Formosa Plstcs Corp v. Kaplan

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________

No. 95-31049
Summary Calendar
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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,

versus

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this opinion should not be published and is not precedent except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).

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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).

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