Bally's Park Place, Inc. v. NLRB , 546 F.3d 318 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 6, 2008
No. 08-60593 Charles R. Fulbruge III
Summary Calendar Clerk
BALLY’S PARK PLACE INC, doing business as Bally’s Atlantic City
Petitioner
v.
NATIONAL LABOR RELATIONS BOARD
Respondent
On Petition for Review from an Order of the
National Labor Relations Board
Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
The United Automobile Workers filed an unfair labor practice charge
against Bally’s Park Place, a New Jersey casino operator. The National Labor
Relations Board granted summary judgment to the UAW. Bally’s timely
petitioned this court for review. The NLRB moved to dismiss for lack of
jurisdiction and improper venue. We agree and dismiss the appeal.
An important stage in this dispute was reached on April 11, 2007, when
the NLRB certified the UAW as the exclusive collective bargaining
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 08-60593
representative for certain Bally’s employees. In an effort to test the NLRB’s
certification, Bally’s refused to bargain with the UAW. In response, the UAW
filed an unfair labor practice charge. The NLRB entered a final order holding
that Bally’s had acted unlawfully. An appeal from such a final order is to the
court of appeals for the federal circuit where the challenged labor practice
occurred, or where the aggrieved party resides or transacts business:
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 labor practice in question was alleged to have been
engaged in or wherein such person resides or transacts business, or
in the United States Court of Appeals for the District of Columbia,
by filing in such court a written petition praying that the order of
the Board be modified or set aside.
29 U.S.C. § 160(f).
The issue on which we rule today is whether Bally’s may bring the appeal
to the Fifth Circuit. Bally’s concedes that it does not “reside” in Louisiana,
Mississippi, or Texas. Instead, Bally’s is incorporated in Delaware and operates
facilities only in New Jersey. The labor practice that is said to be unfair was not
committed in this Circuit. Thus, this court may accept the appeal only if Bally’s
“transacts business” within the Circuit.
There is no statutory definition of this phrase, “transacts business.” There
is little case law either, but we will discuss below what we find relevant among
the precedents. The starting premise for our review of the authorities is that
Section 160(f) is not a grant of universal jurisdiction. That conclusion is based
on nothing more than what we take to be self-evident, that had Congress wanted
no limits, there were straightforward ways to make that clear.
Whatever “transacts business” might mean in detail, the term is a focus
on contacts of a certain – though somewhat ambiguous – type within a federal
circuit. “Contacts” are not what have propelled Bally’s bringing the appeal here.
2
No. 08-60593
Since early in the dispute, Bally’s has admitted that the Fifth Circuit is its
preferred jurisdiction for review of the NLRB’s decision because one of our
precedents is said to be supportive of its position on the merits. See Marriott In-
Flite Servs., Div. of Marriott Corp. v. NLRB, 417 F.2d 563 (5th Cir. 1969).
Bally’s motives would not cancel a finding that the appeal was properly brought
should the statutory term“transacts business” be satisfied, but it is evident that
the case is not here because of physical convenience.
Bally’s primary argument is that it may borrow the contacts of its parent
corporation, Harrah’s Entertainment, Inc. Bally’s maintains that, as a wholly
owned subsidiary of Harrah’s, the two are part of an “interrelated network of
entertainment facilities.” Harrah’s certainly does transact business in the Fifth
Circuit. Among facilities that it operates in Louisiana and Mississippi are
Harrah’s New Orleans, Horseshoe Bossier City, Harrah’s Louisiana Downs,
Grand Casino Biloxi, Horseshoe Tunica, Grand Casino Tunica, and Sheraton
Casino & Hotel Tunica. However, the facts of Harrah’s activities do not justify
a finding that Bally’s transacts business in the Circuit.1 Other Circuits maintain
a distinction between parent corporations and their subsidiaries in applying the
NLRB judicial review provision. See, e.g., Rikal, Inc. v. NLRB, 721 F.2d 402, 404
(1st Cir. 1983) (a parent corporation who is not a named party in the NLRB’s
final order may not seek review in the court of appeals because the parent
corporation is not an “aggrieved party” under the Act); Pepsico, Inc. v. NLRB,
382 F.2d 265, 266-67 (6th Cir. 1967) (same). We agree with these precedents
and hold that only Bally’s corporate contacts are relevant, not Harrah’s.
1
Bally’s cites us to a precedent discussing citizenship for diversity. J.A. Olson Co. v.
City of Winona, 818 F.2d 401 (5th Cir. 1987). A subsidiary wanted its principal place of
business ignored and its parent corporation’s principal place of business imputed to it.
Choosing between possible places of citizenship is irrelevant here, but we also stated “that a
corporation may, through another entity or the alter ego doctrine, gain additional places of
citizenship.” Id. at 413-14 (emphasis in original). That case will not carry Bally’s where it
wants to go, because nothing in the record supports that Harrah’s is an alter ego of Bally’s.
3
No. 08-60593
Alternatively, Bally’s alleges that it transacts business in the Circuit in
the following ways: it profits financially from patrons who travel from the Fifth
Circuit to its New Jersey casinos; by mail solicitation and the Internet, Bally’s
advertises to Fifth Circuit customers; and it enters into business contracts with
Fifth Circuit residents because customers are permitted to make room
reservations via an on-line website. If such contacts were sufficient, though, the
statutory provision that we have found to create some limit to the number of
Circuits to which a particular appeal may be taken, would become no limitation
at all. More is required than these contacts.
Admittedly, there is a shortage of case law in this area. S.L. Indus., Inc.
v. NLRB, 673 F.2d 1, 2-3 (1st Cir. 1982) (noting that, “[u]nfortunately, there are
few cases precisely on point”); Farah Mfg. Co. v. NLRB, 481 F.2d 1143, 1145 (8th
Cir. 1973) (noting that “the scope of the phrase ‘transacts business’ has received
little judicial attention in reported labor decisions”). On occasion, however,
courts have sought to flesh out the “transacts business” requirement. For
instance, the Fourth Circuit conducted the following analysis:
Davlan’s contacts with the states embraced by this circuit may be
summarized briefly. It maintains sales representatives who solicit
business for the company in Maryland, Virginia, North Carolina,
and South Carolina, and it has purchased goods shipped from
establishments in Maryland. Davlan is under contract to supply
smoke grenades to a branch of the United States Army which is
located in Edgewood, Maryland. This contract - which constitutes
the lion’s share of Davlan’s business - has necessitated that Davlan
executives travel to Maryland, that Army personnel based in
Maryland give instructions to Davlan in St. Louis regarding the
particulars of the project, and that numerous telephone calls be
made between Maryland and St. Louis. Moreover, numerous
shipments of goods have been made between Davlan’s operations in
St. Louis and the Army facilities in Maryland.
****
[W]e hold that Davlan does not “transact business” in this circuit.
It has neither any permanent physical facility nor any employees
situated here. If the mere purchase and sale of goods, with its
4
No. 08-60593
attendant telephone and personal contacts - which fairly
characterizes all Davlan’s contacts with this circuit - suffices
without more as “transacting business,” we think the force of §
160(f) as a venue-limiting provision would be effectively eviscerated.
Davlan Eng’g, Inc. v. NLRB, 718 F.2d 102, 103 (4th Cir. 1983) (citations
omitted).
The principal precedent in our own Circuit is consistent with an analysis
requiring some sort of physical presence. In the case, a Connecticut gun
manufacturer sought review in the Fifth Circuit of an NLRB decision. Olin
Indus., Winchester Repeating Arms Co. Div. v. NLRB, 191 F.2d 613, 614 (5th Cir.
1951). Because the NLRB did not contest jurisdiction, we did not analyze the
issue but only noted that the manufacturer owned a warehouse in Texas. Id. at
613 n.1. Bally’s, however, maintains no physical presence in the Fifth Circuit.
We find this fact significant but need not decide if it is dispositive.
What is dispositive is there is nothing else to which Bally’s can point that
equates to business activities. Transacting business in the Circuit sufficient for
an appeal will require more than individuals’ within the Circuit connecting with
Bally’s through the commonplace and universal reach of modern technology.
We do not attempt to identify the precise contacts needed to satisfy the
Act’s judicial review provision. We hold that, on this appellate record, Bally’s
has not shown that it transacts business in the Fifth Circuit. A contrary
conclusion would allow almost any corporation to obtain judicial review of an
NLRB final order in any Circuit Court of Appeals. That is not what the review
statute permits. The NLRB’s motion to dismiss is therefore GRANTED.
5