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Tenuto v. Clair

October 14, 2008

VINCENT TENUTO, LEO "DUKE" CLARK, BILLIE KESSLER, SHERYL FRANKLIN, KEITH RUSSEL, JOHN MARTINEC, COLLECTIVELY CALLED FIGHTING FOR THE FUTURE SLATE, PLAINTIFFS,
v.
THOMAS CLAIR, JOHN FALZONE, KEN BRANTLEY, JOHN HURLEY, MIKE MARCATANTE, LINDA CRUZ, AND TONI FIORI, COLLECTIVELY CALLED THE EVERY TEAMSTER COUNTS SLATE, DEFENDANTS.



The opinion of the court was delivered by: Robert M. Dow, Jr. United States District Judge

MEMORANDUM OPINION AND ORDER

Before the Court are Defendants' second motion to dismiss [17], Plaintiffs' response to that motion [23], and Defendants' reply [28]. Also before the Court are Plaintiffs' motion to impound ballots and facilitate conclusion of litigation [20], along with Defendants' response [25], and Plaintiffs' reply [26]. Finally, Plaintiffs also have filed a motion for expedited hearing and a preliminary injunction [29]. In their motion to dismiss and their opposition to Plaintiffs' motion to impound ballots, Defendants have raised as a threshold matter the contention that this Court lacks jurisdiction over Plaintiffs' amended complaint. The Court agrees with Defendants, and thus grants Defendants' motion to dismiss [17] and strikes Plaintiffs' motion to impound ballots [20] and Plaintiffs' motion for expedited hearing and preliminary injunction [29] as moot.

I. Background

Plaintiffs' amended complaint alleges misconduct by Defendants with respect to a union election that was held on November 3, 2007. In particular, Plaintiffs allege that Defendants engaged in a concerted effort to derail Plaintiffs' campaigning, denied some members their right to vote, and had unmonitored access to the ballots for a period of time while the ballots were being collected and counted. On the basis of those alleged irregularities, Plaintiffs request that the Court declare the election void and order a new election to be held under the supervision of a Court-appointed monitor.

Plaintiffs' complaint consists of four counts. In Count I, Plaintiffs allege that Defendants have violated Section 151 of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 151. In Count II, Plaintiffs allege that Defendants violated Section 401 of the Labor Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. § 481. Counts III and IV allege violations of the labor union's local by-laws. Defendants have moved to dismiss the complaint for lack of subject matter jurisdiction.

II. Analysis

Federal courts are courts of limited jurisdiction; "they have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto." Transit Express, Inc. v. Ettinger, 246 F.3d 1018, 1023 (7th Cir. 2001). The burden of establishing jurisdiction lies with Plaintiffs. Id. Under Fed. R. Civ. P. 12(b)(1), a party may move to dismiss a claim (or, indeed, an entire lawsuit) on the ground that the Court lacks subject matter jurisdiction.

A. Count I -- NLRA Claim

Courts long have recognized that Congress gave the National Labor Relations Board exclusive jurisdiction over unfair labor practices. The Supreme Court has held that the NLRA "preempts state and federal court jurisdiction to remedy conduct that is arguably protected or prohibited by the Act." Amalgamated Ass'n of Street, Elec. Ry. & Motor Coach Employees v. Lockridge, 403 U.S. 274, 276 (1971); see also NLRB v. Illinois Dep't of Employment Security, 988 F.2d 735, 737-78 (7th Cir. 1993). Count I alleges that Defendants violated Section 151 of the NLRA. As Defendants point out, Section 151 is the preamble of the Act, but it is clear from the remaining allegations that Plaintiffs allege interference by Defendants with Plaintiffs' exercise of their rights to campaign and to elect their representatives. Those alleged actions at least arguably constitute unfair labor practices within the scope of the NLRB's exclusive authority under the NLRA. Id. at 738 ("when an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board") (citing San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245 (1959)); Southern Illinois Laborers Dist. Council v. Special Mine Servs., Inc., 754 F. Supp. 645, 646 (S.D. Ill. 1990) (noting that "Section 8 of the NLRA proscribes as an unfair labor practice coercion of an employee who is exercising his rights under the NLRA").*fn1

Accordingly, this Court lacks jurisdiction over Count I of Plaintiffs' amended complaint and must dismiss Count I without prejudice. See, e.g., Murray v. Conseco, Inc., 467 F.3d 602, 605 (7th Cir. 2006) (noting that a dismissal for lack of subject matter jurisdiction is "not on the merits" and therefore must be without prejudice).

B. Count II -- LMRDA Claim

Title IV of the LMRDA is designed to ensure free and democratic union elections. See Wirtz v. Local 153, Glass Bottle Blowers Ass'n, 389 U.S. 463, 470-71 (1968). It sets forth the substantive rules governing union elections (29 U.S.C. § 481) and the mechanism for enforcing those rules (29 U.S.C. § 482). Union members who allege violations of the election rules must first exhaust union remedies (29 U.S.C. § 482(a)), and then may file a complaint with the United States Department of Labor (id.). After investigating the complaint, the Secretary of Labor may file a suit in federal district court to set aside the election if she feels that such a suit is warranted.

29 U.S.C. § 482(b); see also Molina v. Union de Trabajadores de Muelles, 762 F.2d 166, 167 (1st Cir. 1985) ("Enforcement of Title IV rests with the Secretary of Labor, who investigates individual members' complaints and files suit in federal court if a grievance has merit"). "Under Title IV, the Secretary [of Labor] has the exclusive authority to challenge in federal court an election already conducted." Chao v. Local 743, Int'l Brotherhood of Teamsters, 500 F. Supp. 2d 855, 860 (N.D. Ill. 2007) (citing 29 U.S.C. § 483); see also Local No. 92 Furniture & Piano Moving, Furniture Store Drivers v. Crowley, 467 U.S. 526, 544 (1984); Chao v. Local 743, Int'l Brotherhood of Teamsters, 467 F.3d 1014, 1017 (7th Cir. 2007).*fn2 In other words, "[a] suit by the Secretary is the sole post-election remedy for challenging union elections in federal court." Chao, 500 F. Supp. 2d at 860; see also Molina, 762 F.2d at 167 ("Title IV's remedies are exclusive for completed elections") (emphasis in original).

Here, Plaintiffs' complaint plainly alleges a violation of Section 481 and seeks a "post-election remedy" for alleged misconduct in a "completed" election. Accordingly, Plaintiffs' sole remedy is to file a complaint with the Labor Department, which Plaintiffs apparently have done based on the representations in their briefs. Should the Department decline to file suit on Plaintiffs' behalf, the Department must provide a statement of reasons and Plaintiffs then may have a right to review of that decision. See Corner v. Department of Labor, 2006 WL 1877049, at *1-*2 (N.D. Ill. July 5, 2006). However, Plaintiffs have no claim under the ...


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