In the

United States Court of Appeals

For the Seventh Circuit

Nos. 12-1973 & 12-1984

DOUGLAS RICHARDS, et al.,

Petitioners,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent,

and

UNITED STEEL, PAPER AND FORESTRY,

RUBBER, MANUFACTURING, ENERGY, ALLIED

INDUSTRIAL AND SERVICE WORKERS

INTERNATIONAL UNION, AFL-CIO/CLC, et al.,

Intervenors-Respondents.

On Petitions for Review of Decisions and Orders

of the National Labor Relations Board.

Nos. 25-CB-8891, 25-CB-9253,

25-CB-9254, 13-CB-18961, and 13-CB-18962.

ARGUED NOVEMBER 30, 2012—DECIDED DECEMBER 26, 2012

Before BAUER, ROVNER, and WILLIAMS, Circuit Judges.
2 Nos. 12-1973 & 12-1984

WILLIAMS, Circuit Judge. The labor unions in this consolidated appeal allowed non-union members who were

part of their bargaining units to file objections if they

wished to opt out of paying dues used to support

political and other activities unrelated to collective bargaining, contract administration, or grievance adjustment, pursuant to CWA v. Beck, 487 U.S. 735 (1988). However, the unions required that these objections be

renewed on an annual basis if the employee wanted to

remain opted-out. Petitioners, nonmember employees

who were part of the unions’ bargaining units, filed

separate unfair labor practice charges against the

unions, arguing that these “annual renewal” policies

violated the unions’ duty of fair representation by

placing an undue burden on objectors, and they sought

an order striking down these policies. Although they

did not seek refunds for themselves because the Petitioners were always opted-out, they also sought refunds

for other employees who may have filed objections at one

time, but failed to renew them. On appeal to the NLRB,

the Board struck down the unions’ annual renewal

policies, but did not grant Petitioners’ request for

refunds on behalf of others.

Petitioners challenge the NLRB’s decisions on the

merits and also argue that the April 2012 final NLRB

orders were not legitimate because the President’s

January 4, 2012 recess appointments of three of the

five NLRB members were invalid. We do not reach

these issues, however, because Petitioners lack standing

to bring this appeal since the NLRB struck down the

annual renewal policies which were the only source of
Nos. 12-1973 & 12-1984 3

injury each Petitioner suffered. Because Petitioners no

longer suffer an injury-in-fact and do not satisfy the

statutory “aggrieved” requirement, see 29 U.S.C. § 160(f),

we dismiss the petitions for review.

I. BACKGROUND

As the United States Supreme Court explained in CWA

v. Beck, 487 U.S. 735, 738 (1988), the National Labor Relations Act (“NLRA”) “permits an employer and an exclusive bargaining representative to enter into an agreement requiring all employees in the bargaining unit to

pay periodic union dues and initiation fees as a condition of continued employment, whether or not the employees otherwise wish to become union members.”

However, it held that expending collected fees on

activities “unrelated to collective bargaining, contract

administration, or grievance adjustment” over the objections of fee-paying nonmember employees was a violation of the union’s “duty of fair representation.” Id.

Those who make such objections are known as Beck

objectors.

So policies were implemented by United Steel, Paper

and Forestry, Rubber, Manufacturing, Energy, Allied

Industrial and Service Workers International Union, AFLCIO/CLC (“USW”); the International Brotherhood of

Electrical Workers, AFL-CIO (“IBEW”); and IBEW Local 34

to allow nonmember employees to file objections, which

would result in a reduction of the Beck objectors’ fees

that funded nonrepresentational activities. The unions

also required Beck objectors to renew their objections on
4 Nos. 12-1973 & 12-1984

an annual basis if they wished to continue opting out

of paying such fees.

On June 10, 2005, Douglas Richards, an Indiana resident

who worked at a Cequent Towing Products factory in

Goshen, Indiana, filed an unfair labor practice charge

against USW, arguing that the “annual renewal” policy

placed an undue burden on those who wish to maintain their Beck objector status without having to renew

every year. Ronald R. Echegaray and David Yost—Pennsylvania and West Virginia residents, respectively—who

worked at a Chemtura Corporation factory in West Virginia filed similar charges against USW on November 17,

2008. John Lugo, an Illinois resident and journeyman

electrician who obtained employment with various employers through a hiring hall, also filed a charge on June 10,

2008, against IBEW and IBEW Local 34. These individuals

(the “charging parties”) strongly disagreed with contributing to what they perceived to be the union’s

political activities. Echegaray and Yost always annually

renewed their objections, and Richards and Lugo were

never required by the unions to annually renew their

objections. But they all sought to put an end to the

annual renewal policies so that they would no longer

have to deal with or worry about having to renew

their objections every year.

In response to the above charges, the NLRB General

Counsel, who is independent from the NLRB and investigates unfair labor practice charges to determine whether

to prosecute them, filed a complaint against IBEW and

IBEW Local 34 on August 28, 2008, and a consolidated
Nos. 12-1973 & 12-1984 5

complaint against USW on May 8, 2009. The NLRB

General Counsel urged an end to the annual renewal

policies, but the charging parties also asked for refunds

for all employees who had once objected in the past but

failed to renew. See 29 C.F.R. § 102.8 (charging parties

considered to be parties to NLRB proceedings by default). Significantly, the charging parties were not

alleging an entitlement to refunds for themselves, since

they annually renewed their objections or were otherwise

treated as Beck objectors at all relevant times. The ALJ

assigned to hear the IBEW matter struck down IBEW Local

34’s annual renewal policy on December 19, 2008, but

declined to order refunds for all employees who had

objected in the past but failed to renew their objections.

The ALJ assigned to hear the USW matter dismissed the

complaint in its entirety on August 6, 2009, and the decisions were appealed to the NLRB (alternatively, the

“Board”).

In August 2011, the Board ruled that the annual

renewal policies violated the unions’ duty of fair representation, and ordered that the annual renewal policies

no longer be enforced. It did not, however, address

the request for refunds. Later that month, the charging

parties, not the NLRB General Counsel, filed motions

for reconsideration, asking that refunds also be

awarded. While the motions for reconsideration were

pending, the terms of two Board members expired. This

left only two seats filled, and at least a three-member

quorum is required for the Board to take action. See New

Process Steel, L.P. v. NLRB, 130 S. Ct. 2635, 2642 (2010). On

January 4, 2012, President Obama made three recess
6 Nos. 12-1973 & 12-1984

appointments to the Board, bringing the Board to its full

five-member capacity. The charging parties moved to

disqualify the appointees. And several senators opposed

these appointments, arguing that they were invalid

because, they contend, the Senate was not actually in

recess.

In April 2012, the Board entered orders denying the

motions for reconsideration, ruling that retroactive

refunds were inappropriate because the unions had not

necessarily been on notice that their annual renewal

policies were unlawful, and it declined to consider

the legitimacy of the recess appointments. The charging

parties (“Petitioners”) timely filed petitions for review

to this court.

II. ANALYSIS

Petitioners argue that the NLRB decisions denying

their request for retroactive refunds should be reversed

and the matter remanded because they were not made

by a properly constituted Board. They assert that the

Recess Appointments Clause only allows recess appointments to be made if the vacancies originate during

the Senate’s recess, and that recess appointments can

only be made during intersession recesses (any recess

between the two annual sessions of Congress, generally

starting sometime in December and ending on January 3

when the next session starts) and not intrasession

recesses (any recess during an annual session of Congress). Petitioners reason that the recess appointments

were also invalid because the Senate did not consider
Nos. 12-1973 & 12-1984 7

itself to be in recess at the time the appointments were

made notwithstanding its designation of its sessions

as “pro forma.” On the merits, Petitioners also challenge the Board’s denial of retroactive relief in the form

of refunds. We need not address these arguments, however, because we agree with Respondents that Petitioners lack standing to bring this appeal.

A. Petitioners Were Not “Aggrieved” Because Their

Only Claimed Injury Was Redressed by the Final

NLRB Orders

The relevant portion of the National Labor Relations

Act provides:

Any 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 any

United States court of appeals in the circuit

wherein the unfair labor practice in question was

alleged to have been engaged in or wherein such

person resides or transacts business, or in the

United States Court of Appeals for the District of

Columbia, by filing in such a court a written

petition praying that the order of the Board be

modified or set aside.

29 U.S.C. § 160(f). Therefore, only persons who are “aggrieved” by the Board’s final order may petition for

review of the decision by the Court of Appeals. “A party

is ‘aggrieved’ by an order if the order results in an

‘adverse effect in fact.’ ” Harrison Steel Castings, Co. v.

NLRB, 923 F.2d 542, 545 (7th Cir. 1991) (citation omitted).
8 Nos. 12-1973 & 12-1984

The parties generally assume that the meaning of the

term “aggrieved” is coextensive with the familiar “injuryin-fact” requirement of Article III standing. See Bloom v.

NLRB, 153 F.3d 844, 849 (8th Cir. 1998), rev’d on other

grounds sub nom. Local 12, OPEIU v. Bloom, 119 S. Ct. 1023

(1999) (“Congress’s express grant of standing to

aggrieved persons such as Bloom extends to the limits of

that which is permitted by Article III . . . .”). However, the

Supreme Court recently held that a similar “aggrieved”

requirement in Title VII did not refer to “anyone with

Article III standing,” but referred more narrowly to

people who “ ‘fall[] within the “zone of interests” sought

to be protected by the statutory provision whose

violation forms the legal basis for his complaint.’ ” Thompson v. N. Am. Stainless, LP, 131 S. Ct. 863, 870 (2011)

(citation omitted). A party’s interests do not fall within

that “zone” if they “ ‘are so marginally related to or

inconsistent with the purposes implicit in the statute that

it cannot reasonably be assumed that Congress intended

to permit the suit.’ ” Id. (citation omitted).

We need not decide whether the term “aggrieved” in

the NLRA refers to anyone who suffers an “injury-infact” for Article III purposes or refers to something narrower. Even if the more generous requirements of

Article III standing governed the definition of that term,

Petitioners have not themselves suffered any injury-infact from the NLRB decisions. Petitioners either

renewed their objections annually under protest or were

never required to renew their objections at all, and so

their only injury was the burden or threat of having to

renew their objections year after year. In August 2011
Nos. 12-1973 & 12-1984 9

when the NLRB ordered the unions to no longer enforce

their annual renewal policies, that burden was lifted and

the threat was removed. That decision is not being appealed by the unions. Petitioners themselves simply

suffered no injuries from the Board decisions that could

be remedied on appeal, and so they lack standing to

bring the instant petitions for review. See, e.g., Pirlott v.

NLRB, 522 F.3d 423, 433 (D.C. Cir. 2008) (“There is

nothing in the Board’s decision that resulted in a cognizable injury to the Charging Parties sufficient to support

a showing of aggrievement under [§ 160(f)].”).

B. The NLRB’s Failure to Reimburse Echegaray and

Yost for Postage Does Not Confer Standing Since

that Request Was Waived 

Petitioners argue that at least Echegaray and Yost were

“aggrieved,” because the NLRB decisions failed to order

reimbursement for the postage costs that they incurred

when they annually mailed their objections. To be sure, “an

identifiable trifle is enough to fight out a question

of principle; the trifle is the basis for standing and the

principle provides the motivation.” United States v.

SCRAP, 412 U.S. 669, 689 n.14 (1973). But a thorough

review of the record on appeal makes clear that Petitioners never made any meaningful request for postage

reimbursement at any stage of the administrative proceedings. See Local 65-B, IBT v. NLRB, 572 F.3d 342, 348

(7th Cir. 2009) (“the NLRA bars us from considering

arguments that the party petitioning for review did not

raise before the Board” (citing 29 U.S.C. § 109(e))). We
10 Nos. 12-1973 & 12-1984

cannot analyze, on the merits, whether the NLRB

abused its discretion in denying certain relief when the

NLRB never had a meaningful opportunity to even consider a request for that relief to begin with.

Petitioners stress that they amply communicated their

request for “make-whole” relief and suggest that the

use of this term in the NLRB context somehow includes

a request for postage reimbursement (i.e., Echegaray

and Yost cannot be “made whole” unless they are reimbursed for that postage). The NLRB regulations and

guidelines cited by Petitioners do suggest that “makewhole” relief is a term of art that is used in the NLRB

proceedings with some frequency (though they suggest

little more than that). But even if a request for “makewhole” relief by a Beck objector, who annually renews

his objection under protest, provides meaningful notice

of a postage reimbursement claim to the NLRB,

Petitioners did not give adequate notice that they were

seeking “make-whole” relief on behalf of themselves. In

the motion for reconsideration filed by Richards,

Echegaray, and Yost, they expressly state: “Charging

Parties hereby ask the Board, on reconsideration, to

order such nationwide similarly situated ‘make whole’

remedies for all other discriminatees besides the three

Charging Parties” (emphasis added). Neither the original

charges filed nor the NLRB General Counsel complaints

seek “make-whole” relief on behalf of Petitioners. The

brief filed by Richards, Echegaray, and Yost appealing

the ALJ decision did include a request for a “nationwide

reimbursement remedy,” but it later explains exactly

what they meant: “in order to return employees to the
Nos. 12-1973 & 12-1984 11

position that they would have been in ‘but for’ the

USW’s unlawful policies, the union must reimburse all dues

that it collected for nonrepresentational purposes from

employees . . . whose Beck objections were not honored . . .

or whose status was changed from objector to nonobjector as a result of the policy” (emphasis added).

Postage reimbursement was not mentioned. It has been

clear from the beginning that the only “make-whole” or

retroactive relief Petitioners ever really sought was the

refund of dues for other employees. Because any

request for postage reimbursement has been waived,

this last-minute request cannot serve as a basis for standing. Cf. Chicago United Indus., Ltd. v. City of Chicago, 445

F.3d 940, 948 (7th Cir. 2006) (“ ‘[I]t should have been

clear to the Court of Appeals that a claim for nominal

damages, extracted late in the day from Yniguez’s

general prayer for relief and asserted solely to avoid

otherwise certain mootness, bore close inspection.’ ”

(quoting Arizonans for Official English v. Arizona, 520

U.S. 43, 71 (1997))).

We also note that, since we may only consider

petitions for review of NLRB decisions if this circuit is

“where[] the unfair labor practice in question was

alleged to have been engaged in or where[] such person

resides or transacts business,” 29 U.S.C. § 160(f), Echegaray

and Yost may also lack standing by virtue of where

they live and work. Echegaray lives in Pennsylvania,

Yost lives in West Virginia, both work in West Virginia,

and USW is headquartered in Pennsylvania (where the

annual renewal policy was presumably drafted). Given

these facts, it was incumbent upon Echegaray and Yost
12 Nos. 12-1973 & 12-1984

Though the NLRB General Counsel technically takes up the 

baton after the charges are filed, 29 C.F.R. § 102.8 generally

permits the charging parties to fully participate as parties

throughout the administrative proceedings.

to also explain in their Jurisdictional Statement how it

is that they are entitled to petition this court for review. They did not.

C. Petitioners Do Not Have Standing to Petition for

Review Just Because They Are Charging Parties

The essence of Petitioners’ final argument is that they

have standing simply because they were the original

charging parties. They suggest that they should be the

ones to see it to the end since they initiated this action

on behalf of themselves and their fellow employees.

Some cases contain language that would seem to

support this view. See, e.g., UAW v. Scofield, 382 U.S. 205,

210 (1965) (“[W]hen the Board dismisses certain portions

of the complaint and issues an order on others . . . [t]he

charging party is aggrieved with respect to the portion

of the decision dismissing the complaint.”); Local 282,

IBT v. NLRB, 339 F.2d 795, 799 (2d Cir. 1964) (“[W]hen

the case has been carried to a decision on the merits by

the Board, the charging party has standing as a ‘person

aggrieved’ under [§ 160(f)] to seek review of an order

granting inadequate relief or denying it altogether. The

General Counsel cannot appeal from his own Board’s

decision, the respondent has no motive to do so, and

this portion of the statute would thus be rendered nuga-
Nos. 12-1973 & 12-1984 13

tory unless the charging party were recognized as a

‘person aggrieved.’ ”); Marine Eng’rs Beneficial Ass’n No.

13 v. NLRB, 202 F.2d 546, 548 (3d Cir. 1953) (The NLRB

“rules and regulations permit the charging party to be

listed as a party to the proceedings from the outset

instead of relating him to intervention. He is a party

aggrieved under [§ 160] and . . . ‘may contest’ the correctness of the Board’s order.” (citation omitted));

NLRB v. OCAWIU, 476 F.2d 1031, 1036 (1st Cir. 1973)

(“[T]he charging party in an unfair labor practice proceeding possesses a unique legal status. Although like a

complaining witness in a criminal prosecution in that

it cannot compel issuance of a complaint, it has far

greater powers once the complaint issues . . . [and]

participate[s] fully in the subsequent hearing and proceedings before the Board . . . . If its position is unsuccessful before the Board, it may petition the appropriate

court for review, as ‘a person aggrieved’ under [§ 160(f)].”);

see also UAW v. NLRB, 231 F.2d 237, 242 (7th Cir. 1956)

(“The charging party in a labor case is something like

a complaining witness in a criminal case. But he is

much more than that, for a complaining witness is not

entitled to appeal even where an appeal is allowed for

the prosecution in a criminal case.”).

However, none of these cases involved a situation

like this one, where the charging party was not

actually injured by the final NLRB order. See, e.g., IWIU

v. NLRB, 360 F.2d 823, 826 (D.C. Cir. 1966) (“Of course,

a charging party in some circumstances may be

aggrieved by an order which denies in part the relief

sought, but that does not seem to us to be the case pre-
14 Nos. 12-1973 & 12-1984

sented here.”). The text of 29 U.S.C. § 160(f) does not

suggest that charging parties have talismanic status for

standing purposes, and it strictly refers to “person[s]

aggrieved,” with no exceptions for charging parties or

for anyone else.

Continuing their theme that charging parties occupy

a special category of persons with standing, Petitioners

analogize this case to a class action, and point to the wellestablished rule that the mootness of a class representative’s claim does not automatically prohibit the

class representative from continuing to litigate the class

action. See Sosna v. Iowa, 419 U.S. 393, 401 (1975). They

argue that like class representatives, the charging

parties here have brought and litigated this case on

behalf of similarly situated employees. See NLRB v. Ind. &

Mich. Elec. Co., 318 U.S. 9, 17 (1943) (even a “stranger” to

the dispute may bring a charge on behalf of someone

else); 29 U.S.C. § 160(b) (no mention of any prerequisites

for filing a charge); 29 C.F.R. § 102.9 (“A charge . . . may

be made by any person . . . .”). So they contend that

kicking them out at this stage because they no longer

need a remedy for themselves would be tantamount to

improperly kicking a class representative out simply

because the representative’s claims become moot. The

Eighth Circuit has adopted a version of this theory, see

Bloom, 153 F.3d at 848, as has the Sixth Circuit in an

unpublished decision. See Cecil v. NLRB, 194 F.3d 1311,

1999 WL 970312, at *3 n.1 (6th Cir. Oct. 14, 1999) (unpublished) (“We recognize that Cecil’s lawsuit has never

been formally certified as a proper class action, . . . [but]

[w]e see no functional difference, as it relates to mootness,
Nos. 12-1973 & 12-1984 15

between this process and that of typical class actions. . . .

[W]e are comfortable applying [the Supreme Court’s]

decisions on mootness and class actions in this analogous

context.”). But see Orce v. NLRB, 133 F.3d 907 (2d Cir.

Dec. 9, 1997) (unpublished).

As a preliminary matter, we note that Petitioners’

endeavor to employ a class action analogy potentially

backfires. Though the unions acknowledge that anyone

can file the initial unfair labor practice charge, even

total “strangers,” see Ind. & Mich. Elec. Co., 318 U.S. at 17,

they suggest that Petitioners are not similarly situated

enough with the employees who want refunds to adequately represent them. It is indeed unclear that

Petitioners are “similarly situated” with the employees

who want refunds: while they were all subject to the

same annual renewal policies, the relief sought is quite

different. In addition, including employees who once

objected but later failed to renew potentially raises the

unique problem of determining whether each of those

employees simply intended not to renew (i.e., intended

to opt back in), and thereby presumably lost his right to

a refund. We also acknowledge on the other hand that

the NLRA does not have an explicit “similarly situated”

type of requirement, unlike, for instance, the Fair

Labor Standards Act. See 29 U.S.C. § 216(b) (“An action to

recover the liability prescribed . . . may be maintained

against any employer . . . by any one or more employees

for and in behalf of himself or themselves and other

employees similarly situated.”). And nothing in the record before us suggests that the ALJs or the NLRB took

issue with Petitioners’ seeking relief on behalf of the
16 Nos. 12-1973 & 12-1984

employees allegedly entitled to refunds (neither, for

that matter, did the unions during the administrative

proceedings).

We need not decide today whether some kind of representativeness or “similarly situated” requirement exists in

the NLRA, or, if so, whether Petitioners satisfy that requirement. That is because even if Petitioners pass that

test with flying colors, and even if Petitioners are right

that class action mootness principles apply in the

NLRB context, they still do not have standing. Simply

put, whether a case is moot under Article III is not the

same as whether a party has been statutorily “aggrieved”

by the NLRB. See, e.g., In Matter of The Watch Ltd., 257

Fed. Appx. 748, 749-50 (5th Cir. Dec. 7, 2007) (unpublished) (analyzing statutory “persons aggrieved” requirement in bankruptcy context separately from Article III

mootness); Public Utils. Comm’n v. FERC, 100 F.3d 1451,

1457-59 (9th Cir. 1996) (analyzing statutory “aggrieved”

requirement in Natural Gas Act separately from Article III

mootness); N.C. Utils. Comm’n v. FERC, 653 F.2d 655, 660-

69 (D.C. Cir. 1981) (same). In this case, we do not find

that the instant petitions are moot for Article III

purposes; we simply find that Petitioners have failed to

satisfy the statute’s aggrievement requirement. Petitioners suggest that they are indispensable to the

appellate process in asserting that “only a charging party

can . . . seek judicial review” of final NLRB orders

(Reply Br. at 8 (emphasis added)), but that assertion is

directly contrary to the plain text of 29 U.S.C. § 160(f),

which provides that “[a]ny person who has been

aggrieved by a final order of the Board” may bring a

petition for review. (Emphasis added.)
Nos. 12-1973 & 12-1984 17

III. CONCLUSION

For the above-stated reasons, we DISMISS the petitions

for review.

12-26-12