UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-2127
FRED ASHLEY; RANDY FOWLER; HENRY JUAREZ;
ANDREW TURNER,
Plaintiffs - Appellants,
versus
NATIONAL LABOR RELATIONS BOARD; ROBERT J.
BATTISTA, In his official capacity as Chairman
of the National Labor Relations Board; PETER
C. SCHAUMBER, In his official capacity as a
member of the National Labor Relations Board;
WILMA B. LIEBMAN, In her official capacity as
a member of the National Labor Relations
Board; PETER N. KIRSANOW, In his official
capacity as a member of the National Labor
Relations Board; DENNIS P. WALSH, In his
official capacity as a member of the National
Labor Relations Board; WILLIE L. CLARK, JR.,
In his official capacity as the Regional
Director of the Eleventh Region of the
National Labor Relations Board,
Defendants - Appellees.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Senior
District Judge. (1:06-cv-00316-WLO-PT)
Argued: October 30, 2007 Decided: November 20, 2007
Before MICHAEL, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: William L. Messenger, NATIONAL RIGHT TO WORK LEGAL
FOUNDATION, Springfield, Virginia, for Appellants. Kye D.
Pawlenko, Office of the General Counsel, NATIONAL LABOR RELATIONS
BOARD, Washington, D.C., for Appellees. ON BRIEF: Philip M. Van
Hoy, Stephen Dunn, VAN HOY, REUTLINGER, ADAMS & DUNN, Charlotte,
North Carolina, for Appellants. Ronald Meisburg, General Counsel,
John E. Higgins, Jr., Deputy General Counsel, John H. Ferguson,
Associate General Counsel, Margery E. Lieber, Deputy Associate
General Counsel, Eric G. Moskowitz, Assistant General Counsel,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Plaintiffs Fred Ashley, Randy Fowler, Henry Juarez, and Andrew
Turner (collectively, Plaintiffs) bring this action against the
National Labor Relations Board (NLRB or Board). Plaintiffs allege
that when the Board certified the International Union, United
Automobile and Agricultural Implement Workers of America (UAW) as
their exclusive bargaining representative without entertaining
their objections during the certification proceeding, the Board
deprived them of their liberty and property interests without due
process of law, in violation of the Fifth Amendment. The district
court granted the Board’s motion to dismiss for lack of standing
and subject matter jurisdiction. We affirm, albeit on somewhat
different grounds.
I.
Plaintiffs are employees of Thomas Built Buses, Inc. (TBB).
TBB has a relationship with UAW that the district court described
as “interesting” -- it appears that for some time, TBB has been
assisting UAW in its organizing efforts at the TBB plant.
In June 2005, UAW requested that the NLRB conduct a
certification election at the TBB plant, in which TBB employees
would vote to determine whether UAW would become the exclusive
representative of the TBB employees. One day prior to the
election, TBB circulated a memorandum that implied that non-union
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employees would soon be subject to higher benefit costs. On the
day of the election, UAW recirculated the original memorandum, with
the addition of the headline “DID YOU SEE THIS? THE COST OF BEING
NON-UNION JUST WENT UP!” After the election, the unofficial tally
was 714 in favor of UAW and 504 opposed.
Plaintiffs argue that TBB’s circulation of the benefits change
memorandum one day prior to the election constitutes objectionable
conduct and provides grounds for setting aside the election
results. After the election, Plaintiffs sought to intervene in the
representation proceeding before the NLRB through which the Board
would officially certify UAW as the representative of the TBB
employees. Plaintiffs also filed objections to the certification
with the NLRB’s Regional Director. But Plaintiffs did not file a
charge alleging that TBB or UAW engaged in unfair labor practices.
The NLRB denied Plaintiffs’s motion to intervene, refused to
consider the objections filed with the Regional Director, and
certified UAW as the exclusive bargaining representative of TBB.
Instead of filing an unfair labor practices charge against TBB
and/or UAW, Plaintiffs brought this action against the NLRB,
claiming that the Board’s certification of UAW as their exclusive
representative deprived them of protected liberty and property
interests without due process of law, in violation of the Fifth
Amendment. The district court granted the Board’s motion to
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dismiss, finding a lack of standing and no subject matter
jurisdiction. Plaintiffs appeal.
II.
The National Labor Relations Act (NLRA, or Act) empowers the
Board to investigate questions of representation and, where
necessary, to direct elections by secret ballot and to certify the
results of such elections. 29 U.S.C.A. § 159(c) (West 1998 & Supp.
2007). The typical parties to a representation proceeding are the
employer and the union, and the Board does not normally allow
individual employees to intervene in representation proceedings.
See NLRB, Casehandling Manual, Part Two, Representation
Proceedings § 11194.4 (2007), available at
http://www.nlrb.gov/Publications/Manuals. It is unsurprising,
then, that the Board denied Plaintiffs’s motion to intervene in the
representation proceeding.
The NLRA also empowers the Board to prevent any person or
entity from engaging in any unfair labor practice affecting
commerce. 29 U.S.C.A. §§ 152(1), 160(a). An employer’s
contribution of support to a labor organization constitutes an
unfair labor practice within the meaning of the Act. Id. at §
158(a)(2); see also ILGWU v. NLRB, 366 U.S. 731, 738 (1961). Thus,
in this case, if TBB’s circulation of the benefits change
memorandum constitutes a “contribution of support” to UAW, then
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TBB’s actions fall within the definition of an unfair labor
practice.
Moreover, “any person,” not just an employer or union, may
file a charge alleging that a person or entity has engaged in
unfair labor practices. 29 C.F.R. § 102.9. The General Counsel of
the Board has the final authority to decide whether to pursue the
investigation of a charge and initiate the adjudication of a
complaint under section 160 of the Act, 29 U.S.C.A. § 153(d); see
also NLRB v. United Food & Commercial Workers, 484 U.S. 112 (1987).
The Board adjudicates the merits of unfair labor practice charges
brought by the General Counsel. 29 U.S.C.A. § 160(b)-(d). If the
Board finds that an employer or union has committed an unfair labor
practice, it may issue a final order setting aside its previous
certification of a union. See Lunardi-Central Distributing Co.,
161 NLRB No. 126 at 1444-45 (1966). Any party to a Board
proceeding aggrieved by this final order may obtain review of the
order in the courts of appeals. 29 U.S.C.A. § 160(f).
Therefore, in the case at hand, Plaintiffs could have filed an
unfair labor practices charge with the Board. If the General
Counsel initiated the adjudication of charges, the Board could have
held that TBB or UAW committed unfair labor practices and set aside
its previous certification of UAW as the exclusive representative
of the TBB employees. Alternatively, if the Board held that no
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unfair labor practice had been committed, the Plaintiffs could have
appealed the Board’s final decision to this court.
Plaintiffs, however, chose not to file an unfair labor
practices charge with the Board. Instead, Plaintiffs ask us to
declare that the process that the NLRA establishes to address
unfair labor practices violates their constitutional rights,
despite the fact that they failed to pursue this process. As our
sister courts have repeatedly held, a plaintiff may not bypass a
seemingly adequate administrative process and then complain of that
process’s constitutional inadequacy in federal court. See, e.g.,
Farhat v. Jopke, 370 F.3d 580, 596 (6th Cir. 2004); Santana v. City
of Tulsa, 359 F.3d 1241, 1244 (10th Cir. 2004); Krentz v.
Robertson, 228 F.3d 897, 904 (8th Cir. 2000); Alvin v. Suzuki, 227
F.3d 107, 116 (3d Cir. 2000); Cotton v. Jackson, 216 F.3d 1328,
1331 (11th Cir. 2000); Rathjen v. Litchfield, 878 F.2d 836, 840
(5th Cir. 1989); Dusanek v. Hannon, 677 F.2d 538, 543 (7th Cir.
1982).1
Even assuming that Plaintiffs have suffered the deprivation of
a constitutionally protected liberty or property interest, which is
not at all clear, their failure to avail themselves of their right
to file an unfair labor practices charge means that they have
1
Some of these cases deal with state, rather than
administrative, procedures; however, the principle that a plaintiff
may not complain of procedures he or she has not pursued is the
same.
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failed to state a due process claim. As Judge Becker explained in
Alvin, “to state a claim for failure to provide due process, a
plaintiff must have taken advantage of the processes that are
available to him or her, unless those processes are unavailable or
patently inadequate.” 227 F.3d at 116. This is so because a due
process violation “is not complete” when the asserted deprivation
occurs; rather it is only complete when the government “fails to
provide due process.” Zinermon v. Burch, 494 U.S. 113, 126 (1990).
Accordingly, where “there is a process on the books that appears to
provide due process, the plaintiff cannot skip that process and use
the federal courts as a means to get back what he wants.” Alvin,
227 F.3d at 116. As in Alvin, here “a procedural due process
violation cannot have occurred” because “the governmental actor
provides apparently adequate procedural remedies and the plaintiff
has not availed himself of those remedies.” Id. (citing Zinermon,
494 U.S. at 126).2
2
Mathews v. Eldridge, 424 U.S. 319 (1976), on which Plaintiffs
heavily rely, involves an entirely different statutory scheme, not
governing asserted employment rights, but entitlement to social
security benefits. Eldridge “raised at least a colorable claim
that because of his physical condition and dependency upon the
disability benefits,” a pre-termination evidentiary hearing not
permitted by administrative procedures was constitutionally
required. Id. at 331. Despite Eldridge’s failure to avail himself
of other administrative remedies, these particular allegations
permitted him to bring this due process claim in federal court.
Plaintiffs make no remotely similar allegations here.
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III.
Because Plaintiffs did not file an unfair labor practices
charge complaining of TBB’s unlawful assistance to UAW, they have
failed to state a due process claim. Accordingly, the judgment of
the district court dismissing this action is
AFFIRMED.
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