1 11-2262 Gally v. NLRB



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED ON OR AFTER**  **J ANUARY**  **1, 2007,**  **IS PERMITTED AND IS GOVERNED BY F**  **EDERAL R** **ULE OF A** **PPELLATE P**  **ROCEDURE 32.1**  **AND THIS COURT ’**  **S L** **OCAL R** **ULE 32.1.1.**  **W HEN CITING A SUMMARY ORDER IN A**  **DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX 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**  **. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 12 th** **day of July, two thousand twelve.** 4

**PRESENT: DENNIS JACOBS,** 5 **Chief Judge ,**  6 **ROSEMARY S. POOLER,** 7 **SUSAN L. CARNEY,** 8 **Circuit Judges**
**.** 9 - - - - - - - - - - - - - - - - - - - -X 10 **GEORGE H. GALLY, SOLO J. DOWUONA-HAMMOND,** 11 **Petitioners ,**  12

**-v.- 11-2262** 13

**NATIONAL LABOR RELATIONS BOARD,** 14 **Respondent ,**  15

**and** 16

**INTERNATIONAL UNION, UAW,** 17 **Intervenor .**  18

- - - - - - - - - - - - - - - - - - - -X 192 **FOR PETITIONERS:** W. James Young, National Right 1 to Work Legal Defense 2 Foundation, Inc., Springfield, 3 Va. 4

**FOR RESPONDENT:** Jill A. Griffin, Supervisory 5 Attorney, Elizabeth A. Heaney, 6 Attorney, Lafe E. Solomon, 7 Acting General Counsel, John H. 8 Ferguson, Associate General 9 Counsel, Linda Dreeben, Deputy 10 Associate General Counsel, 11 National Labor Relations Board, 12 Washington, D.C. 13

**FOR INTERVENOR:** Michael Nicholson, Blair K. 14 Simmons, Detroit, Mich., 15 Laurence Gold, James B. Coppess, 16 Washington, D.C. 17

Petition for review of a decision and order of the 18 National Labor Relations Board. 19

**UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 20 **AND DECREED**that the petition for review be **DISMISSED.** 21

George H. Gally and Solo J. Dowuona-Hammond petition 22 for review of a decision and order of the National Labor 23 Relations Board determining that the annual renewal 24 requirement imposed on Beckobjectors by the International 25 Union, United Automobile, Aerospace & Agricultural Implement 26 Workers of America (“UAW”) and UAW Local Union #376 did not 27 violate the duty of fair representation. See generally 28 Commc’ns Workers of Am. v. Beck , 487 U.S. 735, 762-63 (1988) 29 (“We conclude that § 8(a)(3) [of the National Labor 30 Relations Act] . . . authorizes the exaction of only those 31 fees and dues necessary to performing the duties of an 32 exclusive representative of the employees in dealing with 33 the employer on labor-management issues.” (internal 34 quotation marks omitted)). We assume the parties’ 35 familiarity with the underlying facts, the procedural 36 history, and the issues presented for review. 373 “It is . . . commonplace that jurisdiction of federal 1 courts is limited to cases and controversies.” Cook v. 2 Colgate Univ. , 992 F.2d 17, 19 (2d Cir. 1993) (citing U.S. 3 Const. art. III, § 2, cl. 1). “Hence, litigants are 4 required to demonstrate a ‘personal stake’ or ‘legally 5 cognizable interest in the outcome’ of their case.” Id. 6 (quoting United States Parole Comm’n v. Geraghty , 445 U.S. 7 388, 396 (1980)). “While the standing doctrine evaluates 8 this personal stake as of the outset of the litigation, the 9 mootness doctrine ensures that the litigant’s interest in 10 the outcome continues to exist throughout the life of the 11 lawsuit, including the pendency of the appeal.” Id. 12 (citations omitted). “Accordingly, a case that is live at 13 the outset may become moot when it becomes impossible for 14 the courts, through the exercise of their remedial powers, 15 to do anything to redress the injury.” Id. (internal 16 quotation marks omitted). 17
Petitioners are no longer members of a UAW-represented 18 bargaining unit and thus are not subject to the UAW’s annual 19 renewal requirement. Dowuona-Hammond’s NLRB charge alleged 20 that the requirement violated his rights “as well as the 21 rights of all similarly-situated employees”--who continue to 22 be subject to the requirement. But “[i]n the ordinary case, 23 a party is denied standing to assert the rights of third 24 persons.” Vill. of Arlington Heights v. Metro. Hous. Dev. 25 Corp. , 429 U.S. 252, 263 (1977)

. 26
“[A] viable claim for damages generally avoids mootness 27 of the action,” Cook , 992 F.2d at 19, but it is undisputed 28 that the UAW treated Gally as a Beckobjector during all 29 relevant times and has refunded Dowuona-Hammond the excess 30 amount withheld from him plus interest ($87.19). 31 Petitioners argue that they have not been compensated for 32 the costs they incurred filing objections, but Petitioners 33 have no viable claim for these postage costs. In their 34 exceptions to the decision of the administrative law judge-- 35 which found that the UAW and UAW Local Union #376 had 36 committed unfair labor practices and ordered them to cease 37 and desist--Petitioners requested a “‘make whole’ remedy to 38 all ‘Beckobjectors’ whose objections were treated as having 39 expired during the six months prior to the filing of Gally’s 40 charge, and whose objections were treated as having expired 41 during the pendency of these proceedings.” If Petitioners 424 sought a remedy that included the cost of filing, they would 1 have requested compensation for all Beckobjectors, even 2 those whose objections had not expired. “No objection that 3 has not been urged before the Board . . . shall be 4 considered by the court, unless the failure or neglect to 5 urge such objection shall be excused because of 6 extraordinary circumstances.” 29 U.S.C. § 160(e). 7
Petitioners contend that Knox v. Serv. Emps. Int’l 8 Union, Local 1000 , 132 S. Ct. 2277 (2012), “casts a critical 9 eye” on objection requirements such as the UAW’s. This is 10 an issue best considered after full briefing. In any event, 11 Petitioners’ claim is moot. 12

For the foregoing reasons, we **DISMISS** the petition for 13 review. 14

FOR THE COURT: 15 CATHERINE O’HAGAN WOLFE, CLERK 16 17