Mulhall v. Unite Here Local 355

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 09-12683 U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 10, 2010
JOHN LEY
D. C. Docket No. 08-61766-CV-PAS
CLERK

MARTIN MULHALL,

Plaintiff-Appellant,

versus

UNITE HERE LOCAL 355,
HOLLYWOOD GREYHOUND TRACK, INC.,
d.b.a. Mardi Gras Gaming,

Defendants-Appellees.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 10, 2010)

Before BARKETT and MARCUS, Circuit Judges, and HOOD,* District Judge.

MARCUS, Circuit Judge:

*
Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
 Martin Mulhall (“Mulhall”), an employee at the Hollywood Greyhound

Track, Inc., d/b/a Mardi Gras Gaming (“Mardi Gras”), appeals from the district

court’s dismissal of his complaint against Mardi Gras and UNITE HERE Local

355 (“Unite”), a labor union, for violations of § 302 of the Labor Management

Relations Act (“LMRA”). Mulhall sued Unite and Mardi Gras to enjoin

enforcement of a Memorandum of Agreement (“MOA”), whereby Unite agreed to

spend money in support of Mardi Gras’ public campaign to obtain a gaming

license, in exchange for Mardi Gras’ assistance in making Unite the exclusive

bargaining agent for Mardi Gras’ currently non-unionized workforce. Appellant

Mulhall, who vigorously opposes being unionized, claims that the organizing

assistance promised by Mardi Gras violates § 302 of the LMRA, which makes it

illegal for an employer to deliver, or for a union to receive, any “thing of value,”

subject to limited exceptions. 29 U.S.C. § 186(a)-(b). The district court dismissed

Mulhall’s complaint for lack of standing, holding that he lacked a cognizable

injury. After thorough review, we conclude, however, that Mulhall has standing to

prosecute this claim in federal court, and therefore that the case is justiciable.

Accordingly, we reverse and remand for further proceedings.

I.

Mulhall’s grievance stems from a Memorandum of Agreement concluded

2
between Mardi Gras and Unite on August 23, 2004. The substance of the

agreement was as follows. The local union, Unite, promised to lend financial

support to a ballot initiative regarding casino gaming that would benefit Mardi

Gras, and, if recognized as the exclusive bargaining agent for Mardi Gras’

employees, to refrain from picketing, boycotting, striking, or undertaking “other

economic activity” against Mardi Gras.1 In exchange, Mardi Gras promised to help

Unite organize the company’s non-unionized workforce. This assistance notably

included providing complete lists of Mardi Gras’ employees, including their job

classifications, departments, and home addresses;2 the use of Mardi Gras’ property,

including non-public areas, for organizing;3 a “neutrality agreement” (which

Mulhall calls a “gag clause”) that prohibits any speech or actions by Mardi Gras or

1
“During the life of this Agreement, the Union will not engage in a strike, picketing[,] or
other economic activity at any gaming facility covered by this Agreement . . . .” MOA ¶ 11. See
also Complaint, ¶ 11 (describing promises of monetary and other support for ballot proposition
concerning gaming).
2
“Within ten (10) days following receipt of written notice of intent to organize
Employees, the Employer will furnish the Union with a complete list of Employees, including
both full and regular part-time Employees, showing their job classifications, departments[,] and
addresses. Thereafter, the Employer will provide updated complete lists monthly, or at a longer
period of time if the Union does not request the lists monthly.” MOA ¶ 8.
3
“If the Union provides written notice to the Employer of its intent to organize
Employees covered by this Agreement, the Employer shall provide access to its premises and to
such Employees by the Union. The Union may engage in organizing efforts in non-public areas
of the gaming facility during Employees’ non-working times (before work, after work, and
during meals and breaks) and/or during such other periods as the parties may mutually agree
upon.” MOA ¶ 7.

3
its agents that state or imply opposition to the union;4 a waiver of Mardi Gras’ right

to seek NLRB-supervised secret elections to verify the union’s majority status, and

an agreement to abide by a less formal “card-check” procedure instead;5 and a

promise not to file unfair labor practice charges against Unite for violations of

employee rights during the union’s organizing campaign.6

Pursuant to the MOA, Unite spent over $100,000 campaigning for the

gaming-related ballot initiative favored by Mardi Gras. Thereafter, in May and

July 2008, Unite sent Mardi Gras written notices of its intent to organize Mardi

Gras’ employees, and demanded that Mardi Gras provide the organizing assistance

promised in the MOA. Mardi Gras, however, refused to provide the assistance,

claiming, with the advice of new legal counsel, that the MOA was illegal and

4
“The Employer will take a neutral approach to unionization of Employees. The
Employer will not do any action nor make any statement that will directly or indirectly state or
imply any opposition by the Employer to the selection by such Employees of a collective
bargaining agent, or preference for or opposition to any particular union as a bargaining agent.”
MOA ¶ 4.
5
“The Union may request recognition as the exclusive collective bargaining agent for
Employees. The Arbitrator selected through the procedures set out [herein], or another person
mutually agreed to by Employer and Union, will conduct a review of Employees’ authorization
cards and membership information submitted by the Union in support of its claim to represent a
majority of such Employees. If that review establishes that a majority of such Employees has
designated the Union as their exclusive colletive bargaining representative or joined the Union,
the Employer will recognize the union as such representative of such Employees. The Employer
will not file a petition with the National Labor Relations Board for any election in connection
with any demand for recognition provided for in this agreement.” MOA ¶ 9.
6
“The Union and the Employer will not file any charges with the National Labor
Relations Board in connection with any act or omission occurring within the context of this
agreement; arbitration . . . shall be the exclusive remedy.” MOA ¶ 9.

4
unenforceable.

Unite responded in late September 2008 by filing a petition to compel

arbitration, pursuant to the MOA’s arbitration clause, in the United States District

Court for the Southern District of Florida. See Unite HERE Local 355 v.

Hollywood Greyhound Track, Inc., Case No. 08-61655-PAS (S.D. Fla. 2008).7

Unite requested enforcement of the MOA, but also made clear that if the MOA

were found unlawful, it would “request restitutionary damages from the arbitrator

or court based on quantum meruit for the time and money the Union and its

members spent on the political campaign to obtain a gaming license for Mardi Gras

(estimated at over $100,000) and over $100,000 in business which Mardi Gras

would have lost from a boycott.” Joint Scheduling Rpt., February 23, 2009, at *2.

Mardi Gras filed an answer and counterclaimed for a declaration that the MOA was

invalid.

On April 15, 2009, the district court entered an order compelling arbitration

of the parties’ dispute, including Mardi Gras’ claim that the MOA was

unenforceable. The matter was arbitrated, and on August 6, 2009, an arbitrator

returned a ruling in favor of Unite, finding the MOA enforceable and requiring

Mardi Gras to provide the requested organizing assistance. Mardi Gras then

7
Unite named Mardi Gras as the sole respondent, and Mulhall has never been a party to
Unite’s separate lawsuit against Mardi Gras.

5
moved the district court to vacate the award, and Unite moved to confirm it. See

Hollywood Greyhound Race Track, Inc. v. Unite HERE Local 355, Case No. 09-

61760-WJZ (S.D. Fla. 2009). The district court denied Mardi Gras’ motion and

confirmed the award in most material respects. The court granted Mardi Gras’

motion to vacate the award only insofar as the arbitrator had unilaterally extended

the terms of the MOA by one year, apparently as an equitable remedy for Mardi

Gras’ breach in failing to provide the contractually promised organizing assistance.

See Hollywood Greyhound Race Track, Inc. v. Unite HERE Local 355, Case No.

09-61760-Zloch (S.D. Fla. 2009) (Order granting in part and denying in part

motions to vacate and to confirm arbitration award, at 6).

All the while, Mulhall was pursuing his own effort to block enforcement of

what he characterized as an illegal and collusive arrangement between a union and

an employer. Not long after Mardi Gras filed its counterclaim for declaratory

relief, Mulhall filed his own action (the instant case) seeking an injunction

pursuant to § 302(e) of the LMRA, 29 U.S.C. § 186(e), claiming that the MOA

violated § 302(a)-(b) of the statute. On April 22, 2009, one week after ordering

Mardi Gras and Unite to arbitrate the validity of the MOA, the district court

dismissed Mulhall’s complaint for lack of standing, holding that he had failed to

show an injury-in-fact that was “actual or imminent,” since it was possible that he

6
would never be unionized even if Unite received all of the specified organizing

assistance from the Hollywood Greyhound Track.

Mulhall timely filed this appeal, claiming to have both Article III and

prudential standing to seek to enjoin the MOA pursuant to § 302. Unite disagrees,

and also says that Mulhall’s claim is not ripe for review because Mardi Gras has

refused to provide organizing assistance, and may never do so.

II.

A.

We consider first whether Mulhall has Article III standing. As the party

invoking federal jurisdiction, Mulhall bears the burden of demonstrating his

standing to sue. Pittman v. Cole, 267 F.3d 1269, 1282 (11th Cir. 2001). To do so,

he must show that: (1) he has suffered, or imminently will suffer, an injury-in-fact;

(2) the injury is fairly traceable to the defendants’ conduct; and (3) a favorable

judgment is likely to redress the injury. Harrell v. The Florida Bar, 608 F.3d 1241,

1253 (11th Cir. 2010). “At the pleading stage, general factual allegations of injury

resulting from the defendant’s conduct may suffice, for on a motion to dismiss we

‘presum[e] that general allegations embrace those specific facts that are necessary

to support the claim.’” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)

7
(quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889 (1990)).8 Whether

Mulhall has standing to seek an injunction of the MOA pursuant to § 302 is a legal

issue subject to de novo review. Region 8 Forest Serv. Timber Purchasers Council

v. Alcock, 993 F.2d 800, 806 (11th Cir. 1993).

To demonstrate an injury-in-fact, Mulhall is required to show that he has a

legally cognizable interest that has been or is imminently at risk of being invaded.

Lujan, 504 U.S. at 560. This requirement merely ensures that Mulhall, like any

plaintiff, “has ‘alleged such a personal stake in the outcome of the controversy as

to assure that concrete adverseness which sharpens the presentation of issues.’”

Flast v. Cohen, 392 U.S. 83, 99 (1968) (quoting Baker v. Carr, 369 U.S. 186, 204

(1962)). Importantly, therefore, the relevant question is not whether Mulhall has a

legal right to be free from involuntary unionization, or is legally entitled to enjoin

the MOA. “[S]tanding in no way depends on the merits of the plaintiff’s

contention that particular conduct is illegal,” Warth v. Seldin, 422 U.S. 490, 500

(1975); it “focuses on the party seeking to get his complaint before a federal court

8
Although a court may consider materials beyond the pleadings if the defendant has
mounted a factual attack on subject-matter jurisdiction, there is no suggestion in this record that
the defendant has done so, and we consider this to be a facial attack. A plaintiff defending
against a facial attack on jurisdiction enjoys “safeguards similar to those retained when a Rule
12(b)(6) motion to dismiss for failure to state a claim is raised,” and both the district court and a
reviewing court “must consider the [well-pleaded] allegations in the plaintiff’s complaint as
true.” McElmurray v. Consol. Gov’t of Augusta-Richmond County, 501 F.3d 1244, 1251 (11th
Cir. 2007) (emphasis added) (citations omitted).

8
and not on the issues he wishes to have adjudicated,” Flast, 392 U.S. at 99. At

issue today is only whether Mulhall has a stake in this controversy that is real

enough and concrete enough to entitle him to be heard in a federal district court

concerning his § 302 claim, nothing more.

Mulhall has a cognizable associational interest under the First Amendment

to challenge the alleged collusive arrangement between the employer and the union

under § 302. If Unite is certified as the majority representative of Mardi Gras’

employees, Mulhall will have been thrust unwillingly into an agency relationship,

where the union is his “exclusive representative[] . . . for the purposes of collective

bargaining in respect to rates of pay, wages, hours of employment, or other

conditions of employment” under § 9(a) of the National Labor Relations Act

(“NLRA”), 29 U.S.C. § 159(a). This arrangement creates a fiduciary relationship,

akin to that between a trustee and beneficiary. See Chauffeurs, Teamsters, and

Helpers, Local 391 v. Terry, 494 U.S. 558, 567 (1990). Moreover, regardless of

whether Mulhall can avoid contributing financial support to or becoming a member

of the union, cf. Fla. Const. art. I, § 6 (“The right of persons to work shall not be

denied or abridged on account of membership or non-membership in any labor

union or labor organization.”), its status as his exclusive representative plainly

affects his associational rights. His views, for example, like those of any

9
employee, may be at variance with

a wide variety of activities undertaken by the union in its role as
exclusive representative. His moral or religious views about the
desirability of abortion may not square with the union’s policy in
negotiating a medical benefits plan. One individual might disagree
with a union policy of negotiating limits on the right to strike,
believing that to be the road to serfdom for the working class, while
another might have economic or political objections to unionism
itself. An employee might object to the union’s wage policy because
it violates guidelines designed to limit inflation, or might object to the
union’s seeking a clause in the collective-bargaining agreement
proscribing racial discrimination. The examples could be multiplied.

Abood v. Detroit Bd. of Ed., 431 U.S. 209, 222 (1977). Thus, it has long been

recognized that such “association for the purpose of advancing economic, as well

as political or religious, interests falls within the protection of the First

Amendment.” Scott v. Moore, 680 F.2d 979, 990 (5th Cir.1982) (en banc), rev’d

on other grounds sub nom. United Bhd. of Carpenters & Joiners of Am., Local

610, AFL-CIO v. Scott, 463 U.S. 825 (1983) (citing Bhd. of R.R. Trainmen v.

Virginia, 377 U.S. 1, 8 (1964), Thomas v. Collins, 323 U.S. 516, 531 (1945), and

Abood, 431 U.S. at 222)).

Just as “[t]he First Amendment clearly guarantees the right to join a union,”

Hobbs v. Hawkins, 968 F.2d 471, 482 (5th Cir. 1992) (citing Thomas, 323 U.S. at

532), it “presupposes a freedom not to associate” with a union, Roberts v. U.S .

Jaycees, 468 U.S. 609, 623 (1984) (citing Abood, 431 U.S. at 234-235). This

10
freedom of course may be outweighed by other important governmental interests,

such as the promotion of productive labor-management relations. In this instance,

for example, although the federally-created right of a majority-favored union to

supersede an employee’s direct bargaining relationship with his employer amounts

to “compulsory association,” Acevedo-Delgado v. Rivera, 292 F.3d 37, 42 (1st Cir.

2002), that compulsion “has been sanctioned as a permissible burden on

employees’ free association rights,” id., based on a legislative judgment that

collective bargaining is crucial to labor peace, Abood, 431 U.S. at 224.

The relevant point here, however, is that employees like Mulhall have such

an associational interest. See Scott, 680 F.2d at 990 (holding that First

Amendment interests of nonunion employees to work in nonunion environment

were invaded by pro-union conspiracy); see also Rivera, 292 F.3d at 42. In other

words, while “compulsory affiliation with . . . [a] union does not, without more,

violate the First Amendment rights” of employees, Lehnert v. Ferris Faculty Ass’n,

500 U.S. 507, 517 (1991) (addressing both private- and public-employer contexts),

it is no less true that “compelling an employee . . . to belong to . . . a union . . .

implicates that person’s First Amendment right not to associate,” Romero v.

Colegio De Abogados De P.R., 204 F.3d 291, 301 (1st Cir. 2000) (emphasis

11
added).9 We conclude that Mulhall has a legally cognizable associational interest.

We do not purport to assess the strength of Mulhall’s interest; we say only that it is

enough to allow him to get his ticket stamped for admission to the federal court in

order to be able to argue that the arrangement between Mardi Gras and Unite is

illegal under § 302.

Mulhall has also adequately alleged that this associational interest is at

imminent risk of invasion, because Mardi Gras’ provision of considerable and

varied organizing assistance pursuant to the MOA will substantially increase the

likelihood that Mulhall will be unionized against his will. Under controlling law, a

plaintiff faces an “imminent” harm when there is “a realistic danger of sustaining a

direct injury as a result” of the challenged action. Fla. State Conf. of NAACP v.

Browning, 522 F.3d 1153, 1161 (11th Cir. 2008) (quoting Babbitt v. United Farm

Workers Nat’l Union, 442 U.S. 289, 298 (1979)). “How likely is enough is

necessarily a qualitative judgment,” id., but, under our law, “probabilistic harm is

enough injury in fact to confer standing in the undemanding Article III sense,” id.

at 1163 (citation and alteration omitted).

Mulhall has adequately alleged that the organizing assistance promised by

9
Indeed, even if Mulhall’s associational interest were characterized as being primarily
commercial in nature, his interest would still be entitled to protection under the First
Amendment, albeit to a lesser extent. See Roberts v. U.S. Jaycees, 468 U.S. 609, 634 (1984)
(O’Connor, J., concurring).

12
Mardi Gras in the MOA is valuable, and indeed essential, to Unite’s effort to gain

recognition. As an initial matter, the complaint says that the provision of lists

showing the classifications, departments, and home addresses of Mardi Gras’

employees “permits Local 355 to target employees during organizing campaigns

and send union organizers to employees’ homes,” Complaint ¶ 17(b); that access to

Mardi Gras’ facilities, including “non-public areas of the gaming facility” during

non-working hours, “is objectively useful to Local 355 for organizing nonunion

employees,” id. ¶ 20(b); that the neutrality agreement is also useful to Local 355

because, among other things, it silences potentially persuasive opponents of

unionization within the company, including all managers and supervisors who

otherwise might discuss the disadvantages of unionization, id. ¶ 25(b); and that

Mardi Gras’ waiver of its right to demand a secret, NLRB-conducted election,

Complaint, ¶ 10(a) -- a method which has “acknowledged superiority in

ascertaining whether a union has majority support,” Linden Lumber Division,

Summer & Co. v. NLRB, 419 U.S. 301, 304 (1974) -- similarly figured into the

quid pro quo exchange with Unite, id. ¶ 11.

The complaint in this case, moreover, highlights Unite’s own belief that the

employer’s organizing assistance is essential to its effort to gain majority status.

The complaint contains the following quotation from Unite’s own allegations in

13
parallel litigation:

[T]he Employer’s failure to abide by the Agreement’s provisions has
caused and will cause serious irreparable injuries to the Union and its
members. Without a list the Union is unable to provide information to
many of the Employer’s workers, and hence unable to obtain
recognition as the employees’ representative as contemplated by
Section 9 of the Agreement, and unable to find out from workers
whether the Employer is complying with other provisions of the
Agreement. . . . The resulting delay in recognition means a delay in
obtaining the financial benefits of union representation for employees,
and increased organizing expenses and lost revenues for the Union,
but the amount of such damages is extraordinarily burdensome to
calculate, and also there are non-financial advantages to recognition
which cannot be put into monetary terms. The Union is also suffering
irreparable injuries in loss of standing with employees and loss of
bargaining power.

Complaint ¶ 27 (quoting Unite HERE Local 355 v. Hollywood Greyhound Track,

Inc., Case No. 08-61655-PAS (S.D. Fla.) (Complaint ¶ 11)). Also noteworthy, of

course, is the consideration Unite offered for the organizing assistance: it promised

not to “picket, boycott, strike, or take other economic action against Mardi Gras,”

and that it would “expend monetary and other resources” to support a ballot

proposition favored by Mardi Gras. Id. ¶ 11. Unite ultimately spent $100,000 on

the initiative campaign, suggesting that the organizing assistance it bargained for

was significant in a monetary sense.

Taken together, the allegations in Mulhall’s complaint yield a strong

inference that the organizing assistance is a critical ingredient for Unite’s success,

14
and that, if provided, it will substantially increase the likelihood that Mulhall will

be unionized against his will. That “probabilistic harm” is a cognizable injury for

purposes of standing. Browning, 522 F.3d at 1163.10

For obvious reasons, Mulhall’s claim also satisfies the causation element of

the standing inquiry. Mulhall’s claimed injury flows from Mardi Gras’ imminent

provision of organizing assistance under the MOA, in response to Unite’s

demands. This injury is “fairly traceable” to the defendants’ conduct. Lujan, 504

U.S. at 560 (alteration omitted).

10
On appeal, Mulhall cites a number of academic authorities in support of his contention
that the organizing assistance and other concessions by Mardi Gras in the MOA substantially
increase the likelihood that Unite will achieve majority recognition. See, e.g., Laura J. Cooper,
Privatizing Labor Law: Neutrality/Card Check Agreements and the Role of the Arbitrator, 83
Ind. L.J. 1589, 1591-93 (2008) (noting that “all indications” in empirical research are that
“neutrality/card check agreements [are] . . . a remarkably successful mechanism” in achieving
recognition; explaining that neutrality agreements ban many lawful employer tactics thought to
contribute to union representation election losses, including captive audience speeches,
“aggressive and hierarchical” employer communications, and “intense personal campaigning by
supervisors” (citation omitted); and observing that it is unclear “why a non-union employer
might be willing to contract with a stranger union to forego lawful campaign tactics and a
government-conducted secret-ballot election, both of which would enhance its chances of
remaining union-free,” except as a result of “rational business judgment”); Charles I. Cohen,
Joseph E. Santucci, Jr. & Jonathan C. Fritts, Resisting its Own Obsolescence -- How the
National Labor Relations Board is Questioning the Existing Law of Neutrality Agreements, 20
Notre Dame J.L. Ethics & Pub. Pol’y 521, 523 (2006) (noting that neutrality agreements,
employee lists, and access to employer facilities “significantly increase the chances that an
organizing drive will be successful”); Adrienne E. Eaton & Jill Kriesky, Union Organizing under
Neutrality and Card Check Agreements, 55 Indus. & Lab. Rel. Rev. 42, 57 (2001) (finding
strong evidence that “[c]ard check agreements . . . substantially increased the rate of union
recognition” as compared with NLRB-conducted secret elections, and that “[r]equirements that
employers provide unions with employee lists and time limits to campaigns were both associated
with greater union success”). This material, however, is neither part of the pleadings, nor subject
to judicial notice, nor included in any affidavits or attachments to the pleadings, so we do not
consider it in resolving this facial attack on subject-matter jurisdiction.

15
 Finally, Mulhall’s allegations satisfy the redressability requirement.

“Redressability is established . . . when a favorable decision ‘would amount to a

significant increase in the likelihood that the plaintiff would obtain relief that

directly redresses the injury suffered.’” Harrell, 608 F.3d at 1260 n.7 (citation

omitted). If Mulhall obtains a judgment enjoining enforcement of the MOA, the

substantial increase in the risk of unionization attributable to the MOA will have

been eliminated.

B.

Unite Local 355 also appears to suggest that Mulhall’s claim is barred by the

prudential standing doctrine, which comprises three non-constitutional, non-

jurisdictional, policy-based limitations on the availability of judicial review. Am.

Iron and Steel Inst. v. OSHA, 182 F.3d 1261, 1274 n.10 (11th Cir. 1999). The

doctrine requires (1) that the plaintiff’s complaint fall within the “zone of interests”

protected by the statute or constitutional provision at issue; (2) that the complaint

not require the court to pass on abstract questions or generalized grievances better

addressed by the legislative branches; and (3) that the plaintiff assert his or her

own legal rights and interests rather than the legal rights and interests of third

parties. Harris v. Evans, 20 F.3d 1118, 1121 (11th Cir.1994) (en banc). Mulhall

easily satisfies the second and third requirements. The only real dispute here is

16
whether Mulhall meets the “zone-of-interests” test, which limits judicial review to

claims of injury that are sufficiently related to the core concerns of a given statute.

The zone-of-interests test “does not require the plaintiff to show an

identifiable ‘legal interest’ that may entitle him to relief.” Church of Scientology

Flag Serv. Org., Inc. v. City of Clearwater, 2 F.3d 1514, 1526 (11th Cir. 1993)

(quoting Ass’n of Data Processing Serv. Orgs., Inc. v. Camp (“ADAPSO”), 397

U.S. 150, 153 (1970)). Rather, the plaintiff need only show “that the relationship

between [his] alleged interest and the purposes implicit in the substantive provision

[is] more than ‘marginal[],’” City of Clearwater, 2 F.3d at 1526 (quoting Clarke v.

Sec. Indus. Ass’n, 479 U.S. 388, 399 (1987)). See also ADAPSO, 397 U.S. at 153.

The relationship between Mulhall’s alleged interest and the purposes of §

302 is more than “marginal.” Section 302 is “a conflict-of-interest statute,” United

States v. Browne, 505 F.3d 1229, 1248 (11th Cir. 2007); it bans the exchange of

anything of value between a union and an employer, subject to a strictly limited set

of exceptions, see 29 U.S.C. § 186(a)-(c). Its purpose is to “protect employees in

dealings between the union and employer,” Jackson Purchase Rural Elec. Coop.

Ass’n v. Local Union 816, Int’l Bhd. of Elec. Workers, 646 F.2d 264, 267 (6th Cir.

1981), and specifically to protect them “from the collusion of union officials and

management,” Mosley v. Nat’l Maritime Union Pension and Welfare Plan, 438 F.

17
Supp. 413, 421 (E.D.N.Y. 1977). Indeed, the legislative history of § 302

demonstrates that the provision was intended to “prohibit[ ], among other things,

the buying and selling of labor peace,” see S. Rep. No. 98-225 (1984), reprinted in

1984 U.S.C.C.A.N. 3182, 3477, something that the MOA at issue here at least

arguably does, see Complaint ¶ 11; MOA ¶ 11. Mulhall’s complaint thus falls

within the zone of interests that § 302 was designed to protect.

In sum, Mulhall has adequately pleaded facts supporting Article III standing,

and his claim raises no prudential standing concerns.

III.

Unite next argues that Mulhall’s claim is not ripe, because his alleged injury

is contingent on the outcome of Mardi Gras’ own lawsuit against Unite to void the

MOA. Specifically, Unite suggests that Mardi Gras’ lawsuit, if successful, would

shield Mulhall from the agreement’s allegedly illegal effects, and from the

concomitant increase in the likelihood of unionization. We remain unpersuaded.

The ripeness doctrine is one of the several “strands of justiciability doctrine .

. . that go to the heart of the Article III case or controversy requirement.” Harrell,

608 F.3d at 1246 (quotation marks and citation omitted). While standing concerns

the identity of the plaintiff and asks whether he may appropriately bring suit,

ripeness concerns the timing of the suit. Id. at 1261. The function of the ripeness

18
doctrine is to “protect[] federal courts from engaging in speculation or wasting

their resources through the review of potential or abstract disputes.” Id. at 1257-58

(citation and quotation marks omitted). “To determine whether a claim is ripe, we

assess both the fitness of the issues for judicial decision and the hardship to the

parties of withholding judicial review.” Id. at 1258 (emphasis omitted). “The

fitness prong is typically concerned with questions of ‘finality, definiteness, and

the extent to which resolution of the challenge depends upon facts that may not yet

be sufficiently developed.’” Id. (citation and quotation marks omitted). “The

hardship prong asks about the costs to the complaining party of delaying review

until conditions for deciding the controversy are ideal.” Id.

Unite’s argument, which goes to the “fitness” prong of the ripeness inquiry,

has some appeal, for it is generally true that the existence of contingencies raises

fitness concerns that “militat[e] in favor of postpon[ing]” review. Id. at 1263

(quoting AT&T Corp. v. FCC, 349 F.3d 692, 700 (D.C. Cir. 2003)). Specifically,

if a plaintiff’s claimed injury depends on the resolution of other judicial

proceedings, there may well be fitness concerns that render the plaintiff’s claim

presumptively unripe. See, e.g., In re Lowenschuss, 170 F.3d 923, 932 (9th Cir.

1999) (holding that claim in bankruptcy dependent on judgment in parallel

proceedings in New Jersey was unripe, where Third Circuit had not yet ruled on an

19
appeal); Lincoln House, Inc. v. Dupre, 903 F.2d 845 (1st Cir. 1990).11

Yet, to determine whether a future contingency creates fitness (and

ultimately ripeness) concerns, a court must assess the likelihood that a contingent

event will deprive the plaintiff of an injury. See Pittman, 267 F.3d at 1278. In

other words, it is not merely the existence, but the “degree of contingency [that] is

an important barometer of ripeness.” Riva v. Massachusetts, 61 F.3d 1003, 1011

(1st Cir. 1995) (emphasis added). See also United Steelworkers of Am., Local

2116 v. Cyclops Corp., 860 F.2d 189, 194 (6th Cir. 1988) (“In undertaking a

ripeness analysis, we . . . . pay particular attention to the likelihood that the harm

alleged by plaintiffs will ever come to pass.”).

In this case, it is extremely unlikely that Mardi Gras’ parallel litigation, in its

present posture, will deprive Mulhall of an injury. As recounted above, the district

court granted Unite’s motion to compel arbitration of the dispute over the validity

of the MOA, and the arbitrator rendered a judgment in favor of Unite. Mardi Gras

moved to vacate the award, but the district court confirmed the award in all

11
The “fitness” issue raised by the existence of future contingencies, which goes to
ripeness, is related to but distinct from the “imminence” requirement of a cognizable injury-in-
fact, which goes to standing. The question, for purposes of standing, is how likely the
challenged conduct is to cause the plaintiff an injury. The question for ripeness purposes is
whether the defendant’s engagement in the challenged conduct is contingent on future events
whose non-occurrence might deprive the plaintiff of an injury-in-fact. See Bova v. City of
Medford, 564 F.3d 1093, 1096 (9th Cir. 2009) (noting that ripeness and standing are interrelated,
insofar as non-occurring future events will deprive the plaintiff of an injury-in-fact).

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respects but one. Thus, despite its long-standing unwillingness to comply with the

disputed provisions of the MOA, Mardi Gras is now under compulsion of the law

to do just that.

We can divine only one theoretical scenario in which Mulhall could be

deprived of an injury at this point, namely, if Mardi Gras appealed the district

court’s order confirming the arbitration award, obtained a stay of the district

court’s judgment pending appeal, and prevailed on appeal. But that scenario is a

decidedly remote possibility under the circumstances, because Mardi Gras is very

unlikely to succeed in an appeal of the judgment confirming the arbitration award.

The Federal Arbitration Act authorizes a federal court to vacate an arbitral award in

only four instances:

(1) where the award was procured by corruption, fraud, or undue
means;

(2) where there was evident partiality or corruption in the arbitrators,
or either of them;

(3) where the arbitrators were guilty of misconduct in refusing to
postpone the hearing, upon sufficient cause shown, or in refusing to
hear evidence pertinent and material to the controversy; or of any
other misbehavior by which the rights of any party have been
prejudiced; or

(4) where the arbitrators exceeded their powers, or so imperfectly
executed them that a mutual, final, and definite award upon the
subject matter submitted was not made.

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9 U.S.C. §§ 10(a); Frazier v. CitiFinancial Corp., LLC, 604 F.3d 1313, 1321, 1324

(11th Cir. 2010) (holding that statutory grounds for vacatur are exclusive). Aside

from its claim that the arbitrator exceeded his authority by extending the term of

the MOA for one year -- a claim upon which the district court granted relief --

Mardi Gras never argued that the arbitral award was subject to vacatur on any of

the enumerated statutory grounds.

Furthermore, although Mardi Gras might argue on appeal that the validity of

the MOA should not have been arbitrated in the first instance, Mardi Gras is very

unlikely to prevail on that claim, either. As the district court observed in granting

Unite’s motion to compel arbitration, federal law required arbitration of the subject

dispute, pursuant to the MOA’s arbitration clause, “unless it [could] be said with

positive assurance that the arbitration clause [was] not susceptible of an

interpretation that cover[ed] the asserted dispute,” with any doubts about

arbitrability resolved “in favor of coverage.” AT&T Techs. v. Commc’ns Workers

of Am., 475 U.S. 643, 650 (1986) (citations omitted). The clause at issue here

broadly covered “any disputes over the interpretation or application of” the MOA,

a phrase that seems at least arguably expansive enough to cover a dispute over

whether certain parts of the agreement were legal and could be applied at all.

It is also exceedingly unlikely that Mardi Gras could successfully obtain a

22
stay of the district court’s judgment confirming the arbitral award pending appeal.

To be sure, a stay is theoretically (and procedurally) possible: “[a]rbitration awards

are not self-enforcing, [but] . . . must be given force and effect by being converted

to judicial orders” on an appropriate motion to confirm or vacate, D.H. Blair & Co.

v. Gottdiener, 462 F.3d 95, 104 (2d Cir. 2006) (internal quotation marks omitted),

and a district court may enter a stay of any judgment pending an appeal, see Fed.

R. Civ. P. 62, including a judgment upon an order confirming or vacating an

arbitral award. Yet, in ruling on a requested stay, the district court first would have

to assess the appellant’s likelihood of success on appeal. See Venus Lines Agency

v. CVG Industria Venezolana de Aluminio, C.A., 210 F.3d 1309, 1313-14 (11th

Cir. 2000).12 As we see it, the likelihood that Mardi Gras will succeed in any

appeal is minimal due to the constraints of the arbitration system, and the

additional likelihood of a stay is correspondingly low.

In short, the contingency, if any, occasioned by Mardi Gras’ parallel

litigation to void the MOA is very remote. Thus, Mulhall’s claim raises no

substantial fitness concerns. And, “‘[w]here . . . there are no significant agency or

12
The likelihood of success is one factor a district court must consider when ruling on a
requested stay. The other factors are: whether, absent a stay, the movant will suffer irreparable
damage; whether the adverse party will suffer no substantial harm from issuance of a stay; and
whether the public interest will be served by issuing a stay. Venus Lines Agency v. CVG
Industria Venezolana de Aluminio, C.A., 210 F.3d 1309, 1313-14 (11th Cir. 2000).

23
judicial interests militating in favor of delay, [lack of] ‘hardship’ cannot tip the

balance against judicial review.’” Harrell, 608 F.3d at 1259 (quoting Consol. Rail

Corp. v. United States, 896 F.2d 574, 577 (D.C. Cir. 1990)). Accordingly,

Mulhall’s claim is ripe for review, too.

IV.

Beyond the issues of standing and ripeness, the parties have extensively

briefed the merits question of whether § 302 provides a claimant like Mulhall with

a private right of action, as well as the question of whether the organizing

assistance specified in the MOA actually violates § 302 of the LMRA. Neither

question, however, is properly before us on review of the district court’s order

dismissing this action for lack of subject-matter jurisdiction.

The existence of a private right of action is an issue “separate and distinct”

from the issue of standing, The Wilderness Society v. Kane County, Utah, 581

F.3d 1198, 1215 (10th Cir. 2009), and “is not jurisdictional,” Northwest Airlines,

Inc. v. County of Kent, Mich., 510 U.S. 355, 365 (1994). See also Air Courier

Conference of Am. v. Am. Postal Workers Union, AFL-CIO, 498 U.S. 517, 523,

n.3 (1991). Although the district court mentioned in passing that § 302 provides a

private right of action, Mulhall v. Unite HERE Local 355, et al., No. 08-61766-

PAS (S.D. Fla. April 22, 2009) (Order granting motion to dismiss, at 3), and

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although the Supreme Court has observed in dicta that § 302(e) “expressly

permit[s] suits for injunctions . . . to be brought in the federal courts by private

litigants,” Sinclair Ref. Co. v. Atkinson, 370 U.S. 195, 205 n.19 (1962), the issue is

simply not for us to decide in this appeal.

Similarly, the question of whether the disputed organizing assistance is a

“thing of value,” whose provision by Mardi Gras or acceptance by Unite would

violate § 302, is beyond the scope of this appeal. “[S]tanding in no way depends

on the merits of the plaintiff’s contention that particular conduct is illegal.” Warth,

422 U.S. at 500. The merits will be for the district court to decide on remand.

V.

In sum, we conclude that Mulhall has constitutional and prudential standing

to maintain his claim for injunctive relief under § 302 of the Labor Relations

Management Act, and that his claim is ripe for review. Accordingly, we reverse

the district court’s order and judgment of dismissal and remand the case for further

proceedings consistent with this opinion.

REVERSED AND REMANDED.

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