National Labor Relations Board v. State of Oregon

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

EUGENE DIVISION

NATIONAL LABOR RELATIONS Case No. 6:20-cv-00203-MK

BOARD,

OPINION AND

Plaintiff, ORDER

v.

STATE OF OREGON,

Defendant,

_________________________________________

KASUBHAI, United States Magistrate Judge:

The National Labor Relations Board (“NLRB”) brought this lawsuit seeking a

declaratory judgment against the State of Oregon (“Oregon”) alleging that Or. Rev. Stat.

(“ORS”) § 659.785 is preempted by the National Labor Relations Act (“NRLA”) in February

2020. See Compl., ECF No. 1. After holding oral argument on Oregon’s motion to dismiss, the

Court issued an Opinion and Order dismissing the Complaint without prejudice and gave NLRB

30 days to amend their complaint. ECF No. 26. After NLRB filed its Amended Complaint,

Oregon once again moved to dismiss. ECF Nos. 27, 30. The Court heard oral argument in July

2021. ECF No. 44. After a careful review of the parties’ submissions, for the reasons that follow,

Oregon’s motion to dismiss is GRANTED.1

1 Both parties consented to allow a Magistrate Judge to enter final orders and judgment in

accordance with Federal Rule of Civil Procedure 73 and 28 U.S.C. § 636(c). See ECF No. 22.

BACKGROUND

The parties are well familiar with the background of this case and the Court provides the

following brief summary to provide context. “ORS § 659.785 creates a private cause of action

for employees who are discharged or disciplined for refusing to attend a ‘mandatory meeting’ at

which an employer expresses its views about unionization.” Associated Oregon Indus. v.

Avakian, No. 09-cv-1494-MO, 2010 WL 1838661, at *1 (D. Or. May 6, 2010). The statute, in

relevant part, provides:

An employer . . . may not discharge, discipline or otherwise

penalize or threaten to discharge, discipline or otherwise penalize

or take any adverse employment action against an employee:

(a) Because the employee declines to attend or

participate in an employer-sponsored meeting or

communication with the employer . . . if the

primary purpose of the meeting or communication

is to communicate the opinion of the employer

about religious or political matters;

(b) As a means of requiring an employee to attend a

meeting or participate in communications described in

paragraph (a) . . . ; or

(c) Because the employee . . .makes a good faith report,

orally or in writing, of a violation or suspected violation

of this section.

ORS § 659.785(1).

ORS 659.780(5) defines “political matters” to include “the decision to join, not join,

support or not support any lawful political or constituent group,” and ORS § 659.780(1) defines

“constituent group” to include a labor organization. As used here, an “employer” includes a

“person engaged in business that has employees” and public bodies. ORS § 659.780(3).

Employers are required to “post a notice of employee rights under this section in a place

normally reserved for employment-related notices and in a place commonly frequented by

employees.” ORS § 659.785(3). The statute is privately enforceable and permits “[a]n aggrieved

employee” to “bring a civil action” in state court and allows for an award to a prevailing

employee of “all appropriate relief, including injunctive relief . . . treble damages, together with

reasonable attorney fees and costs.” ORS § 659.785(3).

Congress has charged NLRB with the administration of the NLRA, which “among other

things, [seeks] to eliminate obstructions to the flow of commerce ‘by encouraging the practice

and procedure of collective bargaining and by protecting the exercise by workers of full freedom

of association, self-organization, and designation of representatives of their own choosing.’”

NLRB v. Arizona, 2011 WL 4852312, at *2 (D. Ariz. Oct. 13, 2011) (quoting 29 U.S.C. § 151);

see also 29 U.S.C. § 153.

As noted, Oregon moved for, and the Court granted, a previous motion to dismiss holding

that NLRB lacked standing to maintain this lawsuit against Oregon. See Nat’l Lab. Rels. Bd. v.

Oregon, No. 6:20-cv-00203-MK, 2020 WL 5994997, at *4 (D. Or. Oct. 9, 2020) (“NLRB I”); see

also October 9, 2020 Op. & Order, ECF No. 26. However, the Court dismissed the Complaint

without prejudice and allowed NLRB leave to amend to cure, if possible, NLRB’s lack of

standing. Id. NLRB subsequently filed an Amended Complaint. See Am. Compl., ECF No. 27.

NLRB asserts that because “[t]he NLRA covers most private employers that are not

railroads or airlines,” according to NLRB, “many employers that are subject to the Oregon

statute are also covered by the NLRA.” NLRB’s Opp’n 6, ECF No. 34.

NLRB further asserts that it has expended “federal government resources addressing

complaints and questions” about the impact of ORS § 659.785. Id. at 10–11. In support for its

claim for standing, NLRB also refers to an Oregon employer who moved for a stay of a union

election, which the Board ultimately denied, where the employer argued ORS § 659.785

“interfered with the fairness of [its] election proceeding” as well as other Oregon employers who

have pending election petitions. Id.

STANDARD OF REVIEW

Federal courts are courts of limited jurisdiction. Gunn v. Minton, 568 U.S. 251, 256

(2013) (quotation marks omitted). As such, a court is to presume “that a cause lies outside this

limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting

jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations

omitted); see also Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009); Safe Air for

Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of “subject-

matter jurisdiction, because it involves a court’s power to hear a case, can never be forfeited or

waived.” United States v. Cotton, 535 U.S. 625, 630 (2002). An objection that a particular court

lacks subject matter jurisdiction may be raised by any party, or by the court on its own initiative,

at any time. Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006); Fed. R. Civ. P. 12(b)(1). Courts

must dismiss any case over which it lacks subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3);

see also Pistor v. Garcia, 791 F.3d 1104, 1111 (9th Cir. 2015) (noting that when a court lacks

subject-matter jurisdiction, meaning it lacks the statutory or constitutional power to adjudicate a

case, the court must dismiss the complaint, even sua sponte if necessary).

DISCUSSION

“Article III of the Constitution limits the ‘judicial power’ of the United States to the

resolution of ‘cases’ and ‘controversies.’” Valley Forge Christian Coll. v. Americans United for

Separation of Church & State, Inc., 454 U.S. 464, 471, (1982). In order to bring suit in federal

court, a “constitutional minimum” of standing must be met. Lujan v. Defs. of Wildlife, 504 U.S.

555, 560 (1992). That minimum requires three elements to be satisfied: (1) the plaintiff must

have suffered an “injury in fact”—i.e., an invasion of a legally protected interest that is concrete

and particularized, as well as actual or imminent as opposed to conjectural or hypothetical; (2)

there must be a causal connection between the injury and the offending conduct; and (3) it must

be “likely” that the injury will be redressed by a favorable decision from the court. Id. at 560–61

(citations omitted). A plaintiff bears the burden of proving all three elements. Id. at 561.

NLRB’s argument that it is uniquely harmed as an agency of the federal government by

the enactment of ORS § 659.785 is a rehashing of the same argument this Court rejected in

NLRB I. Compare NLRB’s Opp’n 18 (asserting purported conflicts between ORS § 659.785 and

federal law “frustrates [ ] NLRB’s administration of national labor policy”), and id. at 19

(arguing “NLRB derives standing from its interest in preventing frustration of uniform

application of the NLRA’s substantive rules resulting from local procedures and attitudes toward

labor controversies”), ECF No. 34, with NLRB I, 2020 WL 5994997, at *3 (rejecting NLRB’s

contention that “it satisfie[d] the injury-in-fact prong of the standing analysis because ORS §

659.785 conflicts with the NLRA by regulating captive audience speeches and therefore

disrupt[ed] the ground rules for labor elections.”). And none of the additional authorities on

which NLRB now relies persuade this Court to depart from its original conclusion that NLRB’s

purported injury to its jurisdiction is not sufficient to establish a concrete injury.2 This Court will

not conclude without further evidence that answering inquiries that are clearly within the scope

of NLRB’s service functions should be deemed an injury sufficient to establish standing.

2 For the reasons explained in NLRB I, the Court finds NLRB v. North Dakota, 504 F. Supp. 2d

750, 752 (D.N.D. 2007) and Arizona, 2011 WL 4852312, at *1 (D. Ariz. Oct. 13, 2011)

distinguishable. 2020 WL 5994997, at *3 n.2.

As this Court explained nearly a year ago, “[a]n ‘[a]bstract injury is not enough’ to allege

a future injury; a plaintiff must show it ‘has sustained or is immediately in danger of sustaining

some direct injury as the result of the challenged official conduct and the injury or threat of

injury must be both real and immediate, not conjectural or hypothetical.’” NLRB I, 2020 WL

5994997, at *3 (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 101–02 (1983) (internal

quotation marks and citations omitted)). “[T]he ‘injury in fact’ test requires more than an injury

to a cognizable interest. It requires that the party seeking review be himself among the injured.”

Lujan, 504 U.S. at 563; cf. Stoianoff v. Montana, 695 F.2d 1214, 1223 (9th Cir. 1983) (“The

mere existence of a statute, which may or may not ever be applied to plaintiffs, is not sufficient

to create a case or controversy within the meaning of Article III.”).3

Next, NLRB asserts that it has expended resources answering questions about the Oregon

law, which has harmed its efficiency, and therefore has suffered an injury. NLRB’s Opp’n 20–

21, ECF No. 34. Although NLRB characterizes this as a “disruption of NLRB proceedings,” it

fails to identify any controlling authority that found similar administrative inquiries to a

government agency were sufficient to establish a harm for purposes of standing. Id.

Further, a review of the single case cited by NLRB does not support its novel theory.

Council of Ins. Agents & Brokers v. Molasky-Arman involved an out-of-state insurance agent’s

challenge to a Nevada law brought under the Privilege and Immunities Clause of Article IV and

the Fourteenth Amendment’s Equal Protection Clause. 522 F.3d 925, 931 (9th Cir. 2008).

3 NLRB’s references to the purported plight of Oregon employers fails for the same reason. NLRB

I, 2020 WL 5994997, at *3 (D. Or. Oct. 9, 2020) (“Although the NLRB asserts an alleged injury

to its jurisdiction, the concrete harm it identifies is to third parties not before this Court. . . . Such

future potential liability for NLRA-covered Oregon employers, however, is too speculative to

confer Article III standing on the NLRB.”) (citing Lujan, 504 U.S. at 560 (requiring “an invasion

of a legally protected interest which is [ ] concrete and particularized”)).

Although the Ninth Circuit noted that the harms at issue there—discriminatory burdens based on

nonresident status—amounted “to more than an identifiable trifle,” they are of an entirely

different nature than the purported “disruption” NLRB has alleged here. Id. at 931–32.

Accordingly, the purported injury to NLRB’s efficiency is not sufficient to establish a concrete

and particularized harm for purposes of standing. See Lujan, 504 U.S. at 560 (requiring “an

invasion of a legally protected interest which is [ ] concrete and particularized”); Cf. Virginia

House of Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1955 (2019) (finding no standing despite

allegations of “profound[] disrupt[ion] its day-to-day operations”); Raines v. Byrd, 521 U.S. 811,

829 (1997) (finding no standing where “the institutional injury they alleg[d was] wholly abstract

and widely dispersed”).

NLRB’s argument that it has sufficiently alleged a causal connection between Oregon’s

enactment of ORS § 659.785 and its alleged injury also fails. NLRB’s Opp’n 21–24. NLRB

asserts that Oregon’s enactment of the statute caused it to suffer “an invasion of its legally

protected interest” Id. at 21. That legally protected interest, NLRB maintains, is an encroachment

of “NLRB’s authority to regulate coercive employer speech about unions, including during a[n]

election campaign.” Id. at 22. For the reasons discussed above, however, the Court has already

rejected NLRB’s argument that a purported injury to its jurisdiction is sufficient to confer Article

III standing. Finally, despite NLRB’s contention to the contrary, “because the statute is privately

enforceable, NLRB cannot demonstrate that any state action caused any alleged injury.” NLRB I,

2020 WL 5994997, at *3; see also Associated Oregon Indus. v. Avakian, 2010 WL 1838661, at

*3 (D. Or. May 6, 2010) (“Similarly, plaintiffs lack standing because they cannot show their

injuries are, or ever will be, fairly traceable to the Commissioner.”); Lujan, 504 U.S. at 560–61

(requiring “a connection between the injury and the conduct complained of”).4

In sum, NLRB has failed to meet its burden to establish it has standing to pursue this

lawsuit. Accordingly, this Court lacks subject matter jurisdiction.

ORDER

For the reasons above, Oregon’s motion to dismiss (ECF No. 30) is GRANTED. This

case is DISMISSED with prejudice.

IT IS SO ORDERED.

DATED this 27th day of September 2021.

s/ Mustafa T. Kasubhai

MUSTAFA T. KASUBHAI (He / Him)

United States Magistrate Judge

4 Because the Court concludes that NLRB has not established standing for purposes of the injury-

in-fact and causation prongs, it declines to reach the issue of redressability.