ROBBIE OHLENDORF; SANDRA ADAMS, and all others similarly situated, Plaintiffs-Appellants, v. UNITED FOOD & COMMERCIAL WORKERS INTERNATIONAL UNION, LOCAL 876, Defendant-Appellee.
No. 17-1864
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
February 22, 2018
18a0036p.06
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 1:16-cv-01439—Paul Lewis Maloney, District Judge. Argued: February 1, 2018.
ARGUED: Amanda K. Freeman, NATIONAL RIGHT TO WORK LEGAL DEFENSE FOUNDATION, INC., Springfield, Virginia, for Appellants. J. Douglas Korney, LAW OFFICES OF J. DOUGLAS KORNEY, Farmington Hills, Michigan, for Appellee. ON BRIEF: Amanda K. Freeman, William L. Messenger, Glenn M. Taubman, NATIONAL RIGHT TO WORK LEGAL DEFENSE FOUNDATION, INC., Springfield, Virginia, for Appellants. J. Douglas Korney, LAW OFFICES OF J. DOUGLAS KORNEY,
OPINION
SUTTON, Circuit Judge. The Labor Management Relations Act makes it a crime for an employer to deduct union dues from an employee‘s paycheck and for the union to accept the dues, except if the employee consents by signing an authorization form, often called a dues checkoff. Robbie Ohlendorf and Sandra Adams signed dues checkoff authorizations with their employer in 2013. When they tried to revoke them three years later, they did not follow the protocol for revoking their consent, and the union insisted that they do so. Ohlendorf and Adams sued the union in response. Their putative class action lawsuit seeks damages and injunctive relief on the ground that the union violated the Act and its duty of fair representation. The district court dismissed the complaint as a matter of law. Because this criminal law does not create a private right of action and because the union did not act arbitrarily or in bad faith, we affirm.
I.
Ohlendorf and Adams worked for Oleson‘s Food Stores in Michigan. The collective bargaining agreement between Oleson‘s and Local 876 of the United Food & Commercial Workers Union allowed Oleson‘s to deduct union dues from their employees’ paychecks if the employee signed an authorization form. The form provided that the checkoff authorization would be irrevocable for one year or until the termination date of the agreement, whichever occurred sooner, and thereafter for yearly periods unless revoked by certified mail during a 15-day window each year.
Ohlendorf and Adams joined the union in 2013 and signed the authorization forms. Three years later, they resigned their membership and tried to revoke their permission. But they sent their written revocations by regular mail, not certified mail, and did so outside of the 15-day period for revoking authorization. The union refused to accept the revocations for that year. The company thus continued to deduct union dues from their wages, and the union continued to accept the payments.
Ohlendorf and Adams filed a class action against the union, claiming it violated the Labor Management Relations Act by imposing conditions on their ability to revoke their authorizations and violated its duty of fair representation by enforcing those conditions. They sought damages and injunctive relief. The district court dismissed the complaint as a matter of law, prompting this appeal. While the appeal was pending, Adams successfully revoked her authorization and Ohlendorf quit working at Oleson‘s.
II.
III.
Section 302 of the Labor Management Relations Act makes it a crime for an employer to willfully give money to a labor union,
beyond the termination date of the applicable collective agreement, whichever occurs sooner.”
The Attorney General has authority to enforce this criminal statute. But he has not done so with respect to these allegations. Nor have Ohlendorf and Adams filed a charge with the National Labor Relations Board that the union or their employer has committed an unfair labor practice.
What we have instead is a civil lawsuit filed by Ohlendorf and Adams in federal district court to enforce this criminal statute. That is not an everyday event in the federal courts. Before individuals may file such a lawsuit, they must identify a statutory cause of action that allows them to do so. Alexander v. Sandoval, 532 U.S. 275, 286 (2001). They point to no such law, and under basic customs of statutory interpretation no such right of action exists.
“An express federal cause of action states, in so many words, that the law permits a claimant to bring a claim in federal court.” Traverse Bay Area Intermediate Sch. Dist. v. Mich. Dep‘t of Educ., 615 F.3d 622, 627 (6th Cir. 2010). Nothing in § 302 says that private parties may enforce the law. The relevant language imposes federal criminal penalties on parties who willfully violate the statute: a criminal fine up to $15,000 or imprisonment up to five years.
That leaves the possibility of an implied right of action. But that is an increasingly rare creature, one that requires us to infer that Congress created a private right and provided for a private remedy, all without taking the conventional route of doing so expressly. See generally Ziglar v. Abbasi, 137 S. Ct. 1843, 1855–58 (2017); Rancho Palos Verdes v. Abrams, 544 U.S. 113, 119–20 (2005).
Section 302 does not confer any individually enforceable right, “phrased in terms of the persons benefited.” Gonzaga Univ. v. Doe, 536 U.S. 273, 284 (2002) (quotations omitted). Much less does the provision do so clearly. “[I]f Congress wishes to create new rights enforceable under [an implied private right of action], it must do so in
How, one might wonder, does Congress “imply” a right of action in “clear and unambiguous terms“? The answer is that the rights-creating language must be “clear and unambiguous.” McCready v. White, 417 F.3d 700, 703 (7th Cir. 2005). “Rights,” it also deserves mention, differ from the “broader or vaguer ‘benefits’ or ‘interests‘” that some statutes create. Rancho Palos Verdes, 544 U.S. at 119–20. Statutes that ban conduct but do not identify specific beneficiaries do not suffice. Sandoval, 532 U.S. at 289.
The concrete usually beats the abstract. Some examples may help. On the permissible side of the line: A statute that says “[n]o person in the United States shall . . . be subjected to discrimination” on the basis of race creates an individual right to be free from race discrimination. Cannon v. Univ. of Chicago, 441 U.S. 677, 691 (1979). And a statute that reads “[n]o person in the United States shall, on the basis of sex, . . . be subjected to discrimination” creates an individual right to be free from sex discrimination. Id. Both statutes clearly spell out the rights and beneficiaries and thus suffice to create implied rights of action.
On the impermissible side of the line: A statute prohibiting the funding of “any educational agency or institution which has a policy or practice of permitting the release of education records” creates no rights at all, even though some people (students) might benefit from the statute and might have an interest in enforcing it. Gonzaga, 536 U.S. at 287–88. Neither does a statute that authorizes federal agencies “to effectuate the provisions of [a ban on intentional race discrimination] . . . by issuing rules, regulations, or orders of general applicability.” Sandoval, 532 U.S. at 288–89. Nor a statute that says “[t]he chief State election official . . . shall enter into an agreement to match information in the database of the statewide voter registration system with information in the database of the motor vehicle authority.” Brunner v. Ohio Republican Party, 555 U.S. 5, 5 (2008) (per curiam). Nor a statute that requires state governments to “substantially comply” with federal requirements to receive federal funds under Title IV-D of the Social Security Act. Blessing v. Freestone, 520 U.S. 329, 344 (1997). Nor a statute that requires the federal government to “approve any [state Medicaid] plan which fulfills the conditions specified” in another subsection. Armstrong v. Exceptional Child Center, Inc., 135 S. Ct. 1378, 1387 (2015) (plurality opinion).
Section 302 falls on the impermissible side of this line. It does not create person-specific rights. Like the statutes in Gonzaga, Sandoval, Brunner, Blessing, and Armstrong, it “focus[es] on the person[s] regulated rather than the individuals protected.” Sandoval, 532 U.S. at 289. The statute makes it a crime for an employer to willfully give money to a union,
Sure enough, one can identify potential beneficiaries of the statute: employees. But that puts them in a category covered by all criminal laws: victims. We do not casually, or for that matter routinely, imply private rights of action in favor of the victims of violations of criminal laws. Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 190 (1994). Quite the opposite is true, as all of the following cases confirm. See, e.g., Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, Inc., 552 U.S. 148, 165–66 (2008); Central Bank of Denver, 511 U.S. at 190–91; Chrysler Corp. v. Brown, 441 U.S. 281, 316 (1979); Transamerica Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11, 20 (1979); Cort v. Ash, 422 U.S. 66, 80 (1975).
Other indicators of meaning confirm this reading of the statute. Section 302 is flanked by provisions of the Labor Management Relations Act that expressly establish private rights of action. Section 301 says that “[s]uits for violation of contracts between an employer and a labor organization . . . may be brought in any district court.”
When Congress wished to provide a private right of action, as these provisions indicate, it had no trouble doing so—clearly. Touche Ross & Co. v. Redington, 442 U.S. 560, 572 (1979). We should respect its ability to decide when, and when not, to create private rights of action.
Ohlendorf and Adams insist that § 302(e) confers an express cause of action. But that is not so. That provision grants jurisdiction to the federal courts “to restrain violations of this section.”
But what does § 302(e) do if it does not create a private right of action, Ohlendorf and Adams ask? Why else allow jurisdiction to restrain violations of the law? Two answers. One: The statute creates jurisdiction for the courts to restrain violations of § 302 at the request of the Attorney General. Having entrusted the Attorney General to protect the public from criminal violations of § 302, Congress gave the federal courts authority to hear such actions and to permit federal courts (at the behest of the Attorney General) to enjoin violations of this criminal labor law.
Two: Section 302(e) provides the courts with jurisdiction to enjoin violations of § 302 in lawsuits brought under express private rights of action, as a needed exception to the Clayton Act and the Norris-LaGuardia
F.2d 41 (4th Cir. 1978). Or suppose that an arbitrator finds that an employer breached a provision of a collective bargaining agreement and awards damages to the union. The company might challenge the arbitration award under the Federal Arbitration Act,
Ohlendorf and Adams claim that two Supreme Court decisions already have decided the question in their favor. Not true. Local 144 Nursing Home Pension Fund v. Demisay, 508 U.S. 581 (1993), never addressed today‘s issue. Plus, the claimants lost the injunction case on the merits anyway, which is why the opinion merely quotes § 302(e) but never analyzes whether it or any other provision creates a private right of action. Id. at 587. Sinclair Refining Co. v. Atkinson, 370 U.S. 195 (1962), is of a piece, though even less relevant. That claimant too lost on the merits. And all it does is refer to the language of § 302(e) in addressing an issue unconnected to this dispute. Id. at 205. Neither case says anything about a money-damages private right of action.
None of this leaves the employees without recourse. They may wait for the Attorney General to prosecute the union for violating § 302. Or they may ask the Attorney General to seek an injunction. Or they may file a complaint with the National Labor Relations Board on the ground that a violation of § 302 or a similar statute amounts to an unfair labor practice under the National Labor Relations Act. See WKYC-TV, Inc., 359 NLRB 286, 289 n.13 (2012); Int‘l Bhd. of Elec. Workers, Local No. 2088, AFL-CIO (Lockheed), 302 NLRB 322, 325 n.8 (1991). Many employees, including employees in this circuit, have taken this last route. See, e.g., Stewart v. NLRB, 851 F.3d 21 (D.C. Cir. 2017); United Food & Commercial Workers Dist. Union Local One, AFL-CIO v. NLRB, 975 F.2d 40 (2d Cir. 1992); NLRB v. U.S. Postal Serv., 833 F.2d 1195 (6th Cir. 1987); Peninsula Shipbuilders’ Ass‘n v. NLRB, 663 F.2d 488 (4th Cir. 1981); NLRB v. Atlanta Printing Specialties & Paper Prod. Union 527, AFL-CIO, 523 F.2d 783 (5th Cir. 1975);
Indus. Towel & Unif. Serv., a Div. of Cavalier Indus., Inc., 195 NLRB 1121 (1972); NLRB v. Penn Cork & Closures, Inc., 376 F.2d 52 (2d Cir. 1967).
IV.
Ohlendorf and Adams separately argue that the union breached its duty of fair representation under § 9(a) of the National Labor Relations Act.
Be that as it may, we cannot say that the employees have shown arbitrariness or bad faith. “[A] union‘s actions are arbitrary only if, in light of the factual and legal landscape at the time of the union‘s actions, the union‘s behavior is so far outside a wide range of reasonableness as to be irrational.” Air Line Pilots Ass‘n, Int‘l v. O‘Neill, 499 U.S. 65, 67 (1991). The problem with the employees’ claim is that they agreed to the window-period and certified-mail requirements when they signed the authorization form. Even if the requirements may seem burdensome, no one forced the employees to sign the checkoff authorizations. Having agreed to the two requirements, they are not in a position to say that the union acted arbitrarily in enforcing them.
For like reasons, the union‘s decision to enforce the requirements does not qualify as bad faith. To demonstrate bad faith, a plaintiff must show that the union acted with an improper intent, purpose, or motive encompassing fraud, dishonesty, and other intentionally misleading conduct. Merritt v. Int‘l Ass‘n of Machinists & Aerospace Workers, 613 F.3d 609, 619 (6th Cir. 2010). The employees have not met that standard. They do not allege that the union‘s decision to enforce the requirements was misleading or a product of fraud or dishonesty. The
authorization form signed by each of them spelled out the requirements they would need to follow to revoke their assignments. In holding the employees and itself to this contract, the union did not act in bad faith.
For these reasons, we affirm the district court‘s judgment.