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HARPER v. NLRB

August 19, 1992

ROBERT J. HARPER, Plaintiff,
v.
NATIONAL LABOR RELATIONS BOARD, Defendant.



The opinion of the court was delivered by: JEROME B. SIMANDLE

SIMANDLE, DISTRICT JUDGE:

 Currently before the court is defendant's motion to dismiss plaintiff's complaint, pursuant to Fed. R. Civ. P. 12(b). For the following reasons, the motion will be granted.

 I. FACTUAL AND PROCEDURAL BACKGROUND

 On March 13, 1992, plaintiff Robert Harper ("Harper"), filed a complaint against the National Labor Relations Board ("the NLRB" or "the Board"), seeking review of the NLRB's certification of a unit for collective bargaining purposes in case # 4-RC-17578, a nullification of the election which resulted from the decision, and an injunction prohibiting Trump Taj Mahal ("the Taj") from collective bargaining with the International Alliance of Theatrical Stage Employees Local 917 ("Local 917") and the International Union of Operating Engineers Local 68A ("Local 68A"). On March 17, 1992 plaintiff filed an amended complaint against the NLRB, which sought the same relief, and added a claim that his due process rights were violated during the representation proceeding. On March 18, 1992, plaintiff filed an application for a temporary restraining order, which he withdrew by letter to the court dated May 26, 1992.

 Plaintiff's complaint challenges the composition of the bargaining unit certified by the NLRB. The material facts underlying the allegation are set forth as follows.

 Local 917 and Local 68A filed a joint petition with Region 4 of the Board for a representation election to be conducted in a unit of employees at the Trump Taj Mahal under Section 9(c) of the National Labor Relations Act, 29 U.S.C. § 158(c) ("the Act"). On April 19, 1991 the Regional Director for Region 4 issued a decision and direction of election in Trump Taj Mahal Associates and International Alliance of Theatrical Stage Employees, Local 917 and International Union of Operating Engineers Local 68A, Case 4-Rc-17578. The director found that the petitioned-for unit of full-time and regular part-time entertainment and audio-visual technicians, including "casual" employees who worked intermittently but averaged more than four (4) hours of work per week during the last quarter prior to the eligibility date were an eligible bargaining unit.

 The employer filed a request for review of the Regional Director's decision in Washington, pursuant to 29 C.F.R. 102.67. The employer argued that: (1) the appropriate bargaining unit for collective bargaining purposes should include all entertainment department employees, including ushers, ticket takers, and box office clerks; and (2) that the petitioned-for unit improperly included casual employees because those employees work on a sporadic and intermittent basis with no reasonable expectation of continued employment. The Board partially granted the employer's request, and agreed to review only the issue of the unit inclusion and eligibility of the employer's "casual" technicians. The election went forward on May 20, 1991, and the ballots were impounded pending the Board's Decision on Review.

 Dissatisfied with this decision, the plaintiff filed the instant action to nullify the vote which led to the certification of Locals 917 and 68A as joint representatives and to enjoin the unions from engaging in collective bargaining on behalf of the alleged unit. The plaintiff attached petitions which purport to contain the signatures of various members of the unit who allegedly seek a nullification of the vote.

 Defendant filed the instant motion to dismiss the complaint on March 20, 1992. Defendant had previously notified plaintiff of its intent to file, pursuant to Rule 12, Appendix N to the General Rules of the United States District Court for the District of New Jersey, adopted by this judge, which requires parties to confer before filing dispositive motions. Plaintiff further received notice of the filing of the motion itself and received copies of the defendant's moving papers. Cover Letter to Defendant's Motion, dated May 18, 1992. Despite having received this notice and the opportunity to respond, plaintiff has filed no opposition to the instant motion.

 II. DISCUSSION

 The court begins this discussion by noting that the paucity and lack of clarity of plaintiff's amended complaint, coupled with plaintiff's failure to file any opposition to the instant motion, has rendered it difficult for the court to discern the bases of plaintiff's complaint. However, the relief which plaintiff seeks appears plainly enough - he desires a reversal of the decision of the Board which identified the previously described class of employees as a bargaining unit and injunctive relief forbidding the chosen unions from bargaining with the Taj.

 It is axiomatic that the federal courts are courts of limited jurisdiction. As the Supreme Court long ago stated with respect to the power of the federal courts, "the first and fundamental question is that of jurisdiction . . . This question the court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relation of the parties to it." Mansfield C. & L. M. R. Co. v. Swan, 111 U.S. 379, 382, 28 L. Ed. 462, 4 S. Ct. 510 (1884), quoted in Bender v. Williamsport Area School District, 475 U.S. 534, 546, 89 L. Ed. 2d 501, 106 S. Ct. 1326 (1985).

 One of plaintiff's asserted bases for the jurisdiction of this court is 29 U.S.C. § 185. This section does not apply to the litigation as presently before this court. By its language, the section applies to "suits for violation of contracts between an employer and a labor organization . . ." 29 U.S.C. § 185(a). As plaintiff has not alleged the breach of any contract, and the NLRB is neither an employer nor a labor organization, this section provides no basis for plaintiff's requested relief. The employer in this case is the Taj, and the labor organizations involved are Local 68A, Operating Engineers and Local 917, International Alliance of Theatrical Stage Employees. Plaintiff has failed to name any of these entities as defendants in this matter. The ...


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