National Labor Relations Board v. Kellogg Company
Filing
53
ORDER denying 21 Motion to Dismiss. Signed by Judge Samuel H. Mays, Jr on 6/23/2014.
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
M.KATHLEEN McKINNEY, Regional
Director of Region 15 of the
National Labor Relations Board,
for and on behalf of the
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
vs.
KELLOGG COMPANY,
Respondent.
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No. 14-2272
ORDER
Before
the
Court
is
Respondent
Kellogg
Company’s
(“Kellogg”) May 1, 2014 Motion to Dismiss for lack of subject
matter jurisdiction (the “Motion”).
(D.E. 21.)
M. Kathleen
McKinney (the “Petitioner”), Regional Director of Region 15 of
the National Labor Relations Board (the “Board”), responded on
May 12, 2014.
(D.E. 34.)
(D.E. 32.)
Kellogg replied on May 16, 2014.
For the following reasons, the Motion is DENIED.
Section 10(j) of the National Labor Relations Act (“NLRA”)
grants
the
Board
power
to
petition
a
district
court
for
“temporary relief or restraining order” against an employer the
Board has charged with engaging in an unfair labor practice.
U.S.C. § 160(j).
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Petitioner filed a § 10(j) petition in this
Court
on
April
15,
2014.
(D.E.
1.)
Kellogg
argues
that
Petitioner did not file a valid petition because Petitioner has
no
authority
over
the
Memphis
region.
The
gravamen
of
the
Motion is that the Board that consolidated the Memphis region
under
Petitioner’s
because
the
jurisdiction
Board
consisted
of
lacked
authority
members
to
unlawfully
under the President’s recess-appointment powers.
do
so
appointed
(Mot. at 3.)
The NLRA vests in the General Counsel of the Board “final
authority,
on
investigation
behalf
of
of
charges
the
Board,
section 160 of this title[.]”
Directors
who
file
General
Counsel’s
Manual,
Part
(January
1,
2011).
petitions
final
Unfair
In
respect
issuance
and
in
of
complaints
29 U.S.C. § 153(d).
may
act
authority.
Labor
of
only
See
Practice
exercising
that
to
the
Casehandling
Proceedings
authority,
under
Regional
pursuant
NLRB
the
§
10068.2
the
General
Counsel is not limited to delegating the filing of a petition to
a regional director over the region of the dispute.
See, e.g.,
Edward’s Restaurant, 305 NLRB 1097, 1097 (1992), enforced, 983
F.2d 1068 (6th Cir. 1992).
Thus, the issue is not whether the
Board validly consolidated the Memphis region under Petitioner’s
jurisdiction.
the
present
petition as an agent of the Board’s General Counsel.
See §
153(d).
Petitioner
had
authority
The Court has jurisdiction.
2
to
file
For the foregoing reasons, Kellogg’s Motion to Dismiss is
DENIED.
So ordered this 23rd day of June, 2014.
s/ Samuel H. Mays, Jr.___ _
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE
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