Board of Trustees of the National Roofing Industry Pension Fund v. A.W. Farrell & Son, Inc.

Filing 21

ORDER Denying 9 Motion to Dismiss for Lack of Jurisdiction without prejudice. Signed by Judge James C. Mahan on 2/6/14. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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BOARD OF TRUSTEES OF THE
NATIONAL ROOFING INDUSTRY
PENSION FUND, et al.,

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2:13-CV-825 JCM (VCF)

Plaintiff(s),

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v.

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A.W. FARRELL & SON, INC.,

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Defendant(s).

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ORDER

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Presently before the court is defendant A.W. Farrell & Son, Inc.’s (“Farrell”) motion to

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dismiss. (Doc. # 9). Plaintiffs Board of Trustees of the National Roofers Union and Employers Joint

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Health and Welfare Fund have filed a response (doc. # 13) and Farrell has filed a reply (doc. # 14).

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I.

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Background
This matter involves a collective bargaining dispute under section 502 of the Employee

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Retirement Income Security Act, 29 U.S.C. § 1132, and section 301 of the Labor Management

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Relations Act, 29 U.S.C. § 185.

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Plaintiffs, who are pension, health, and welfare fund trustees for United Union of Roofers,

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Waterproofers, and Allied Workers Local 162 (“Local 162”), allege that Farrell breached its

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obligation under a collective bargaining agreement to make contributions and participate in a fund

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audit from 2006 to the present. Farrell concedes that it had a collective bargaining agreement with

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James C. Mahan
U.S. District Judge

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Local 162 from 2006 to July 31, 2010, but denies that it had a collective bargaining agreement with

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Local 162 from August 1, 2010, to present.

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Before plaintiffs filed their complaint in this matter, Local 162 filed an unfair labor practice

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charge against Farrell with the National Labor Relations Board (“NLRB”). See A.W. Farrell & Son,

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Inc., 28- CA-023502, 28-CA-060627, and 28-CA-062301. The same question that is at issue in this

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matter—namely, whether Farrell had a collective bargaining agreement with Local 162 from August

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1, 2010, to present—was litigated by Local 162 before the NLRB. Id.

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On December 28, 2011, Administrative Law Judge Lana Parke ruled that Farrell did not have

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an agreement with Local 162. Id. Local 162 appealed to the NLRB, which reversed Judge Parke’s

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decision and held that Farrell did have an agreement with Local 162 from August 1, 2010, to the

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present. See A.W. Farrell & Son, Inc., 359 NLRB No. 154 (July 11, 2013). Before the NLRB

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overturned Judge Parke’s decision, plaintiffs filed suit in this court.

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Farrell has filed the instant motion to dismiss, arguing that this court does not have subject

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matter jurisdiction to hear this case. (Doc. # 9) (citing Laborers Health & Welfare Trust Fund for

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N. Cal. v. Advanced Lightweight Concrete Co., Inc., 484 U.S. 539, 549–51 (1988)).

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II.

Legal Standard

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Fed. R. Civ. P. 12(b)(1) permits a party to assert, by motion, as a defense to a claim for relief

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the absence of subject matter jurisdiction. When presented as a factual challenge, a Rule 12(b)(1)

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motion can be supported by affidavits or other evidence outside of the pleadings. United States v.

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LSL Biotechs, 379 F.3d 672, 700 n. 14 (9th Cir. 2004) (citing St Clair v. City of Chicago, 880 F.2d

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199, 201 (9th Cir. 1989)).

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“A plaintiff suing in federal court must show in his pleading, affirmatively and distinctly, the

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existence of whatever is essential to federal jurisdiction, and, if he does not do so, the court, on

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having the defect called to its attention or on discovering the same, must dismiss the case.” Tosco

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Corp. v. Communities for a Better Env’t, 236 F.3d 495, 499 (9th Cir. 2001).

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James C. Mahan
U.S. District Judge

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III.

Discussion

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The NLRB reversed Judge Parke’s decision some time between the filing of the instant

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motion to dismiss and the filing of plaintiffs’ response. In addition to requesting a stay in its reply

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in support of the motion to dismiss, Farrell filed a separate motion requesting this action be stayed

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until the U.S. Supreme Court reviews Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013), cert.

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granted, 81 U.S.L.W. 3629 (U.S. June 24, 2013) (No. 12-1281).

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In Noel Canning, the D.C. Circuit held that the same board that reversed Judge Parke’s

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decision lacked a properly constituted quorum under 29 U.S.C. § 160. That court found that

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President Obama’s January 4, 2012, recess appointments to the board violated the executive’s

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appointment power under Article II, Section II, Clause 3 of the U.S. Constitution. Noel Canning,

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705 F.3d at 490. Relying on that appeal, Farrell asked the court to stay this action until the U.S.

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Supreme Court decides whether the board’s decision was valid. The magistrate judge appropriately

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declined to do so. (See doc. # 20).

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Under the law as it stands today, Farrell and Local 162 are bound to a collective bargaining

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agreement. See A.W. Farrell & Son, Inc., 359 NLRB No. 154 (July 11, 2013). Although Farrell

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appealed the board’s decision, and although Farrell argues here that it was not bound to a CBA after

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July 31, 2010, the board’s decision remains law. See 29 U.S.C. § 160(f), (g) (providing that an

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appeal of the board’s decision “shall not. . .operate as a stay of the board’s order.”).

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Because Farrell’s motion to dismiss is entirely premised upon the NLRB’s initial decision,

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which has since been overruled, Farrell has failed to establish this court lacks jurisdiction to hear

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these claims.

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IV.

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Conclusion
As the law stands now, plaintiff has sufficiently stated a claim upon which relief can be

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granted. Defendant’s motion to dismiss is denied.

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James C. Mahan
U.S. District Judge

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, and DECREED that defendant’s motion to

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dismiss (doc. # 9) be, and the same hereby is, DENIED without prejudice.
DATED February 6, 2014.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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