MARCUS, Circuit Judge:
Martin Mulhall ("Mulhall"), an employee at the Hollywood Greyhound Track, Inc., d/b/a Mardi Gras Gaming ("Mardi Gras"), appeals from the district court's dismissal of his complaint against Mardi Gras and UNITE HERE Local 355 ("Unite"), a labor union, for violations of § 302 of the Labor Management Relations Act ("LMRA"). Mulhall sued Unite and Mardi Gras to enjoin enforcement of a Memorandum of Agreement ("MOA"), whereby Unite agreed to spend money in support of Mardi Gras' public campaign to obtain a gaming license, in exchange for Mardi Gras' assistance in making Unite the exclusive bargaining agent for Mardi Gras' currently non-unionized workforce. Appellant Mulhall, who vigorously opposes being unionized, claims that the organizing assistance promised by Mardi Gras violates § 302 of the LMRA, which makes it illegal for an employer to deliver, or for a union to receive, any
Mulhall's grievance stems from a Memorandum of Agreement concluded between Mardi Gras and Unite on August 23, 2004. The substance of the agreement was as follows. The local union, Unite, promised to lend financial support to a ballot initiative regarding casino gaming that would benefit Mardi Gras, and, if recognized as the exclusive bargaining agent for Mardi Gras' employees, to refrain from picketing, boycotting, striking, or undertaking "other economic activity" against Mardi Gras.
Pursuant to the MOA, Unite spent over $100,000 campaigning for the gaming-related ballot initiative favored by Mardi Gras. Thereafter, in May and July 2008, Unite sent Mardi Gras written notices of its intent to organize Mardi Gras' employees, and demanded that Mardi Gras provide the organizing assistance promised in the MOA. Mardi Gras, however, refused to provide the assistance, claiming, with the advice of new legal counsel, that the MOA was illegal and unenforceable.
Unite responded in late September 2008 by filing a petition to compel arbitration, pursuant to the MOA's arbitration clause, in the United States District Court for the Southern District of Florida. See Unite HERE Local 355 v. Hollywood Greyhound Track, Inc., Case No. 08-61655-PAS (S.D.Fla.2008).
On April 15, 2009, the district court entered an order compelling arbitration of the parties' dispute, including Mardi Gras' claim that the MOA was unenforceable. The matter was arbitrated, and on August 6, 2009, an arbitrator returned a ruling in favor of Unite, finding the MOA enforceable and requiring Mardi Gras to provide the requested organizing assistance. Mardi Gras then moved the district court to vacate the award, and Unite moved to confirm it. See Hollywood Greyhound Race Track, Inc. v. Unite HERE Local 355, Case No. 09-61760-WJZ (S.D.Fla. 2009). The district court denied Mardi Gras' motion and confirmed the award in most material respects. The court granted Mardi Gras' motion to vacate the award only insofar as the arbitrator had unilaterally extended the terms of the MOA by one year, apparently as an equitable remedy for Mardi Gras' breach in failing to provide the contractually promised organizing assistance. See Hollywood Greyhound Race Track, Inc. v. Unite HERE Local 355, Case No. 09-61760-Zloch (S.D.Fla.2009) (Order granting in part and denying in part motions to vacate and to confirm arbitration award, at 6).
All the while, Mulhall was pursuing his own effort to block enforcement of what he characterized as an illegal and collusive arrangement between a union and an employer. Not long after Mardi Gras filed its counterclaim for declaratory relief, Mulhall filed his own action (the instant case) seeking an injunction pursuant to § 302(e) of the LMRA, 29 U.S.C. § 186(e), claiming that the MOA violated § 302(a)-(b) of the statute. On April 22, 2009, one week after ordering Mardi Gras and Unite to arbitrate the validity of the MOA, the district court dismissed Mulhall's complaint for lack of standing, holding that he had failed to show an injury-in-fact that was "actual or imminent," since it was possible that he would never be unionized even if Unite
Mulhall timely filed this appeal, claiming to have both Article III and prudential standing to seek to enjoin the MOA pursuant to § 302. Unite disagrees, and also says that Mulhall's claim is not ripe for review because Mardi Gras has refused to provide organizing assistance, and may never do so.
We consider first whether Mulhall has Article III standing. As the party invoking federal jurisdiction, Mulhall bears the burden of demonstrating his standing to sue. Pittman v. Cole, 267 F.3d 1269, 1282 (11th Cir.2001). To do so, he must show that: (1) he has suffered, or imminently will suffer, an injury-in-fact; (2) the injury is fairly traceable to the defendants' conduct; and (3) a favorable judgment is likely to redress the injury. Harrell v. The Florida Bar, 608 F.3d 1241, 1253 (11th Cir.2010). "At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we `presum[e] that general allegations embrace those specific facts that are necessary to support the claim.'" Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (quoting Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 889, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)).
To demonstrate an injury-in-fact, Mulhall is required to show that he has a legally cognizable interest that has been or is imminently at risk of being invaded. Lujan, 504 U.S. at 560, 112 S.Ct. 2130. This requirement merely ensures that Mulhall, like any plaintiff, "has `alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues.'" Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968) (quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)). Importantly, therefore, the relevant question is not whether Mulhall has a legal right to be free from involuntary unionization, or is legally entitled to enjoin the MOA. "[S]tanding in no way depends on the merits of the plaintiff's contention that particular conduct is illegal," Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); it "focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated," Flast, 392 U.S. at 99, 88 S.Ct. 1942. At issue today is only whether Mulhall has a stake in this controversy that is real enough and concrete enough to entitle him to be heard in a federal district court concerning his § 302 claim, nothing more.
Mulhall has a cognizable associational interest under the First Amendment to challenge the alleged collusive arrangement between the employer and the
Abood v. Detroit Bd. of Ed., 431 U.S. 209, 222, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977). Thus, it has long been recognized that such "association for the purpose of advancing economic, as well as political or religious, interests falls within the protection of the First Amendment." Scott v. Moore, 680 F.2d 979, 990 (5th Cir.1982) (en banc), rev'd on other grounds sub nom. United Bhd. of Carpenters & Joiners of Am., Local 610, AFL-CIO v. Scott, 463 U.S. 825, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983) (citing Bhd. of R.R. Trainmen v. Virginia, 377 U.S. 1, 8, 84 S.Ct. 1113, 12 L.Ed.2d 89 (1964), Thomas v. Collins, 323 U.S. 516, 531, 65 S.Ct. 315, 89 L.Ed. 430 (1945), and Abood, 431 U.S. at 222, 97 S.Ct. 1782).
Just as "[t]he First Amendment clearly guarantees the right to join a union," Hobbs v. Hawkins, 968 F.2d 471, 482 (5th Cir.1992) (citing Thomas, 323 U.S. at 532, 65 S.Ct. 315), it "presupposes a freedom not to associate" with a union, Roberts v. U.S. Jaycees, 468 U.S. 609, 623, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984) (citing Abood, 431 U.S. at 234-235, 97 S.Ct. 1782). This freedom of course may be outweighed by other important governmental interests, such as the promotion of productive labor-management relations. In this instance, for example, although the federally-created right of a majority-favored union to supersede an employee's direct bargaining relationship with his employer amounts to "compulsory association," Acevedo-Delgado v. Rivera, 292 F.3d 37, 42 (1st Cir.2002), that compulsion "has been sanctioned as a permissible burden on employees' free association rights," id., based on a legislative judgment that collective bargaining is crucial to labor peace, Abood, 431 U.S. at 224, 97 S.Ct. 1782.
The relevant point here, however, is that employees like Mulhall have such an associational interest. See Scott, 680 F.2d at 990 (holding that First Amendment interests of nonunion employees to
Mulhall has also adequately alleged that this associational interest is at imminent risk of invasion, because Mardi Gras' provision of considerable and varied organizing assistance pursuant to the MOA will substantially increase the likelihood that Mulhall will be unionized against his will. Under controlling law, a plaintiff faces an "imminent" harm when there is "a realistic danger of sustaining a direct injury as a result" of the challenged action. Fla. State Conf. of NAACP v. Browning, 522 F.3d 1153, 1161 (11th Cir.2008) (quoting Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979)). "How likely is enough is necessarily a qualitative judgment," id., but, under our law, "probabilistic harm is enough injury in fact to confer standing in the undemanding Article III sense," id. at 1163 (citation and alteration omitted).
Mulhall has adequately alleged that the organizing assistance promised by Mardi Gras in the MOA is valuable, and indeed essential, to Unite's effort to gain recognition. As an initial matter, the complaint says that the provision of lists showing the classifications, departments, and home addresses of Mardi Gras' employees "permits Local 355 to target employees during organizing campaigns and send union organizers to employees' homes," Complaint ¶ 17(b); that access to Mardi Gras' facilities, including "non-public areas of the gaming facility" during non-working hours, "is objectively useful to Local 355 for organizing nonunion employees," id. ¶ 20(b); that the neutrality agreement is also useful to Local 355 because, among other things, it silences potentially persuasive opponents of unionization within the company, including all managers and supervisors who otherwise might discuss the disadvantages of unionization, id. ¶ 25(b); and that Mardi Gras' waiver of its right to demand a secret, NLRB-conducted election, Complaint, ¶ 10(a) — a method which has "acknowledged superiority in ascertaining whether a union has majority support," Linden Lumber Division, Summer & Co. v. NLRB, 419 U.S. 301, 304, 95 S.Ct. 429, 42 L.Ed.2d 465 (1974) — similarly figured into the quid pro quo exchange with Unite, id. ¶ 11.
The complaint in this case, moreover, highlights Unite's own belief that the employer's organizing assistance is essential to its effort to gain majority status. The complaint contains the following quotation from Unite's own allegations in parallel litigation:
Complaint ¶ 27 (quoting Unite HERE Local 355 v. Hollywood Greyhound Track, Inc., Case No. 08-61655-PAS (S.D.Fla.) (Complaint ¶ 11)). Also noteworthy, of course, is the consideration Unite offered for the organizing assistance: it promised not to "picket, boycott, strike, or take other economic action against Mardi Gras," and that it would "expend monetary and other resources" to support a ballot proposition favored by Mardi Gras. Id. ¶ 11. Unite ultimately spent $100,000 on the initiative campaign, suggesting that the organizing assistance it bargained for was significant in a monetary sense.
Taken together, the allegations in Mulhall's complaint yield a strong inference that the organizing assistance is a critical ingredient for Unite's success, and that, if provided, it will substantially increase the likelihood that Mulhall will be unionized against his will. That "probabilistic harm" is a cognizable injury for purposes of standing. Browning, 522 F.3d at 1163.
Finally, Mulhall's allegations satisfy the redressability requirement. "Redressability is established ... when a favorable decision `would amount to a significant increase in the likelihood that the plaintiff would obtain relief that directly redresses the injury suffered.'" Harrell, 608 F.3d at 1260 n. 7 (citation omitted). If Mulhall obtains a judgment enjoining enforcement of the MOA, the substantial increase in the risk of unionization attributable to the MOA will have been eliminated.
Unite Local 355 also appears to suggest that Mulhall's claim is barred by the prudential standing doctrine, which comprises three non-constitutional, non-jurisdictional, policy-based limitations on the availability of judicial review. Am. Iron and Steel Inst. v. OSHA, 182 F.3d 1261, 1274 n. 10 (11th Cir.1999). The doctrine requires (1) that the plaintiff's complaint fall within the "zone of interests" protected by the statute or constitutional provision at issue; (2) that the complaint not require the court to pass on abstract questions or generalized grievances better addressed by the legislative branches; and (3) that the plaintiff assert his or her own legal rights and interests rather than the legal rights and interests of third parties. Harris v. Evans, 20 F.3d 1118, 1121 (11th Cir.1994) (en banc). Mulhall easily satisfies the second and third requirements. The only real dispute here is whether Mulhall meets the "zone-of-interests" test, which limits judicial review to claims of injury that are sufficiently related to the core concerns of a given statute.
The zone-of-interests test "does not require the plaintiff to show an identifiable `legal interest' that may entitle him to relief." Church of Scientology Flag Serv. Org., Inc. v. City of Clearwater, 2 F.3d 1514, 1526 (11th Cir.1993) (quoting Ass'n of Data Processing Serv. Orgs., Inc. v. Camp ("ADAPSO"), 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970)). Rather, the plaintiff need only show "that the relationship between [his] alleged interest and the purposes implicit in the substantive provision [is] more than `marginal[],'" City of Clearwater, 2 F.3d at 1526 (quoting Clarke v. Sec. Indus. Ass'n, 479 U.S. 388, 399, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987)). See also ADAPSO, 397 U.S. at 153, 90 S.Ct. 827.
The relationship between Mulhall's alleged interest and the purposes of § 302 is more than "marginal." Section 302 is "a conflict-of-interest statute," United States v. Browne, 505 F.3d 1229, 1248 (11th Cir.2007); it bans the exchange of anything of value between a union and an employer, subject to a strictly limited set of exceptions, see 29 U.S.C. § 186(a)-(c). Its purpose is to "protect employees in dealings between the union and employer," Jackson Purchase Rural Elec. Coop. Ass'n v. Local Union 816, Int'l Bhd. of Elec. Workers, 646 F.2d 264, 267 (6th Cir.1981), and specifically to protect them "from the collusion of union officials and management," Mosley v. Nat'l Maritime Union Pension and Welfare Plan, 438 F.Supp. 413, 421 (E.D.N.Y.1977). Indeed, the legislative history of § 302 demonstrates that the provision was intended to "prohibit[ ], among other things, the buying and selling
In sum, Mulhall has adequately pleaded facts supporting Article III standing, and his claim raises no prudential standing concerns.
Unite next argues that Mulhall's claim is not ripe, because his alleged injury is contingent on the outcome of Mardi Gras' own lawsuit against Unite to void the MOA. Specifically, Unite suggests that Mardi Gras' lawsuit, if successful, would shield Mulhall from the agreement's allegedly illegal effects, and from the concomitant increase in the likelihood of unionization. We remain unpersuaded.
The ripeness doctrine is one of the several "strands of justiciability doctrine... that go to the heart of the Article III case or controversy requirement." Harrell, 608 F.3d at 1246 (quotation marks and citation omitted). While standing concerns the identity of the plaintiff and asks whether he may appropriately bring suit, ripeness concerns the timing of the suit. Id. at 1261. The function of the ripeness doctrine is to "protect[] federal courts from engaging in speculation or wasting their resources through the review of potential or abstract disputes." Id. at 1257-58 (citation and quotation marks omitted). "To determine whether a claim is ripe, we assess both the fitness of the issues for judicial decision and the hardship to the parties of withholding judicial review." Id. at 1258 (emphasis omitted). "The fitness prong is typically concerned with questions of `finality, definiteness, and the extent to which resolution of the challenge depends upon facts that may not yet be sufficiently developed.'" Id. (citation and quotation marks omitted). "The hardship prong asks about the costs to the complaining party of delaying review until conditions for deciding the controversy are ideal." Id.
Unite's argument, which goes to the "fitness" prong of the ripeness inquiry, has some appeal, for it is generally true that the existence of contingencies raises fitness concerns that "militat[e] in favor of postpon[ing]" review. Id. at 1263 (quoting AT&T Corp. v. FCC, 349 F.3d 692, 700 (D.C.Cir.2003)). Specifically, if a plaintiff's claimed injury depends on the resolution of other judicial proceedings, there may well be fitness concerns that render the plaintiff's claim presumptively unripe. See, e.g., In re Lowenschuss, 170 F.3d 923, 932 (9th Cir.1999) (holding that claim in bankruptcy dependent on judgment in parallel proceedings in New Jersey was unripe, where Third Circuit had not yet ruled on an appeal); Lincoln House, Inc. v. Dupre, 903 F.2d 845 (1st Cir.1990).
Yet, to determine whether a future contingency creates fitness (and ultimately ripeness) concerns, a court must assess the likelihood that a contingent
In this case, it is extremely unlikely that Mardi Gras' parallel litigation, in its present posture, will deprive Mulhall of an injury. As recounted above, the district court granted Unite's motion to compel arbitration of the dispute over the validity of the MOA, and the arbitrator rendered a judgment in favor of Unite. Mardi Gras moved to vacate the award, but the district court confirmed the award in all respects but one. Thus, despite its long-standing unwillingness to comply with the disputed provisions of the MOA, Mardi Gras is now under compulsion of the law to do just that.
We can divine only one theoretical scenario in which Mulhall could be deprived of an injury at this point, namely, if Mardi Gras appealed the district court's order confirming the arbitration award, obtained a stay of the district court's judgment pending appeal, and prevailed on appeal. But that scenario is a decidedly remote possibility under the circumstances, because Mardi Gras is very unlikely to succeed in an appeal of the judgment confirming the arbitration award. The Federal Arbitration Act authorizes a federal court to vacate an arbitral award in only four instances:
9 U.S.C. § 10(a); Frazier v. CitiFinancial Corp., LLC, 604 F.3d 1313, 1321, 1324 (11th Cir.2010) (holding that statutory grounds for vacatur are exclusive). Aside from its claim that the arbitrator exceeded his authority by extending the term of the MOA for one year — a claim upon which the district court granted relief — Mardi Gras never argued that the arbitral award was subject to vacatur on any of the enumerated statutory grounds.
Furthermore, although Mardi Gras might argue on appeal that the validity of the MOA should not have been arbitrated in the first instance, Mardi Gras is very unlikely to prevail on that claim, either. As the district court observed in granting Unite's motion to compel arbitration, federal law required arbitration of the subject dispute, pursuant to the MOA's arbitration clause, "unless it [could] be said with positive assurance that the arbitration clause [was] not susceptible of an interpretation that cover[ed] the asserted dispute," with any doubts about arbitrability resolved "in favor of coverage." AT & T Techs. v. Commc'ns Workers of Am., 475 U.S. 643, 650, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (citations omitted). The clause at issue here broadly covered "any disputes over
It is also exceedingly unlikely that Mardi Gras could successfully obtain a stay of the district court's judgment confirming the arbitral award pending appeal. To be sure, a stay is theoretically (and procedurally) possible: "[a]rbitration awards are not self-enforcing, [but] ... must be given force and effect by being converted to judicial orders" on an appropriate motion to confirm or vacate, D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 104 (2d Cir.2006) (internal quotation marks omitted), and a district court may enter a stay of any judgment pending an appeal, see Fed.R.Civ.P. 62, including a judgment upon an order confirming or vacating an arbitral award. Yet, in ruling on a requested stay, the district court first would have to assess the appellant's likelihood of success on appeal. See Venus Lines Agency v. CVG Industria Venezolana De Aluminio, C.A., 210 F.3d 1309, 1313-14 (11th Cir.2000).
In short, the contingency, if any, occasioned by Mardi Gras' parallel litigation to void the MOA is very remote. Thus, Mulhall's claim raises no substantial fitness concerns. And, "`[w]here ... there are no significant agency or judicial interests militating in favor of delay, [lack of] "hardship" cannot tip the balance against judicial review.'" Harrell, 608 F.3d at 1259 (quoting Consol. Rail Corp. v. United States, 896 F.2d 574, 577 (D.C.Cir. 1990)). Accordingly, Mulhall's claim is ripe for review, too.
Beyond the issues of standing and ripeness, the parties have extensively briefed the merits question of whether § 302 provides a claimant like Mulhall with a private right of action, as well as the question of whether the organizing assistance specified in the MOA actually violates § 302 of the LMRA. Neither question, however, is properly before us on review of the district court's order dismissing this action for lack of subject-matter jurisdiction.
The existence of a private right of action is an issue "separate and distinct" from the issue of standing, The Wilderness Society v. Kane County, Utah, 581 F.3d 1198, 1215 (10th Cir.2009), and "is not jurisdictional," Northwest Airlines, Inc. v. County of Kent, Mich., 510 U.S. 355, 365, 114 S.Ct. 855, 127 L.Ed.2d 183 (1994). See also Air Courier Conference of Am. v. Am. Postal Workers Union, AFL-CIO, 498 U.S. 517, 523, n. 3, 111 S.Ct. 913, 112 L.Ed.2d 1125 (1991). Although the district court mentioned in passing that § 302 provides a private right of action, Mulhall v. Unite HERE Local 355, et al., No. 08-61766-PAS (S.D. Fla. April 22, 2009) (Order granting motion to dismiss, at 3), and although the Supreme Court has observed in dicta that § 302(e) "expressly permit[s] suits for injunctions ... to be brought in the federal courts by private litigants," Sinclair Ref. Co. v. Atkinson, 370 U.S. 195,
Similarly, the question of whether the disputed organizing assistance is a "thing of value," whose provision by Mardi Gras or acceptance by Unite would violate § 302, is beyond the scope of this appeal. "[S]tanding in no way depends on the merits of the plaintiff's contention that particular conduct is illegal." Warth, 422 U.S. at 500, 95 S.Ct. 2197. The merits will be for the district court to decide on remand.
In sum, we conclude that Mulhall has constitutional and prudential standing to maintain his claim for injunctive relief under § 302 of the Labor Relations Management Act, and that his claim is ripe for review. Accordingly, we reverse the district court's order and judgment of dismissal and remand the case for further proceedings consistent with this opinion.
REVERSED AND REMANDED.