Controlling authority reflected in Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 48, 51 (1938) and Amerco v. NLRB, 458 F.3d 883, 884, 888 (9th Cir. 2006) establishes that district courts are without jurisdiction to review or enjoin the National Labor Relations Board’s administrative proceedings. Any constitutional or procedural objections that Plaintiff may have with respect to the current administrative proceedings must be raised, first, in the administrative forum, and is subject to subsequent court review only after a final decision issues by the National Labor Relations Board and, then, only in a United States Courts of Appeals, in Case 2:16-cv-06955-PSG-GJS Document 45-2 Filed 10/24/16 Page 2 of 5 Page ID #:775 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 accordance with the applicable statute, 29 U.S.C. § 160(f). Because Plaintiff has an adequate avenue for remedial review, it cannot rely on the “extremely narrow” exception to Myers created by Leedom v. Kyne, 358 U.S. 184 (1958).

Compare N.L.R.A. Sec. 10(f), 29 U.S.C. § 160(f), and Rules & Regs Sec. 101.11-101.14 with Exec. Law § 298.

(Fallbrook Hospital Corp. v. NLRB, supra, 785 F.3d 729, 735 (Gnternal punctuation omitted).) In ABF Freight System, Inc. v. NLRB (1994) 510 U.S. 317, the United States Supreme Court considered the language of the NLRA, which grants the NLRBthe remedial authority to direct violators to “to take such affirmative action including reinstatement of employees with or without back pay,as will effectuate the policies of this subchapter... .” (29 U.S.C. § 160(c).) In the 28 course of upholding the NLRB’s decision to order a reinstatement remedy for an employee whohad perjured himself, the Supreme Court stated that “[w]Jhen Congress expressly delegates to an administrative agency the authority to make specific policy determinations, courts must give the agency’s decision controlling weight unlessit is “arbitrary, capricious, or manifestly contrary to the statute’” andthat, “[b]ecause this case involves that kind of express delegation, the [NLRB’s] views merit the greatest deference.”

Even if Plaintiff had exhausted his grievance procedures as Section 301 requires, any wrongful termination claim would necessarily be time-barred, as an action under Section 301 must be filed within six months of the date of the alleged breach of the collective bargaining agreement. 29 U.S.C. § 160(b). See Del Costello v. International Brotherhood of Teamsters, 462 U.S. 151, 155 (1983); Ghartey v. St. John's Queens Hospital, 869 F.2d 160, 166 (2nd Cir. 1989); Cook v. Lindsay Olive Growers, 911 F.2d 233, 237 (9th Cir. 1990).

Congress did not limit a court’s authority to tailor a preliminary injunction; instead, it provided courts with discretion to make determinations as they “deem[] just and proper.” 29 U.S.C. § 160(j). In several cases, other courts, as well as this Court, have weighed the equities and fashioned preliminary injunctions that did not provide the NLRB with every aspect of the relief it sought because we found that giving the NLRB everything would inequitably tilt bargaining against the employer and provide the Union a windfall or an unfair advantage in negotiations.

And a final order of the Board in an unfair labor practice case is subject to judicial review. See 29 U.S.C. §160(f). The Court in Sears held that documents relating to the General Counsel’s decision not to file a complaint constituted “precisely the kind of agency law” which “Congress sought to prevent the agency from keeping secret.”

18 Alternatively, relief can be sought under the National Labor Relations Act if a union engages in an unfair labor practice to coerce an employer to assign work to a particular union rather than to a competing union. 29 U.S.C. § 158 (b)(4)(D); 29 U.S.C. § 160(k). In the nonunion sector, workers are not organized by craft into local unions, so jurisdictional disputes do not exist.

Indeed, on the federal level, Congress has 41 long-recognized that the construction trades overlap, and it amended the National Labor Relations Act in 1947 to, inter alia, resolve disputes between competing crafts over work jurisdiction. See 29 U.S.C. § 158(b)(4)(D) (proscribing certain conduct by a union designed to pressure an employer to use its members to perform certain work instead of using the members of another union); see also 29 U.S.C. § 160(k) (empowering the National Labor Relations Board to hold hearings to resolve work jurisdiction disputes). In other words, it is commonplace in the construction industry that work jurisdiction among and between two or more crafts will overlap in some areas.

Indeed, the NLRB approval of the settlement and closure of the case is only reviewable at all if it was a final order of the actual Board. NLRB. v. United Food & Commercial Workers Union, Local 23, AFL-CIO, 484 U.S. 112, 133 (1987). If the decision is reviewable as a final order of the Board, Plaintiff may only obtain review in the Ninth or D.C. Circuit Court of Appeals. 29 U.S.C. § 160(f).

If the Board eventually deems the collective action waiver unenforceable, MUY will be permitted to appeal that decision to the U.S. Court of Appeals for the Fifth or Eleventh Circuit, as a matter of right." 29 U.S.C. § 160(f) ("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..."). Given the well-established precedent upholding collective action waivers in those circuits, a Board decision unfavorable to MUY would ultimately be reversed.