dismissing as moot an employee’s petition for review because the employee was no longer a union member subject to a disputed requirement and the union had refunded dues
How later courts described this case
- dismissing as moot an employee’s petition for review because the employee was no longer a union member subject to a disputed requirement and the union had refunded dues
- vacating a similarly mooted petition for review
Written by the judges who cited it.
The opinion
11-2262
Gally v. NLRB
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 12th day of July, two thousand twelve.
5 PRESENT: DENNIS JACOBS,
6 Chief Judge,
7 ROSEMARY S. POOLER,
8 SUSAN L. CARNEY,
9 Circuit Judges.
10 - - - - - - - - - - - - - - - - - - - -X
11 GEORGE H. GALLY, SOLO J. DOWUONA-HAMMOND,
12 Petitioners,
13 -v.- 11-2262
14 NATIONAL LABOR RELATIONS BOARD,
15 Respondent,
16 and
17 INTERNATIONAL UNION, UAW,
18 Intervenor.
19 - - - - - - - - - - - - - - - - - - - -X
1
1 FOR PETITIONERS: W. James Young, National Right
2 to Work Legal Defense
3 Foundation, Inc., Springfield,
4 Va.
5 FOR RESPONDENT: Jill A. Griffin, Supervisory
6 Attorney, Elizabeth A. Heaney,
7 Attorney, Lafe E. Solomon,
8 Acting General Counsel, John H.
9 Ferguson, Associate General
10 Counsel, Linda Dreeben, Deputy
11 Associate General Counsel,
12 National Labor Relations Board,
13 Washington, D.C.
14 FOR INTERVENOR: Michael Nicholson, Blair K.
15 Simmons, Detroit, Mich.,
16 Laurence Gold, James B. Coppess,
17 Washington, D.C.
18 Petition for review of a decision and order of the
19 National Labor Relations Board.
20 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
21 AND DECREED that the petition for review be DISMISSED.
22 George H. Gally and Solo J. Dowuona-Hammond petition
23 for review of a decision and order of the National Labor
24 Relations Board determining that the annual renewal
25 requirement imposed on Beck objectors by the International
26 Union, United Automobile, Aerospace & Agricultural Implement
27 Workers of America (“UAW”) and UAW Local Union #376 did not
28 violate the duty of fair representation. See generally
29 Commc’ns Workers of Am. v. Beck, 487 U.S. 735, 762-63 (1988)
30 (“We conclude that § 8(a)(3) [of the National Labor
31 Relations Act] . . . authorizes the exaction of only those
32 fees and dues necessary to performing the duties of an
33 exclusive representative of the employees in dealing with
34 the employer on labor-management issues.” (internal
35 quotation marks omitted)). We assume the parties’
36 familiarity with the underlying facts, the procedural
37 history, and the issues presented for review.
2
1 “It is . . . commonplace that jurisdiction of federal
2 courts is limited to cases and controversies.” Cook v.
3 Colgate Univ., 992 F.2d 17, 19 (2d Cir. 1993) (citing U.S.
4 Const. art. III, § 2, cl. 1). “Hence, litigants are
5 required to demonstrate a ‘personal stake’ or ‘legally
6 cognizable interest in the outcome’ of their case.” Id.
7 (quoting United States Parole Comm’n v. Geraghty, 445 U.S.
8 388, 396 (1980)). “While the standing doctrine evaluates
9 this personal stake as of the outset of the litigation, the
10 mootness doctrine ensures that the litigant’s interest in
11 the outcome continues to exist throughout the life of the
12 lawsuit, including the pendency of the appeal.” Id.
13 (citations omitted). “Accordingly, a case that is live at
14 the outset may become moot when it becomes impossible for
15 the courts, through the exercise of their remedial powers,
16 to do anything to redress the injury.” Id. (internal
17 quotation marks omitted).
18 Petitioners are no longer members of a UAW-represented
19 bargaining unit and thus are not subject to the UAW’s annual
20 renewal requirement. Dowuona-Hammond’s NLRB charge alleged
21 that the requirement violated his rights “as well as the
22 rights of all similarly-situated employees”--who continue to
23 be subject to the requirement. But “[i]n the ordinary case,
24 a party is denied standing to assert the rights of third
25 persons.” Vill. of Arlington Heights v. Metro. Hous. Dev.
26 Corp., 429 U.S. 252, 263 (1977).
27 “[A] viable claim for damages generally avoids mootness
28 of the action,” Cook, 992 F.2d at 19, but it is undisputed
29 that the UAW treated Gally as a Beck objector during all
30 relevant times and has refunded Dowuona-Hammond the excess
31 amount withheld from him plus interest ($87.19).
32 Petitioners argue that they have not been compensated for
33 the costs they incurred filing objections, but Petitioners
34 have no viable claim for these postage costs. In their
35 exceptions to the decision of the administrative law judge--
36 which found that the UAW and UAW Local Union #376 had
37 committed unfair labor practices and ordered them to cease
38 and desist--Petitioners requested a “‘make whole’ remedy to
39 all ‘Beck objectors’ whose objections were treated as having
40 expired during the six months prior to the filing of Gally’s
41 charge, and whose objections were treated as having expired
42 during the pendency of these proceedings.” If Petitioners
3
1 sought a remedy that included the cost of filing, they would
2 have requested compensation for all Beck objectors, even
3 those whose objections had not expired. “No objection that
4 has not been urged before the Board . . . shall be
5 considered by the court, unless the failure or neglect to
6 urge such objection shall be excused because of
7 extraordinary circumstances.” 29 U.S.C. § 160(e).
8 Petitioners contend that Knox v. Serv. Emps. Int’l
9 Union, Local 1000, 132 S. Ct. 2277 (2012), “casts a critical
10 eye” on objection requirements such as the UAW’s. This is
11 an issue best considered after full briefing. In any event,
12 Petitioners’ claim is moot.
13 For the foregoing reasons, we DISMISS the petition for
14 review.
15 FOR THE COURT:
16 CATHERINE O’HAGAN WOLFE, CLERK
17
4