Case Information
*1 United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 18, 2016 Decided June 17, 2016
No. 14-1185 L AURA S ANDS , P ETITIONER v.
N ATIONAL L ABOR R ELATIONS B OARD ,
R ESPONDENT
U NITED F OOD AND C OMMERCIAL W ORKERS I NTERNATIONAL
U NION , L OCAL 700, I NTERVENOR On Pеtition for Review of an Order of the National Labor Relations Board
Aaron B. Solem argued the cause for petitioner. With him on the briefs was Glenn M. Taubman .
Robert J. Englehart , Supervisory Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Richard F. Griffin , General Counsel, John H. Ferguson , Associate General Counsel, Linda Dreeben , Deputy Associate General Counsel, and Doug Callahan , Attorney.
James B. Coppess argued the cause for intervenor. With him on the brief was Laurence Gold .
Before: T ATEL , G RIFFITH , and K AVANAUGH , Circuit Judges .
G RIFFITH , Circuit Judge
: In this matter, the National Labor Relations Board held that a union does not commit an unfair labor practice by failing to tell a prospective member how much money she will save in reduced dues should she choose not to join. But we cannot reach the merits of that decision. Actions undertaken by the union since the filing of this petition for review have rendered the matter moot. For that reason, we dismiss the petition for review as moot and vacate the Board’s order undеr our equitable authority.
I
In 2004, petitioner Laura Sands began working at a Kroger grocery store in Crawfordsville, Indiana, whose employees had been organized by the United Food and Commercial Workers International Union, Local 700. The collective-bargaining agreement between Kroger and the union included a “union-security clause,” which provided that all grocery department еmployees—even those who did not join the union—had to pay dues to the union to cover the costs of representational activities.
When Sands began her job at the store, the union sent her a letter and membership application explaining to her what rights and obligations she had under the union-security clause. The application explained that, whether she joined the uniоn or not, she was required to pay dues to the union to compensate it for acting as her collective-bargaining agent. The application was also careful to explain that she need not join the union, and that if she did not, she could refuse to pay for the union’s activities that were unrelated to collective bargaining. Important for this case, however, neither the letter nor the application told her how much money she would save if she did not join the union, which for Sands was about $3.50 per month.
Sands decided to join the union and paid all her dues until she quit work at the store in 2005. At that time, she sent the union a letter claiming that she “never wanted to join [the union] in the first place,” and that the union had “deliberately misled” her about her obligations under the union-security clause. [1] Shortly thereafter, Sands filed an unfair labor practice charge with the Board, and the General Counsel issued a complaint against the union. According to the complaint, the union violated section 8 of the National Labor Relations Act (NLRA) by failing to tell Sands when she began work at Kroger how much less in dues she would have to pay if she did not join the union. See 29 U.S.C. § 158(b)(1)(A). Before the administrative law judge (ALJ), the uniоn argued that Sands was not entitled to that information until after she chose not to join the union. The General Counsel and Sands argued that she was entitled to the information at the same time that she was told about the union-security clause. The ALJ recommended dismissing the complaint based on prior Board decisions supporting the union’s position.
Both the General Counsel and Sands filed exceptions with thе Board, arguing that the Board decisions on which the ALJ relied conflicted with D.C. Circuit case law. In particular, they cited our decision in Penrod v. NLRB , 203 F.3d 41 (D.C. Cir. 2000), where we held that new employees must be given “sufficient information” to decide whether to join the union, including “the percentage of union dues that would be chargeable” should they not join. Id. at 47 (applying Abrams v. Commc’ns Workers of Am. , 59 F.3d 1373 (D.C. Cir. 1995)). The Board agreed that Penrod and Abrams , the case on which Penrod relied, would answer the question at hand against the union, but quite remarkably dismissed the complaint anyway. The Board asserted that it was not bound to follow Penrod and Abrams because our decisions there had failed to account for a policy that underlay the Board’s position. UFCW, Local 700 (Kroger) , 361 N.L.R.B. No. 39 (2014). Before us, the Board recognizes again, as it did below, that our prior decisions would compel us to vacate the Board’s order on the merits. The Board hoрes that we will revisit those decisions en banc.
Sands petitions for review of the Board’s order and asserts jurisdiction under 29 U.S.C. § 160(f). But this case is moot, and we do not have jurisdiction to reach the merits of the petition.
II
All the time that Sands worked at Kroger, she paid full dues as a union member. It was her claim to a refund of at least a portion of those dues that gave her a personal interest in this cаse. But that interest has disappeared. In 2014, about two months after Sands petitioned this court for review of the Board’s decision rejecting her claims, the union refunded the dues she had paid by sending her a check for $350, claiming that those funds equaled the total dues Sands had paid plus interest. [2] With a refund of her dues in hand, Sands can no longer claim her payment of dues as the basis for her interest in this matter.
Sands expressly waived any argument to the contrary.
See Defs. of Wildlife v. Jewell
,
We hаve
jurisdiction only over
live cases or
controversies. U.S. C ONST . art. III, § 2, cl. 1. We cannot
“retain jurisdiction over cases in which one or both of the
parties plainly lack a continuing interest, as when the parties
have settled.”
Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc.
,
In her briefs, Sands argues against mootness by invoking
theories of relief unrelated to her claim for a refund of a
portion of the dues she has paid, but none of them establishes
her personal interest in what remains of this dispute. First,
Sands asks that the union be ordered to post a notice at the
grocery store where she worked announcing to the public that
the union violated thе NLRA. As Sands points out, the
possibility of such a remedial notice usually keeps an unfair
labor practice case from becoming moot, even if the parties
resolve the underlying dispute.
See Am. Fed’n of Gov’t Emps.
,
But the cases on which Sands relies, in which the interest
of a particular affected employee had disappeared, assume an
ongoing relationship between the petitioner and thе company
or union that committed a labor violation. Only then can the
posting of a remedial notice address the
petitioner
’s injury.
For example, where the Board petitions to enforce its order
requiring a remedial notice to be posted, the Board has an
independent interest at stake even if the employee involved in
the suit quits the company or dies.
See, e.g.
,
Dep’t of Justice
v. FLRA
,
Our decision in American Federation of Government Employees, Local 1941, AFL-CIO v. Federal Labor Relations Authority , 837 F.2d 495 (D.C. Cir. 1988), is instructive. In AFGE , an employer denied an employee’s request to have a union representative with him at a disciplinary hearing. Rather than contest that decision, the employee resigned from work. Aftеr the employee died, the union pressed the employee’s claim to the Federal Labor Relations Authority, which concluded that no labor violation had occurred. The union appealed that decision to us. We held that the case was not moot, despite the employee’s death. The union, we reasoned, had “a derivative right to be present, on the employee’s request,” at the disciplinary hearing. This derivative right gave the union a direct stake in the outcome— standing to contest the denial of representation and to seek the posting of a notice of a violation of labor law. Id. at 497 n.2. The controversy did not survive the employee’s death because of a free-floating right that anyone would have, whenever a violation occurs, to the posting of a notice. Rather, the controversy remained alive because the union had a personal and particular ongoing interest in the posting.
Sands’s situation is much different. She ended her relationship with the union when she quit her job at the grocery store in 2005, and her counsel conceded at oral argument that there is no reason to think she will work there again. Thus, evеn if posting a notice about the labor violation might affect a current store employee, it cannot redress Sands’s injury.
Sands resists this conclusion, urging us to follow the reasoning of the Sixth Circuit in Montague v. NLRB , 698 F.3d 307 (6th Cir. 2012). In Montague , a union and an employer negotiated a preliminary agreement before employees had recognized the union, but the Board found no violation of the NLRA. Two employees petitioned for review of that decision. At the time, the company оperated about ninety facilities, but the facility where the alleged violation took place was no longer covered by the agreement or even owned by the company. Accordingly, the company argued that the case was moot. But the employees and the Board emphasized that should the Board lose the appeal, the company and the union wоuld have to post notices, presumably at the company’s other facilities, acknowledging their violation of law. Id. at 313. This requirement, they argued, kept the case from being moot. The court accepted that position without further reasoning.
To the extent the Sixth Circuit held that an employee without a personal interest in the posting of a remedial notice can pursue hеr case on the basis of that remedy, we disagree. Instead, our approach is more like that of the Second Circuit, which has also recognized under similar facts that an unfair labor practice case is moot when the petitioner lacks an ongoing personal interest in the proceedings. See Gally v. NLRB , 487 F. App’x 661 (2d Cir. 2012) (unpublished) (dismissing as moot an employee’s petition for review because the employee was no longer a union member subject to a disputed requirement and the union had refunded dues); Orce v. NLRB , 133 F.3d 907 (2d Cir. 1997) (unpublished) (dismissing as moot an employee’s petition for review because the employee had “no ‘personal stake’ in the requested refund” of union dues and the employer was out of business). This approach adheres to the basic requirement that our jurisdiction dеpends on all parties having a “continuing interest” in the case before us. Friends of the Earth , 528 U.S. at 192.
Sands next argues that the case is not moot because she
seeks relief on behalf of those still employed by the grocery
store whose rights the union also violated. But Sands cannot
avoid mootness by asserting the rights of third parties when
she herself fails to meet Article III’s requirements.
See
Lepelletier v. FDIC
, 164 F.3d 37, 42 (D.C. Cir. 1999)
(“Because [the appellant] seeks to raise the rights of third
parties . . . he must show that he has standing under Article
III,
and
that he satisfies third party, or
jus tertii
, standing
requirements.”). Sands argues that the Eighth Circuit has
allowed an employee to seek judicial review on behalf of
other employees, but that case does not help her because
unlike Sands, that petitioner satisfied Article III standing.
See
Bloom v. NLRB
, 153 F.3d 844 (8th Cir. 1998),
vacated on
other grounds
,
Finally, Sands warns that if we dismiss the petition as moot, the union could resume its illegal conduct. To be sure, ordinarily that would be our concern as well. In Knox v. Service Employees International Union, Local 1000 , 132 S. Ct. 2277 (2012), a union similarly attempted to moot a case by offering to refund dues after certiorari was granted. The Supreme Court stressed that “[s]uch postcertiorari maneuvers designed to insulate a decision from review . . . must be viewed with a critical eye.” Id. at 2287. The Court applies a “stringent” standard in such cases: “A case might become moot if subsequent events made it absolutely сlear that the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth , 528 U.S. at 189 (quoting United States v. Concentrated Phosphate Export Ass’n , 393 U.S. 199, 203 (1968)). Because the union mooted this case after Sands petitioned for review, the Board and the union face an uphill battle to show that it is “absolutely clear” that the labor violation at issue cannot “reasonably be expected” to happen again. Id.
The Board and the union have met this “heavy burden.”
Friends of the Earth
,
III
Although this case is moot, our inquiry does not end
there. Instеad, we must consider whether to vacate the
Board’s order rejecting Sands’s position. “[T]he established
practice . . . in the federal system . . . is to reverse or vacate
the judgment below” when a civil case becomes moot while
awaiting appellate review.
Humane Soc’y of U.S. v.
Kempthorne
, 527 F.3d 181, 184 (D.C. Cir. 2008) (quoting
Arizonans for Official English v. Arizona
, 520 U.S. 43, 71
(1997)). Vacatur in the event of mootness applies equally to
unreviewed administrative orders.
A. L. Mechling Barge
Lines, Inc. v. United States
, 368 U.S. 324, 329 (1961);
see
also Gally v. NLRB
, 487 F. App’x 661, 663 (2d Cir. 2012)
(unpublished) (vacating a similarly mooted petition for
review). Its purpose is to “clear[] the path for future
relitigation of the issues” and “eliminate[] a judgment, review
of which was prevented through happenstance.”
U.S. Bancorp
Mortg. Co. v. Bonner
, 513 U.S. 18, 22-23 (1994) (quoting
United States v. Munsingwear, Inc.
,
Because vacatur is equitable in nature, we look to notions
of fairness when deciding whether to use the remedy.
See id.
at 25;
Kempthorne
,
The circumstances here counsel in favor of vacating the Board’s order. First, at oral argument neither the Board nor thе union resisted Sands’s request for vacatur. Keeping in mind that vacatur is an equitable remedy, we consider the opposing side’s silence to be significant.
Second, the roles of the parties in mooting the case counsel in favor of vacatur. The union prevailed below and mooted the case by sending Sands a refund check after she appealed, which can be reasоnably seen as a “maneuver[] designed to insulate a decision from review.” Knox , 132 S. Ct. at 2287. Although Sands participated to some degree by failing to return the check, [3] there was no “settlement” of the kind considered in Bancorp . The parties in Bancorp “stipulated to a consensual plan” that, once accepted by the bankruptcy court, “constituted a settlement that mooted the case.” 513 U.S. at 20. There was no agreement of that type between Sands and the union. See Kempthorne , 527 F.3d at 185 (“We have interpreted Bancorp narrowly.”). Furthermore, one rationale underlying Bancorp is tо prevent litigants from “manipulat[ing] the judicial system by roll[ing] the dice” below and then “wash[ing] away any unfavorable outcome through use of settlement and vacatur.” Id. at 186 (quoting Nat’l Black Police Ass’n v. District of Columbia , 108 F.3d 346, 351-52 (D.C. Cir. 1997) (internal quotation marks omitted)). We have no such concern about any “manipulative purpose” on Sands’s part that would caution against vacatur here. Id.
Finally, we recognize that vacatur would serve the public interest by furthering the traditional purpose of the doctrine: clearing the path for future relitigation of the issues. See Bancorp , 513 U.S. at 22-23. The General Counsel has withdrawn at least one pending complaint raising the same issues as Sands on the basis of the Board’s decision below, SEIU/District 1199 & Serv. Emps. Int’l Union (Rescare, Inc.) , NLRB No. 11-CB-003743 (2014), and the General Counsel’s refusal to bring a complaint is unreviewable, NLRB v. Sears, Roebuck & Co. , 421 U.S. 132, 155 (1975). Vacatur will prevent the General Counsel from further relying on the Board’s unreviewed decision, thereby opening the door to reconsideration of the merits of the legal issues in this case. Accordingly, we exercise our equitable power to vacate the Board’s order.
IV
We dismiss the petition for review as moot and vacate the Board’s order.
Notes
[1] Letter from Laura Sands to the Secretary-Treasurer, United Food and Commercial Workers International Union, Local 700 (June 25, 2005). Although Sands’s letter to the union and her charge filed with the Board claimed that she received inadequate notice regarding both her right not to join the union generally as well as the amount she would save in monthly dues were she not to join, the General Counsel’s complaint focused exclusively on the union’s failure to adequately explain the financial implications of not joining.
[2] Although Sands would have avoided paying only about $3.50 per month in partial union expenses had she never joined the union, the union refunded Sands the significantly larger amount of $350. The union explained that it did so “in an unsuccessful attempt to avoid wasting resources in litigation.” Union Br. 5 n.1.
[3] After briefing in this case was complete, the Supreme Court decided Campbell-Ewald Co. v. Gomez , 136 S. Ct. 663 (2016), which held that an unaccepted settlement offer does not moot a case. Id. at 666.