LABOR RELATIONS BOARD, Washington, DC.


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BERYL A. HOWELL, United States District Judge.

This action for declaratory and injunctive relief arises out of a union election conducted at the plaintiff, Schwarz Partners Packaging, LLC's, manufacturing facility in Lakeland, Florida. Compl. ¶ 2, ECF No. 1. The plaintiff challenges the actions of the defendant, the National Labor Relations Board (" NLRB" ),[1] in " sustaining certain objections to [the union] election" and " directing a ballot count and second election" at the plaintiff's plant on grounds that " the Board lacked a quorum

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and had no authority to act." Id. ¶ 1. Pending before the Court are two motions: the plaintiff's Motion for Summary Judgment (" Pl.'s Mot." ), ECF No. 12, and the defendants' Motion to Transfer or, in the alternative, Motion to Dismiss (" Defs.' Mot." ) for lack of subject matter jurisdiction, ECF No. 13. For the reasons stated below, the defendants' motion to dismiss is granted. The plaintiff's motion for summary judgment and the defendants' motion to transfer are denied as moot.


The plaintiff manufactures packaging material at its Lakeland facility under the business name Maxpak and " is an employer within the meaning of section 2(2) of the National Labor Relations Act (" NLRA" )." Compl. ¶ 4; see also Decl. of Joseph A. Kennedy, Director of Human Resources, Schwarz Partners Packaging, LP (" Kennedy Decl." ) ¶ 1, ECF No. 12-1.[2] On March 15, 2012, the NLRB held an election (the " first election" ) at the plaintiff's Lakeland facility to determine whether the United Steelworkers International Union (the " Union" ) would represent certain employees. Compl. ¶ 12. More than ninety-six percent of the plaintiff's Lakeland workforce voted in the election. See Decl. of David Cohen, NLRB Regional Atty., Region 12 (" Cohen Decl." ) Ex. D at 63, ECF No. 13-1. Following the election, the Union challenged the validity of two ballots on the grounds that ineligible employees cast them. Compl. ¶ 12. Since the vote was very close, with thirty-nine votes in favor of the Union and thirty-eight votes opposed, these challenged ballots were potentially determinative. Id.

The objections posed by the Union and the plaintiff to the conduct of the election, including the ballot challenges, were presented to an NLRB hearing officer whose findings were eventually reviewed by a three-member panel of the NLRB, consisting of Chairman Mark Pearce, Member Richard Griffin and Member Sharon Block. Id. ¶ 13; see Compl. Ex. 1 (NLRB Decision and Direction in Schwarz Partners Packaging, LLC, D/B/A/ Maxpak v. United Steelworkers International Union, Case No. 12-RC-073852, (N.L.R.B. Aug. 29, 2012)) (" NLRB Decision" ) at 1-2, ECF No. 1-1. The plaintiff argued to the panel that Members Griffin and Block were not valid members of the NLRB because their " purported recess" appointments were " unconstitutional and void and that the Board therefore lacked a quorum to act." Compl. ¶ 13. The panel considered and rejected this argument. NLRB Decision at 1 n.3, ECF No. 1-1 (citing Ctr. for Social Change, Inc., 358 NLRB No. 24 (2012)).

The NLRB panel ultimately adopted the hearing officer's recommendation that the Union's challenges to the two contested ballots be overruled and ordered that the ballots be counted. Id. at 1 n.2. In considering the remaining objections to the conduct of, and events leading up to, the first election, the NLRB panel determined that two of the Union's objections " considered individually or cumulatively, would warrant setting aside the election" in its entirety. Id. at 2. In particular, the NLRB panel found no basis to overrule the hearing officer's crediting of testimony that a supervisor told the plaintiff's employees that a " union would make it easier for him to fire people" and also told at least one employee that " he would have already discharged [the employee] if she were represented by the Union" during

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the " critical period" prior to the election. Id. at 3.

The NLRB panel ordered the contested ballots counted and provided for two potential outcomes. If the revised ballot count resulted in the Union winning the first election, the NLRB's regional director would be " directed to issue a certification of" the Union as the employees' bargaining representative. See id. at 4. Alternatively, if the contested ballots showed the Union losing the first election, the regional director was instructed to " set aside the election and order a new election." Id. When the contested ballots were counted, the " Union lost the election 40 to 39." Compl. ¶ 16. Consequently, the results of the first election were set aside and a second election was conducted. In this second election, ninety-nine percent of the plaintiff's workforce voted and a strong majority--fifty-five out of seventy-six votes cast--voted for union representation. See Cohen Decl. Ex. I at 110, ECF No. 13-1. On November 6, 2012, the NLRB's regional director " certified the Union as the collective bargaining representative" on behalf of the plaintiff's employees. Compl. ¶ ¶ 16-17.

The plaintiff filed suit in this Court on March 15, 2013, alleging that, under binding D.C. Circuit precedent, " the recess appointments of Ms. Block and Mr. Griffin to the [NLRB] were unconstitutional" and, therefore, the defendants could not " legally take any action, including but not limited to ordering, conducting, or certifying the results of any representative election" because it lacked a quorum. See id. ¶ ¶ 19-20 (citing Noel Canning v. NLRB, 705 F.3d 490, 403 U.S. App. D.C. 350 (D.C. Cir. 2013), cert. granted NLRB v. Noel Canning, 133 S.Ct. 2861, 186 L.Ed.2d 908 (2013)). The plaintiff seeks: (1) a declaration that the NLRB " exceeded its authority when it rendered a decision in the representation proceeding and certified the Union without a valid quorum[; ]" (2) a declaration that the NLRB Decision " and the ensuing certification of representative issued on November 6, 2012 [were] void from their inception[; ]" (3) an injunction barring the Acting General Counsel from " pursuing unfair labor practice charges against [the plaintiff] based on the void certification of representative including" unfair labor charges based on the refusal to bargain with the Union; and (4) litigation costs and reasonable attorneys' fees. Compl. at 8.


A motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) focuses a federal court on its " affirmative obligation to consider whether the constitutional and statutory authority exist" for it to hear a case. James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1092, 317 U.S. App. D.C. 281 (D.C. Cir. 1996) (internal quotation marks omitted). Article III of the United States Constitution limits the federal judicial power to the resolution of " Cases" and " Controversies," U.S. Const. art. III, § 2., and thereby sanctions the exercise of jurisdiction only " to redress or prevent actual or imminently threatened injury to persons caused by private or official violation of law." Summers v. Earth Island Inst., 555 U.S. 488, 492, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009); see also Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (" [t]he case-or-controversy doctrines state fundamental limits on federal judicial power in our system of government" ). " The Art[icle] III doctrine that requires a litigant to have 'standing' to invoke the power of a federal court is perhaps the most important of these doctrines." Allen, 468 U.S. at 750. Thus, " standing is a 'threshold jurisdictional question' we must address [] first." Holistic Candlers & Consumers Ass'n v. FDA, 664 F.3d 940, 943, 398 U.S. App. D.C. 378

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(D.C. Cir. 2012) (quoting Byrd v. EPA, 174 F.3d 239, 243, 335 U.S. App. D.C. 403 (D.C. Cir. 1999)); see also Nat'l Ass'n of Home Builders v. EPA (" NAHB " ), 667 F.3d 6, 11, 399 U.S. App. D.C. 124 (D.C. Cir. 2011) (" a showing of standing is an essential and unchanging predicate to any exercise of our jurisdiction" ) (internal quotation marks and citation omitted).

The Supreme Court has explained that " the irreducible constitutional minimum of standing contains three elements." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). " First, the plaintiff must have suffered an injury in fact," i.e., " an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical." Id. (citations and internal quotation marks omitted). Second, " there must be a causal connection between the injury and the conduct complained of," i.e., the injury alleged must be " fairly traceable to the challenged action of the defendant." Id. (internal quotation marks omitted). Finally, it must be likely that the injury will be redressed by a favorable decision. Id. at 561. Moreover, when a plaintiff seeks prospective declaratory or injunctive relief, allegations of past harms are insufficient. See, e.g., Dearth v. Holder, 641 F.3d 499, 501, 395 U.S. App. D.C. 133 (D.C. Cir. 2011). Rather, when declaratory or injunctive relief is sought, a plaintiff " must show he is suffering an ongoing injury or faces an immediate threat of [future] injury." Id. (citing City of Los Angeles v. Lyons, 461 U.S. 95, 105, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)).

When a purported lack of jurisdiction stems from a lack of standing, the court " must assume that [the plaintiff] states a valid legal claim." Info. Handling Servs., Inc. v. Def. Automated Printing Servs., 338 F.3d 1024, 1029, 358 U.S. App. D.C. 37 (D.C. Cir. 2003). The proponent of jurisdiction bears the burden of proving that jurisdiction exists. Khadr v. United States, 529 F.3d 1112, 1115, 381 U.S. App. D.C. 408 (D.C. Cir. 2008). While " the district court may consider materials outside the pleadings," it must " still accept all of the factual allegations in the complaint as true." Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253, 365 U.S. App. D.C. 270 (D.C. Cir. 2005) (citations and internal quotation marks omitted). " If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed.R.Civ.P. 12(h)(3).


The plaintiff seeks summary judgment based on the D.C. Circuit's opinion in Noel Canning. Pl.'s Mem. Supp. Mot. Summ. J. (" Pl.'s Mem." ) at 1, ECF No. 12. Indeed, the plaintiff appears so confident that it is entitled to the relief sought that it spends a mere six paragraphs, consisting of nine sentences, on its substantive legal argument. See id. at 4-5.[3] In doing so, the plaintiff effectively ignores the substantial jurisdictional issues in its suit, devoting one sentence of its complaint--relying upon 28 U.S.C. § § 1331 and 1337 for subject matter ...

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