Pacific Maritime Ass'n v. National Labor Relations Board

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PACIFIC MARITIME ASSOCIATION, No. 13-35818

Plaintiff-Appellee,

D.C. No.

v. 3:12-cv-02179-MO

NATIONAL LABOR RELATIONS

BOARD, OPINION

Defendant-Appellant.

Appeal from the United States District Court

for the District of Oregon

Michael W. Mosman, Chief District Judge, Presiding

Argued and Submitted March 8, 2016

Portland, Oregon

Filed July 8, 2016

Before: Raymond C. Fisher, Marsha S. Berzon,

and Paul J. Watford, Circuit Judges.

Opinion by Judge Berzon

2 PACIFIC MARITIME ASS’N V. NLRB

SUMMARY*

Labor Law

Reversing the district court’s summary judgment in favor

of the Pacific Maritime Association, the panel held that the

district court lacked subject matter jurisdiction to vacate an

interlocutory decision of the National Labor Relations Board

issued under § 10(k) of the National Labor Relations Act,

which directs the Board to hear and determine disputes

concerning unfair labor practice charges.

An employer filed an unfair labor practice charge against

a union, and the Board issued a Notice of Hearing under

§ 10(k). The Board denied a motion to intervene and a

motion to quash the Notice of Hearing by the Pacific

Maritime Association, a multi-employer association that

bargained with the union, and concluded that it had

jurisdiction to resolve the unfair labor practice charge.

The Pacific Maritime Association filed an action in

district court seeking immediate judicial review of the

Board’s § 10(k) decision.

The panel held that the Leedom v. Kyne, 358 U.S. 184

(1958), exception to the finality requirement for district court

jurisdiction did not apply. This exception requires a plaintiff

to show both that the Board’s action was ultra vires and that

absent district court jurisdiction, the party seeking review will

be wholly deprived of a meaningful and adequate means of

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

PACIFIC MARITIME ASS’N V. NLRB 3

vindicating its statutory rights. The panel stated that it was

skeptical that the Board’s exercise of jurisdiction was proper.

Nonetheless, whether or not the Board’s decision was ultra

vires, the district court lacked jurisdiction because the Pacific

Maritime Association had alternative means of challenging

the Board’s § 10(k) decision. The panel concluded that the

Association could seek to intervene in an ongoing unfair

labor practice case that arose out of the Board’s decision, or

it could simply await the Board’s final order in that case and

then seek judicial review under NLRA § 10(f) as an

“aggrieved person.”

The panel rejected Pacific Maritime Association’s

argument that it should affirm on the basis of NLRB v. Noel

Canning, 134 S. Ct. 2550 (2014), which invalidated Board

appointments and meant that the Board was acting without a

quorum.

COUNSEL

David Hitoshi Mori (argued) and Denis F. Meiners,

Attorneys; Kevin P. Flanagan, Supervisory Attorney; Nancy

E. Kessler Platt, Deputy Assistant General Counsel; Abby

Propis Simms, Assistant General Counsel; Eric G.

Moskowitz, Acting Assistant General Counsel; Margery E.

Lieber, Associate General Counsel; Jennifer Abruzzo, Deputy

General Counsel; Richard F. Griffin, Jr., General Counsel;

National Labor Relations Board, Washington, D.C.; for

Defendant-Appellant.

Charles I. Cohen (argued), Jonathan C. Fritts, and David R.

Broderdorf, Morgan, Lewis & Bockius LLP, Washington,

4 PACIFIC MARITIME ASS’N V. NLRB

D.C.; Clifford D. Sethness, Los Angeles, California; for

Plaintiff-Appellee.

Michael T. Garone, Schwabe, Williamson & Wyatt, P.C.,

Portland, Oregon, for Amicus Curiae ICTSI Oregon, Inc.

OPINION

BERZON, Circuit Judge:

The National Labor Relations Board (“NLRB” or “the

Board”) challenges the district court’s ruling that it had

subject matter jurisdiction to vacate an interlocutory decision

of the Board issued under § 10(k) of the National Labor

Relations Act (“the Act”). The district court held that

jurisdiction was warranted under the rule of Leedom v. Kyne,

358 U.S. 184 (1958). We conclude that the district court had

no jurisdiction over Pacific Maritime Association’s (“PMA”)

effort to obtain review of a non-final NLRB ruling, as the

Leedom exception to the finality requirement does not apply.

We accordingly reverse.

I.

This case arises out of a longstanding jurisdictional

dispute between two unions representing workers at Terminal

6 at the Port of Portland. Some of the work at the Terminal

involves loading and unloading refrigerated shipping

containers known as “reefers,” which are used to ship food

and other perishables. Reefers must be plugged in to

electrical outlets to maintain proper refrigeration and must be

monitored to ensure they are at the correct temperature.

Since 1974, the Port, a public entity, has employed members

PACIFIC MARITIME ASS’N V. NLRB 5

of the International Brotherhood of Electrical Workers Local

48 (“IBEW”) to perform the so-called “reefer work” of

plugging in, unplugging, and monitoring the reefers. The

IBEW’s work at the Port is governed by a collective

bargaining agreement between the Port and the District

Council of Trade Unions (“District Council”), of which the

IBEW is a member.

A different union, the International Longshore and

Warehouse Union, Local 8, AFL-CIO (“ILWU”), represents

other workers at the terminal. During the mid-2000s, the

ILWU began to assert that ILWU-represented workers should

perform the reefer work. In 2008 the ILWU filed a series of

grievances on this point against the company then operating

the Terminal.

In 2011, ICTSI Oregon, Inc. (“ICTSI”) entered into a 25-

year lease with the Port to take over cargo handling

operations at Terminal 6. During the lease negotiations, the

Port insisted that work that had long been performed by Port

employees under the District Council agreement — including

the reefer work at issue — continue to be the Port’s

responsibility. Accordingly, ICTSI’s lease with the Port

states that ICTSI acknowledges “that the [District Council]

Work is subject to the [District Council]’s jurisdiction under

the [District Council] Agreement” and that ICTSI cannot

perform “at the Terminal any [District Council] Work.”

Elsewhere, the lease provides that as long as the District

Council agreement is in effect, work covered by that

agreement must be performed by District Council employees.

After executing the lease, ICTSI joined the PMA, a multi-

employer association that bargains with the ILWU. As a

member of the PMA, ICTSI became bound to a multi-

6 PACIFIC MARITIME ASS’N V. NLRB

employer collective bargaining agreement known as the

Pacific Coast Longshore Contract Document (“Longshore

Contract”). Under the terms of the Longshore Contract,

reefer work is to be performed by ILWU employees. The

ILWU accordingly demanded that ICTSI assign the reefer

work to ILWU employees. ICTSI responded that under the

terms of its lease, it had no authority to assign or control the

reefer work. The ILWU proceeded to file a series of

grievances against ICTSI and several PMA-member carriers

that call on the Port, alleging that they were in violation of the

Longshore Contract by allowing IBEW-represented

employees to perform the reefer work. When the IBEW

learned of these grievances, it threatened to picket ICTSI if

the reefer work was assigned to ILWU employees.

On May 10, 2012, ICTSI filed an unfair labor practice

charge against the IBEW with the Board. The charge claimed

a violation of § 8(b)(4)(D)1 of the National Labor Relations

Act (“the Act”), which prohibits unions from “threaten[ing],

coerc[ing], or restrain[ing]” any person with the object of

“forcing or requiring any employer to assign particular work

to employees in a particular labor organization . . . rather than

to employees in another labor organization . . . .” 29 U.S.C.

§ 158(b)(4)(ii)(D).

Under § 10(k) of the Act, whenever an unfair labor

practice is charged under § 8(b)(4)(D), the Board is directed

“to hear and determine the dispute out of which such unfair

labor practice shall have arisen.” 29 U.S.C. § 160(k). On

May 17, 2012, the Board’s Region 19 Regional Director

issued a Notice of Hearing under § 10(k). On the first day of

1

For ease of reference, we refer to both §§ 8(b)(4)(i)(B) and (D) and

§§ 8(b)(4)(ii)(B) and (D) of the Act as §§ 8(b)(4)(B) and (D), respectively.

PACIFIC MARITIME ASS’N V. NLRB 7

the hearing, PMA moved to intervene and to quash the Notice

of Hearing, but the Regional Director denied the motion,

concluding that PMA’s interests would be adequately

represented by the ILWU. On June 12, 2012, PMA filed a

request for special permission from the Board to appeal the

denial of its motion to intervene and motion to quash. PMA

argued that because the Port, which employs the IBEW

workers, is a governmental agency, the IBEW workers are

not “employees” within the meaning of the Act; as a result,

PMA claimed, there was no violation of § 8(b)(4)(D), which

requires a dispute between two groups of statutory

“employees,” and thus no jurisdiction for the Board to resolve

the dispute under § 10(k).

On August 13, 2012, the Board issued a decision

awarding the reefer work to the IBEW. Before reaching the

merits of the jurisdictional dispute, the Board rejected the

ILWU’s argument that there was “no violation of Section

8(b)(4)(D) because the dispute concerns the assignment of

work by public employer Port to its own employees, who are

excluded from coverage by the Act.” Citing prior decisions,

the Board concluded that, for § 8(b)(4)(D) to be applicable,

it need have jurisdiction “only over the employer that is the

target of a respondent union’s unlawful conduct” — here,

ICTSI. In a footnote, the Board also denied PMA’s request

to appeal the denial of its motion to intervene on the grounds

that “PMA has made the same claims as ILWU in arguing

that the Board should quash the notice of hearing.” PMA

subsequently filed a motion for reconsideration of the Board’s

decision, in which it reiterated its statutory argument. The

Board denied this motion.

Before the Board’s decision, ICTSI had filed unfair labor

practice charges against the ILWU, alleging that it had taken

8 PACIFIC MARITIME ASS’N V. NLRB

actions designed to coerce ICTSI into assigning the reefer

work to its employees in violation of §§ 8(b)(4)(B) and (D).

On August 17, 2012, ICTSI filed additional unfair labor

practice charges, alleging that this conduct had continued

after and in violation of the Board’s § 10(k) decision

awarding the work to the IBEW. The Regional Director

issued an administrative complaint against the ILWU, and

hearings were held in July and August, 2012. PMA did not

attempt to intervene in the unfair labor practice proceedings.2

On September 7, 2012, PMA filed an action in the District

of Oregon seeking immediate judicial review of the Board’s

§ 10(k) decision. PMA argued that the district court had

jurisdiction to hear its challenge under Leedom, 358 U.S. 184,

“because the Board’s action is beyond the authority granted

to the Board in the NLRA” and “[w]ithout this Court’s

jurisdiction, PMA would be wholly deprived of any means

within its control to remedy the Board’s ultra vires action.”

The Board moved to dismiss for lack of jurisdiction.

On June 4, 2013, the district court held a hearing and

issued an oral ruling denying the Board’s motion to dismiss

and granting summary judgment to PMA. Because the

district court thought it clear that the Board’s decision

exceeded its statutory authority, the hearing focused on the

second prong of the Leedom test — whether there was an

alternative means for PMA to vindicate its statutory rights.

2

While the administrative proceeding was underway, the Regional

Director sought injunctive relief against the ILWU in the District of

Oregon under § 10(l) of the Act. The district court granted an injunction.

On appeal, we vacated a portion of the injunction in light of the district

court order, at issue in this case, vacating the § 10(k) award. See Hooks

ex rel. NLRB v. Int'l Longshore & Warehouse Union, 544 F. App’x 657,

659–60 (9th Cir. 2013).

PACIFIC MARITIME ASS’N V. NLRB 9

The district court first rejected the Board’s argument that

PMA must first seek to intervene in the pending unfair labor

practice case, concluding that “if it tried to do so, it would get

the same answer that it has gotten already” since there was

“no reason to believe . . . that the test [for intervention] is

somehow more favorable this time around to PMA than it has

been in the past.” The court then explained that the question

whether PMA had an alternative avenue to seek review of its

claims turned on whether the Board would issue a “final

order” in the pending unfair labor practice case that would

allow PMA to seek judicial review as a “person aggrieved”

under § 10(f) of the Act, 29 U.S.C. § 160(f). Opining that an

event that would precipitate a “final order” was “not within

PMA’s control,” the court held jurisdiction under Leedom

warranted. The court then granted summary judgment to

PMA, vacating the Board’s § 10(k) decision. This appeal

followed.

The lengthy saga of the underlying dispute continued. On

August 28, 2013, the Administrative Law Judge (“ALJ”)

issued a decision in the ongoing unfair labor practice case

against the ILWU. Despite the district court’s order, the ALJ

concluded that in the absence of a subsequent Board order, he

was obligated to follow the Board’s § 10(k) decision. He

accordingly concluded that the ILWU had violated

§§ 8(b)(4)(B) and (D). On February 20, 2014, the Board

issued an order “to sever, hold in abeyance, and postpone

briefing on the Sec. 8(b)(4)(D) allegations,” which are

dependent upon the § 10(k) decision, pending this appeal.3

3

Later, the Board affirmed the ALJ’s finding that the ILWU had

violated § 8(b)(4)(B). Int’l Longshore & Warehouse Union, AFL-CIO,

363 NLRB No. 12 (2015). An appeal from that decision is now pending

10 PACIFIC MARITIME ASS’N V. NLRB

Int’l Longshore & Warehouse Union, AFL-CIO, 363 NLRB

No. 12 (2015).

II.

The sole issue on appeal is whether the district court had

subject matter jurisdiction to issue its order vacating the

Board’s § 10(k) decision.

Section 10(f) of the Act provides that “[a]ny person

aggrieved by a final order of the Board granting or denying

in whole or in part the relief sought may obtain a review of

such order” in an appropriate circuit court, or in the D.C.

Circuit. 29 U.S.C. § 160(f). A Board decision resolving a

jurisdictional dispute under § 10(k) is not a “final order”

permitting review under § 10(f). See Henderson ex rel. NLRB

v. Int’l Longshoremen’s & Warehousemen’s Union Local 50,

457 F.2d 572, 577 (9th Cir. 1972) (explaining that “the

section 10(k) award is an interlocutory order reviewable only

in the course of review of any subsequent final order under

section 8(b)(4)(D)”). Ordinarily, the § 10(f) procedure is the

only avenue by which a party may seek judicial review of

Board decisions; the courts are otherwise without subject

matter jurisdiction. See Am. Fed’n of Labor v. NLRB,

308 U.S. 401, 404 (1940); Myers v. Bethlehem Shipbuilding

Corp., 303 U.S. 41, 48 (1938). Ordinarily, then, Board

§ 10(k) determinations are not reviewable decisions.

In Leedom v. Kyne, however, the Supreme Court carved

out a narrow exception to the rule precluding jurisdiction over

Board decisions beyond that provided in § 10(f). In Leedom,

before the D.C. Circuit. See Intl. Longshore & Warehouse Union v.

NLRB, No. 15-1344 (D.C. Cir. filed October 1, 2015).

PACIFIC MARITIME ASS’N V. NLRB 11

the Board had directed an election in a mixed bargaining unit

of both professional and non-professional employees, despite

a provision in § 9(b)(1) dictating that it “shall not” do so

“unless a majority of such professional employees vote for

inclusion in such unit.” 29 U.S.C. § 159(b)(1); see Leedom,

358 U.S. at 185. In the ordinary case, a decision certifying a

bargaining unit, like a § 10(k) decision, is not a final order

that can be reviewed under § 10(f). Am. Fed’n of Labor,

308 U.S. at 409. The Union nonetheless filed suit in district

court, asking the court to set aside the Board’s decision.

The Supreme Court held that the district court had

jurisdiction. As it explained, two considerations supported its

holding. First, the “suit [was] not one to ‘review,’ in the

sense of that term as used in the Act, a decision of the Board

made within its jurisdiction. Rather, it [was] one to strike

down an order of the Board made in excess of its delegated

powers and contrary to a specific prohibition in the Act.”

Leedom, 358 U.S. at 188. Second, because, in the ordinary

case, only an employer can precipitate an unfair labor practice

charge, and thus ultimately a reviewable final order, by

refusing to bargain after an election, the aggrieved employees

in this case had “no other means, within their control . . . to

protect and enforce” their statutory rights. Id. at 190. In

other words, “absence of jurisdiction of the federal courts

would mean a sacrifice or obliteration of a right which

Congress has given professional employees.” Id. (internal

quotation marks omitted).

The exercise of jurisdiction under Leedom thus requires

a plaintiff to make a two-part showing. Nat’l Air Traffic

Controllers Ass’n AFL-CIO v. Fed. Serv. Impasses Panel,

437 F.3d 1256, 1263 (D.C. Cir. 2006). First, the challenged

Board action must be ultra vires, i.e., it must contravene

12 PACIFIC MARITIME ASS’N V. NLRB

“clear and mandatory” statutory language. Leedom, 358 U.S.

at 188. And second, absent district court jurisdiction, the

party seeking review must be “wholly deprive[d] . . . of a

meaningful and adequate means of vindicating its statutory

rights.” Bd. of Governors of Fed. Reserve Sys. v. MCorp

Fin., Inc., 502 U.S. 32, 43 (1991).

As we will explain below, we conclude that the district

court erred in applying Leedom’s second prong because PMA

had alternative means available to seek review of the Board’s

§ 10(k) decision. Accordingly, while we are skeptical, for the

reasons that follow, that the Board’s exercise of jurisdiction

was proper, we need not and do not resolve the question.

A. The Board’s Statutory Authority Under § 10(k).

Under § 10(k), the Board is “empowered and directed” to

resolve jurisdictional disputes “[w]henever it is charged that

any person has engaged in an unfair labor practice within the

meaning of” § 8(b)(4)(D). 29 U.S.C. § 160(k). Section

8(b)(4)(D), in turn, makes it an unfair labor practice to

threaten or coerce any person with the object of “forcing or

requiring any employer to assign particular work to

employees in a particular labor organization . . . rather than to

employees in another labor organization.” 29 U.S.C.

§ 158(b)(4)(D).

“Employee” has a specific definition in the Act. Section

2.3 provides in part that “[t]he term ‘employee’ shall include

any employee . . . but shall not include . . . any individual

employed by . . . any other person who is not an employer as

herein defined.” 29 U.S.C. § 152(3). The statute’s definition

of “employer,” in turn, provides in part that the term “shall

not include . . . any State or political subdivision thereof.”

PACIFIC MARITIME ASS’N V. NLRB 13

29 U.S.C. § 152(2). Employees of public entities are thus not

“employees” within the meaning of the Act. The parties in

this case agree that the Port of Portland is a public entity.

Section 8(b)(4)(D) defines an unfair labor practice only

when a union acts with the purpose of forcing “any

employer” to assign work to one group of “employees” rather

than another group of “employees.” Because employees of

state agencies are not employed by statutory “employers” —

and thus are not “employees” within the meaning of the Act

— § 8(b)(4)(D), on its face, does not apply to conduct arising

in the context of a jurisdictional dispute involving state

employees. And because § 8(b)(4)(D) defines and limits the

Board’s authority to make jurisdictional rulings under

§ 10(k), it would appear that the Board cannot resolve

jurisdictional disputes where one of the disputants is a group

of state employees.

The Board asserts that, notwithstanding the apparent

reach of the statute, its exercise of jurisdiction was proper.

Each of its arguments has flaws.

First, the Board argues that its § 10(k) decision was

proper because § 10(k) does not require an “actual finding of

the elements of a Section 8(b)(4)(D) violation.” Instead, “the

Board’s power under § 10(k) depend[s] upon whether there

is reasonable cause to believe that § 8(b)(4)(D) has been

violated.” Int’l Tel. & Tel. Corp., Commc’ns Equip. & Sys.

Div. v. Local 134, Int’l Bhd. of Elec. Workers (ITT), 419 U.S.

428, 445 n.16 (1975). We are skeptical that the Board can

have “reasonable cause to believe” a violation has taken place

where one of the groups involved in the jurisdictional dispute

seemingly falls outside the coverage of the Act.

14 PACIFIC MARITIME ASS’N V. NLRB

Second, the Board argues that it has “broad discretion in

defining what constitutes a jurisdictional dispute warranting

resolution under Section 10(k),” and that its determinations

are entitled to Chevron deference. See Chevron, U.S.A., Inc.

v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). But in

reviewing agency statutory interpretations, “[f]irst, always, is

the question whether Congress has directly spoken to the

precise question at issue. If the intent of Congress is clear,

that is the end of the matter; for the court, as well as the

agency, must give effect to the unambiguously expressed

intent of Congress.” Id. at 842–43; see also United Food &

Commercial Workers Union, Local 1036 v. NLRB, 307 F.3d

760, 766 (9th Cir. 2002). So if, the statutory definition of

“employee” represents the “unambiguously expressed intent

of Congress,” the Board’s contrary reading would be entitled

to no deference.

Third, the Board asserts that it acted within its discretion

in asserting jurisdiction on the basis of the precedent-based

argument that it made in the § 10(k) decision itself. There,

the Board relied on prior decisions holding that to find a

§ 8(b)(4)(D) violation, “the Board need have jurisdiction only

over the employer that is the target of a respondent union’s

unlawful conduct.” In both the cases the Board relies on, the

jurisdictional dispute was, in fact, between two groups of

covered employees. See United Ass’n of Journeymen &

Apprentices of the Plumbing & Pipe Fitting Indus., Local

195, 275 NLRB 484 (1985); Int’l Longshoremen’s Ass’n,

Local 1911, 236 NLRB 1439 (1978).

In light of the foregoing, it appears likely that the Board’s

§ 10(k) decision violated the “clear and mandatory” language

of the Act. Leedom, 358 U.S. at 188. Nonetheless, because

we conclude that the district court’s exercise of jurisdiction

PACIFIC MARITIME ASS’N V. NLRB 15

was improper under Leedom’s second prong, we leave it to

the Board to render a final decision on its own jurisdiction in

the first instance.

B. The Availability of Alternative Paths to Secure

Judicial Review

Whether or not the Board’s decision was ultra vires, the

district court’s exercise of jurisdiction under Leedom was

improper if PMA had some alternative means to challenge the

Board’s § 10(k) decision. See MCorp, 502 U.S. at 44. The

Board argues that PMA has two such means: it could seek to

intervene in the ongoing unfair labor practice case that arose

out of the Board’s decision, or it could simply await the

Board’s final order in that case, and then seek judicial review

under § 10(f) as an “aggrieved person.” We agree.

With respect to intervention, the district court reasoned

that because PMA had already unsuccessfully attempted to

intervene in the § 10(k) proceedings, “if it tried to do so [in

the unfair labor practice case], it would get the same answer

that it has gotten already.” The court’s conclusion was based

on its understanding of the standards for intervention in a

Board case. Because the court found that there was “no

reason to believe . . . that the test [for intervention] is

somehow more favorable this time around to PMA than it has

been in the past,” it concluded that a renewed request for

intervention would be futile.

The district court’s focus on a supposed “test” for

intervention was misdirected. Under both the Act and the

Board’s regulations, the Board and its ALJs are afforded

broad discretion in determining requests to intervene. See

29 U.S.C. § 160(b) (“In the discretion of the member, agent,

16 PACIFIC MARITIME ASS’N V. NLRB

or agency conducting the hearing or the Board, any other

person may be allowed to intervene in the said proceeding

and to present testimony.”); 29 C.F.R. § 102.29 (“The

regional director or the administrative law judge, as the case

may be, may by order permit intervention in person or by

counsel or other representative to such extent and upon such

terms as he may deem proper.”). Contrary to the district

court’s assumption, therefore, there is no rigid standard for

intervention such that PMA, having once failed to surmount

it, would necessarily fall short in a subsequent proceeding.

Moreover, there are significant differences between the

§ 10(k) proceeding in which the Board denied intervention

and the ongoing unfair labor practice proceeding. A § 10(k)

proceeding has “[s]treamlined procedures” because it results

only in “a preliminary administrative determination made for

the purpose of attempting to resolve a dispute.” ITT,

419 U.S. at 440. An unfair labor practice proceeding, by

contrast, is a full, adversarial adjudication of whether one

party has violated the Act. The Board could thus decide, in

its discretion, that intervention is appropriate in the full unfair

labor practice proceeding despite having denied intervention

in the truncated § 10(k) proceeding. Significantly, the Board

has stated (and it informed the district court) that its General

Counsel would not oppose an intervention request by PMA in

the unfair labor practice case.

Nor would the Board’s previous rejection of PMA’s

statutory argument prevent PMA from renewing that

argument upon intervention. “The findings and conclusions

in a § 10(k) proceeding are not res judicata on the unfair

labor practice issue in the later § 8(b)(4)(D) determination.”

ITT, 419 U.S. at 446 (quoting NLRB v. Plasterers’ Local

Union No. 79, Operative Plasterers’ & Cement Masons’ Int’l

PACIFIC MARITIME ASS’N V. NLRB 17

Ass’n, 404 U.S. 116, 122 n.10 (1971)); see also Warehouse

Union Local 6, ILWU, 289 NLRB 1, 2 (1988) (overruling

“prior Board cases to the extent they suggest that a

respondent in an 8(b)(4)(D) proceeding is not entitled to

relitigate factual issues concerning the elements of the

8(b)(4)(D) violation that were raised in an underlying 10(k)

proceeding unless it presents new or previously unavailable

evidence”). The Board is thus free to revisit in a § 8(b)(4)(D)

proceeding issues on which it had previously ruled in a

§ 10(k) decision. Indeed, reconsideration of § 10(k) rulings

appears implicitly to be contemplated by the statutory

scheme, given that a § 8(b)(4)(D) proceeding involves a full

adversarial adjudication, in contrast with the informal

proceedings required under § 10(k).

We therefore conclude that intervention in the unfair labor

practice proceeding presented PMA with a viable alternative

path to seeking review of the Board’s § 10(k) decision. A

requirement that PMA attempt to intervene in the unfair labor

practice case before seeking Leedom jurisdiction is consistent

with the doctrine of administrative exhaustion, which, as we

have previously noted, “serves two vital purposes: first, to

give the agency an initial opportunity to correct its mistakes

before courts intervene; and second, to enable the creation of

a complete administrative record should judicial review

become necessary.” AMERCO v. NLRB, 458 F.3d 883, 888

(9th Cir. 2006). The district court’s decision to assert

jurisdiction in this case deprived the agency of an

“opportunity to correct its mistakes,” although a clear path

existed for the agency to do so.

We further agree with the Board that even without

intervention, the pending unfair labor practice case gives

PMA a “meaningful and adequate” means to seek judicial

18 PACIFIC MARITIME ASS’N V. NLRB

review. Section 10(f) provides that any “person aggrieved”

— not “party aggrieved” — by a final order of the Board may

seek judicial review. While, in the typical case, a “person

aggrieved” usually will have been a party to the Board

proceeding, party status is not necessary. Courts have

recognized entities as ‘aggrieved persons’ even though they

were not parties in the underlying administrative proceedings.

See, e.g., Brentwood at Hobart v. NLRB, 675 F.3d 999, 1005

(6th Cir. 2012). PMA argues that such cases have been

infrequent, but it does not dispute that the Act nowhere

requires an aggrieved person to have been a party to the

underlying proceeding. The Board thus argues that PMA has

as much opportunity to seek judicial review as the ILWU,

which is the subject of the Board’s § 8(b)(4)(D) proceeding.

It can simply wait for the Board to issue its final order in that

case, and then seek review under § 10(f), as provided in the

statute.

PMA argues that this route is not sufficient. In Leedom,

the Court emphasized that the employees seeking review had

no adequate means “within their control” to seek judicial

review. 358 U.S. at 190. In this case, PMA argues, its ability

to seek review under § 10(f) depends on a contingency that it

cannot control, as it can seek review only if the Board issues

a final decision finding a violation of § 8(b)(4)(D). It is not

certain that the Board would do so, PMA maintains, because

the unfair labor practice proceedings could terminate in a

settlement (which PMA would have no ability to control),

relieving the Board of the necessity of issuing a final order.

In such a case, PMA would not be able to seek review under

§ 10(f). Thus, PMA argues its position is equivalent to that

of the union in Leedom.

PACIFIC MARITIME ASS’N V. NLRB 19

Not so. As discussed above, Leedom involved a challenge

to a Board decision certifying a bargaining unit before an

election. Like a § 10(k) decision, a certification decision is

not a “final order”; it is typically only subject to judicial

review to the extent “it may be drawn in question by a

petition for enforcement or review of an order, made under

§ 10(c) of the Act, restraining an unfair labor practice.”

358 U.S. at 187. But as the court below had explained,

“review by way of § 10 is too remote and conjectural to be

viewed as providing an adequate remedy.” Leedom v. Kyne,

249 F.2d 490, 492 (D.C. Cir. 1957). This remoteness resulted

from the circumstance that the union had no way to

precipitate an unfair labor practice case that would present the

issue and ultimately result in a final order; if the union

refused to bargain with the employer, the employer likely

would not seek review “since he would then be free to deal

with all employees individually.” Id. The problem in

Leedom, then, was that there was no way for the union to

initiate the unfair labor practice case necessary to produce a

final order of the Board.

By contrast, in this case, an unfair labor practice

proceeding relying on the § 10(k) decision is already

underway. Absent settlement, there will be a final order. Put

another way, in Leedom, absent district court jurisdiction, the

union could only seek review in the extremely unlikely event

that the employer filed unfair labor practice charges upon the

union’s refusal to bargain. Under the status quo, there would

be no avenue for review. By contrast, in this case PMA will

only be denied the opportunity to seek review if an unlikely

event, i.e. a settlement, prevents the Board from issuing the

final order that would otherwise follow in due course.

20 PACIFIC MARITIME ASS’N V. NLRB

Furthermore, even if the unfair labor practice proceeding

did terminate in a settlement, nothing would prevent PMA

from then seeking a district court order under Leedom. As we

have previously explained, there is no basis for expanding the

narrow Leedom exception “from situations in which judicial

review is not available at all to situations in which judicial

review simply is not available yet.” AMERCO, 458 F.3d at

890.

Under the PMA’s approach, the exception would swallow

the rule. Any unfair labor practice case could, hypothetically,

end in a settlement without a final order. If this possibility

were enough to support Leedom jurisdiction, then any non-

party to an unfair labor practice proceeding could

immediately seek judicial review of a Board decision without

waiting for a final order.

In sum, PMA has adequate alternative means to seek

judicial review “within its control”: it may seek to intervene

in the § 8(b)(4)(D) proceeding, or it may file a petition for

review under § 10(f) at the conclusion of that proceeding. To

the extent that PMA lacks control over the issuance of a final

order because of the possibility of a settlement, nothing

would prevent it from filing a district court action after a

settlement is reached. We therefore conclude that the district

court erred in asserting jurisdiction under Leedom.

III.

PMA alternatively urges us to affirm on the basis of the

Supreme Court’s decision in NLRB v. Noel Canning, 134 S.

Ct. 2550 (2014). There, the Court invalidated three of

President Obama’s recess appointments to the Board,

meaning that the Board had been operating without a quorum

PACIFIC MARITIME ASS’N V. NLRB 21

of at least three validly appointed members between January

2012 and August 2013. All Board decisions made during this

period are thus invalid under New Process Steel, L.P. v.

NLRB, 560 U.S. 674 (2010), which held that the Board cannot

exercise its powers in the absence of a lawfully appointed

quorum. The Board’s § 10(k) decision in this case was made

during the period affected by Noel Canning.

PMA points to a line of cases beginning with Fay v.

Douds, 172 F.2d 720 (2d Cir. 1949), holding that district

courts have jurisdiction to hear constitutional challenges to

agency action. Because Noel Canning allows PMA to raise

such a challenge to the Board’s decision, PMA argues that

this court may uphold the district court’s jurisdiction on this

alternate ground. But we have previously explained that like

Leedom jurisdiction, jurisdiction under Fay applies only in

“situations in which meaningful judicial review is

unavailable.” AMERCO, 458 F.3d at 889–90. PMA’s

argument thus fails for the same reason as its Leedom

argument; it has the opportunity to raise its Noel Canning

challenge as an intervenor in the § 8(b)(4)(D) case, or if it

later files a petition as an aggrieved person under § 10(f).

IV.

The exception to the rule precluding judicial review of

interlocutory orders of the Board carved out by Leedom is a

narrow one. It is well-settled that “[a] federal district court

may exercise jurisdiction to review a [Board] order only ‘in

exceptional circumstances,’” Nat’l Air Traffic Controllers

Ass’n, 437 F.3d at 1258 (quoting Council of Prison Locals v.

Brewer, 735 F.2d 1497, 1500 (D.C. Cir. 1984)), where a party

has no feasible means to seek relief from an ultra vires order

22 PACIFIC MARITIME ASS’N V. NLRB

of the Board. Because such means were available to PMA in

this case, the district court erred in asserting jurisdiction.

REVERSED.