IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________
No. 95-31049 Summary Calendar ______________
FORMOSA PLASTICS CORPORATION, LOUISIANA, Plaintiff, and
MICHAEL DRAGO, MARVIN HOLLINS, TIMOTHY BOURQUE, Plaintiffs-Appellants,
versus
MARK J. KAPLAN, GERALD FLEISCHUT, acting director, Region 15, National Labor Relations Board, NATIONAL LABOR RELATIONS BOARD, Defendants-Appellees. ))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))) MICHAEL DRAGO, MARVIN HOLLINS, TIMOTHY BOURQUE, Plaintiffs-Appellants,
NATIONAL LABOR RELATIONS BOARD, MARK J. KAPLAN, Acting directors, Region 15, National Labor Relations Board, GERALD FLEISCHUT, Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court for the Middle District of Louisiana (CA-95-348-A) _________________________________________________________________
May 14, 1996
Before SMITH, BENAVIDES and DENNIS, Circuit Judges.
FORTUNATO P. BENAVIDES, Circuit Judge:*
Plaintiffs-Appellants appeal the district court's dismissal
for lack of subject matter jurisdiction. Finding that Defendant-
* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. Appellee the National Labor Relations Board's implementation of the
"blocking charge rule" was not highly arbitrary or beyond the
statutory authority vesting in it by Congress, we affirm.
BACKGROUND
This case involves consolidated actions to compel and direct
the Acting Director of Region 15 of the National Labor Relations
Board ("NLRB") to investigate and process a decertification
petition filed by the employees of Formosa Plastics Corporation,
Louisiana ("Formosa") and to investigate a petition for
representation election filed by Formosa to determine whether the
International Brotherhood of Teamsters, Truck Drivers, Warehousemen
and Helpers, Local No. 5, APL-CIO (the "Union") continues to
maintain majority status among the bargaining unit employees of
Formosa. Since 1981, the Union has been the collective bargaining
representative of Formosa's production and maintenance employees.
Their most recent collective bargaining agreement covered the
period from October 1, 1989 through September 30, 1992. A new
agreement has not been negotiated since 1992.
On January 24, 1995, Formosa's employees filed a
decertification petition, supported by 55% of the bargaining unit,
with the NLRB to decertify the Union and to request that an
election be held to determine whether the Union is to remain the
bargaining representative of the Formosa employees. The NLRB
declined to take action on the decertification petition, and,
instead, imposed the "blocking charge rule"1 to delay action during
1 Under the "blocking charge rule," the NLRB dismisses or
2 the pendency of unfair labor practice charges filed against Formosa
by the Union. Then on February 9, 1995, Formosa filed a petition
for representation election with the NLRB requesting that a
representation election be held in order to permit Formosa's
employees to determine whether they still wanted to be represented
by the Union. The NLRB informed Formosa that the "blocking charge
rule" would also delay action on its petition for representation
election pending the resolution of the unfair labor practice
charges.
On April 12, 1995, Formosa's employees filed a Complaint for
Mandamus with the district court, in which they sought to compel
the NLRB to immediately investigate whether a question of
representation exists at Formosa pursuant to the NLRB's mandatory
duty of investigation enumerated in 29 U.S.C. § 159(c)(1)(A). That
case was consolidated with the separate suit filed by Formosa to
compel the NLRB to investigate is petition for representation
election on May 16, 1995.
On June 20, 1995, the NLRB filed a motion to dismiss pursuant
to FED. R. CIV. P. 12(b)(1) and (6), arguing that the district court
lacked subject matter jurisdiction and that the complaints failed
to state a claim upon which relief could be granted. On August 1,
1995, the court entered an order granting the NLRB's motion to
dismiss and finding that Formosa and its employees failed to
postpones its investigation of questions concerning representation during the pendency of certain unfair labor practice charges or while the effects of prior unfair labor practice charges remain undissipated.
3 demonstrate the exceptional circumstances, established by the
Supreme Court in Leedom v. Kyne2, necessary to invoke district
court subject matter jurisdiction to review determinations made by
the NLRB. Judgment was entered August 3, 1995. Formosa
subsequently filed a motion for a new trial, which the court
denied.
JURISDICTION TO REVIEW BLOCKING CHARGE RULE
Plaintiffs-Appellants assert that the NLRB violated section
9(c)(1) of the Labor Management Relations Act, 29 U.S.C. §
159(c)(1)(A), by breaching its duty to consider, investigate and
act upon their decertification petition prior to imposing the
"blocking charge rule." Our decision in this case is guided by our
holding in Bishop v. NLRB, 502 F.2d 1024 (5th Cir. 1974). In
Bishop, we set out and explained the limited circumstances under
which federal courts could assume jurisdiction to review NLRB
representation orders. Specifically, we addressed the issue of
federal jurisdiction with respect to the "blocking charge rule."
We concluded that the rule established by the Supreme Court in Kyne
proposes that courts cannot review a NLRB representation order
unless the NLRB's actions "exceed the scope of its statutory
authority." Id. at 1031.
As Plaintiffs-Appellants point out, our decisions in Templeton
v. Dixie Color Printing Co.3 and Surratt v. NLRB4 applied the rule
2 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958). 3 444 F.2d 1064 (5th Cir. 1971). 4 463 F.2d 378 (5th Cir. 1972).
4 of Kyne and determined that the NLRB's actions were arbitrary and
in plain violation of a mandatory section of the Act. However, the
circumstances of the instant case differ. In Templeton, the NLRB
imposed the "blocking charge rule" without determining whether it
made sense as applied to the particular facts of the case. As it
turned out, the unfair labor practices involved in that case were
so ancient that any effects there might have been on the employees'
attitude toward the Union had long since dissipated. Then in
Surratt, the NLRB applied the "blocking charge rule" after the
unfair labor practice charges blocking the decertification petition
were found totally without merit by the trial examiner following a
full administrative hearing. In both Templeton and Surratt we
concluded that the NLRB acted with a "high degree of
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________
No. 95-31049 Summary Calendar ______________
FORMOSA PLASTICS CORPORATION, LOUISIANA, Plaintiff, and
MICHAEL DRAGO, MARVIN HOLLINS, TIMOTHY BOURQUE, Plaintiffs-Appellants,
versus
MARK J. KAPLAN, GERALD FLEISCHUT, acting director, Region 15, National Labor Relations Board, NATIONAL LABOR RELATIONS BOARD, Defendants-Appellees. ))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))) MICHAEL DRAGO, MARVIN HOLLINS, TIMOTHY BOURQUE, Plaintiffs-Appellants,
NATIONAL LABOR RELATIONS BOARD, MARK J. KAPLAN, Acting directors, Region 15, National Labor Relations Board, GERALD FLEISCHUT, Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court for the Middle District of Louisiana (CA-95-348-A) _________________________________________________________________
May 14, 1996
Before SMITH, BENAVIDES and DENNIS, Circuit Judges.
FORTUNATO P. BENAVIDES, Circuit Judge:*
Plaintiffs-Appellants appeal the district court's dismissal
for lack of subject matter jurisdiction. Finding that Defendant-
* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. Appellee the National Labor Relations Board's implementation of the
"blocking charge rule" was not highly arbitrary or beyond the
statutory authority vesting in it by Congress, we affirm.
BACKGROUND
This case involves consolidated actions to compel and direct
the Acting Director of Region 15 of the National Labor Relations
Board ("NLRB") to investigate and process a decertification
petition filed by the employees of Formosa Plastics Corporation,
Louisiana ("Formosa") and to investigate a petition for
representation election filed by Formosa to determine whether the
International Brotherhood of Teamsters, Truck Drivers, Warehousemen
and Helpers, Local No. 5, APL-CIO (the "Union") continues to
maintain majority status among the bargaining unit employees of
Formosa. Since 1981, the Union has been the collective bargaining
representative of Formosa's production and maintenance employees.
Their most recent collective bargaining agreement covered the
period from October 1, 1989 through September 30, 1992. A new
agreement has not been negotiated since 1992.
On January 24, 1995, Formosa's employees filed a
decertification petition, supported by 55% of the bargaining unit,
with the NLRB to decertify the Union and to request that an
election be held to determine whether the Union is to remain the
bargaining representative of the Formosa employees. The NLRB
declined to take action on the decertification petition, and,
instead, imposed the "blocking charge rule"1 to delay action during
1 Under the "blocking charge rule," the NLRB dismisses or
2 the pendency of unfair labor practice charges filed against Formosa
by the Union. Then on February 9, 1995, Formosa filed a petition
for representation election with the NLRB requesting that a
representation election be held in order to permit Formosa's
employees to determine whether they still wanted to be represented
by the Union. The NLRB informed Formosa that the "blocking charge
rule" would also delay action on its petition for representation
election pending the resolution of the unfair labor practice
charges.
On April 12, 1995, Formosa's employees filed a Complaint for
Mandamus with the district court, in which they sought to compel
the NLRB to immediately investigate whether a question of
representation exists at Formosa pursuant to the NLRB's mandatory
duty of investigation enumerated in 29 U.S.C. § 159(c)(1)(A). That
case was consolidated with the separate suit filed by Formosa to
compel the NLRB to investigate is petition for representation
election on May 16, 1995.
On June 20, 1995, the NLRB filed a motion to dismiss pursuant
to FED. R. CIV. P. 12(b)(1) and (6), arguing that the district court
lacked subject matter jurisdiction and that the complaints failed
to state a claim upon which relief could be granted. On August 1,
1995, the court entered an order granting the NLRB's motion to
dismiss and finding that Formosa and its employees failed to
postpones its investigation of questions concerning representation during the pendency of certain unfair labor practice charges or while the effects of prior unfair labor practice charges remain undissipated.
3 demonstrate the exceptional circumstances, established by the
Supreme Court in Leedom v. Kyne2, necessary to invoke district
court subject matter jurisdiction to review determinations made by
the NLRB. Judgment was entered August 3, 1995. Formosa
subsequently filed a motion for a new trial, which the court
denied.
JURISDICTION TO REVIEW BLOCKING CHARGE RULE
Plaintiffs-Appellants assert that the NLRB violated section
9(c)(1) of the Labor Management Relations Act, 29 U.S.C. §
159(c)(1)(A), by breaching its duty to consider, investigate and
act upon their decertification petition prior to imposing the
"blocking charge rule." Our decision in this case is guided by our
holding in Bishop v. NLRB, 502 F.2d 1024 (5th Cir. 1974). In
Bishop, we set out and explained the limited circumstances under
which federal courts could assume jurisdiction to review NLRB
representation orders. Specifically, we addressed the issue of
federal jurisdiction with respect to the "blocking charge rule."
We concluded that the rule established by the Supreme Court in Kyne
proposes that courts cannot review a NLRB representation order
unless the NLRB's actions "exceed the scope of its statutory
authority." Id. at 1031.
As Plaintiffs-Appellants point out, our decisions in Templeton
v. Dixie Color Printing Co.3 and Surratt v. NLRB4 applied the rule
2 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958). 3 444 F.2d 1064 (5th Cir. 1971). 4 463 F.2d 378 (5th Cir. 1972).
4 of Kyne and determined that the NLRB's actions were arbitrary and
in plain violation of a mandatory section of the Act. However, the
circumstances of the instant case differ. In Templeton, the NLRB
imposed the "blocking charge rule" without determining whether it
made sense as applied to the particular facts of the case. As it
turned out, the unfair labor practices involved in that case were
so ancient that any effects there might have been on the employees'
attitude toward the Union had long since dissipated. Then in
Surratt, the NLRB applied the "blocking charge rule" after the
unfair labor practice charges blocking the decertification petition
were found totally without merit by the trial examiner following a
full administrative hearing. In both Templeton and Surratt we
concluded that the NLRB acted with a "high degree of
arbitrariness," which was found to be in violation of the Act and
within the prohibition of Kyne. Bishop, 502 F.2d at 1031.
Our review of the record in this case, however, reveals that
the NLRB's imposition of the "blocking charge rule" is not
arbitrary or in excess of its statutory powers. The record shows
that the NLRB acted well within the boundaries of its statutory
mandate by specifically determining that the unfair labor practice
charges alleged against Formosa by the Union were substantial
enough to impact the election, and would thus be detrimental to the
free choice of Formosa's employees.5 To allow federal court
5 Indeed, we note that since the appeal was filed in this case, the NLRB has issued a decision and order affirming the administrative law judge's determination that Formosa has engaged in unfair labor practices by violating Section 8(a)(5) and (1) of the Act. See Formosa Plastics Corporation, Louisiana and General
5 jurisdiction under the facts of this case would circumvent the
Congressional determination that "the NLRB, and not the courts, is
to be the umpire in representation disputes." Bishop, 502 F.2d at
1027 (internal citations omitted). Therefore, because we have
concluded that NLRB did not act with the "high degree of
arbitrariness" exhibited in Templeton and Surratt necessary to
apply the Kyne rule, we find that the district court properly
determined that it had no subject matter jurisdiction over
Plaintiffs-Appellants' lawsuit.
CONCLUSION
For the reasons articulated above, the judgment of the
district court is AFFIRMED. Defendants-Appellees' motion to
supplement the record is GRANTED.
Truck Drivers, Warehousemen and Helpers Local No. 5, International Brotherhood of Teamsters, AFL-CIO, 320 NLRB No. 13 (January 3, 1996).