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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