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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

New York, on the 12th 4 day of July, two thousand twelve.

5 PRESENT: DENNIS JACOBS,

6 Chief Judge,

7 ROSEMARY S. POOLER,

8 SUSAN L. CARNEY,

9 Circuit Judges.

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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.

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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.
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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
4

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

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