UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 06-2127



FRED ASHLEY; RANDY      FOWLER;   HENRY   JUAREZ;
ANDREW TURNER,

                                             Plaintiffs - Appellants,

           versus


NATIONAL LABOR RELATIONS BOARD; ROBERT J.
BATTISTA, In his official capacity as Chairman
of the National Labor Relations Board; PETER
C. SCHAUMBER, In his official capacity as a
member of the National Labor Relations Board;
WILMA B. LIEBMAN, In her official capacity as
a member of the National Labor Relations
Board; PETER N. KIRSANOW, In his official
capacity as a member of the National Labor
Relations Board; DENNIS P. WALSH, In his
official capacity as a member of the National
Labor Relations Board; WILLIE L. CLARK, JR.,
In his official capacity as the Regional
Director of the Eleventh Region of the
National Labor Relations Board,

                                              Defendants - Appellees.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Senior
District Judge. (1:06-cv-00316-WLO-PT)


Argued:   October 30, 2007                Decided:   November 20, 2007


Before MICHAEL, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.


ARGUED: William L. Messenger, NATIONAL RIGHT TO WORK LEGAL
FOUNDATION, Springfield, Virginia, for Appellants.        Kye D.
Pawlenko, Office of the General Counsel, NATIONAL LABOR RELATIONS
BOARD, Washington, D.C., for Appellees. ON BRIEF: Philip M. Van
Hoy, Stephen Dunn, VAN HOY, REUTLINGER, ADAMS & DUNN, Charlotte,
North Carolina, for Appellants. Ronald Meisburg, General Counsel,
John E. Higgins, Jr., Deputy General Counsel, John H. Ferguson,
Associate General Counsel, Margery E. Lieber, Deputy Associate
General Counsel, Eric G. Moskowitz, Assistant General Counsel,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Appellees.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

     Plaintiffs Fred Ashley, Randy Fowler, Henry Juarez, and Andrew

Turner (collectively, Plaintiffs) bring this action against the

National Labor Relations Board (NLRB or Board).          Plaintiffs allege

that when the Board certified the International Union, United

Automobile and Agricultural Implement Workers of America (UAW) as

their exclusive bargaining representative without entertaining

their objections during the certification proceeding, the Board

deprived them of their liberty and property interests without due

process of law, in violation of the Fifth Amendment.             The district

court granted the Board’s motion to dismiss for lack of standing

and subject matter jurisdiction.         We affirm, albeit on somewhat

different grounds.



                                    I.

     Plaintiffs are employees of Thomas Built Buses, Inc. (TBB).

TBB has a relationship with UAW that the district court described

as “interesting” -- it appears that for some time, TBB has been

assisting UAW in its organizing efforts at the TBB plant.

     In   June   2005,   UAW   requested   that    the    NLRB    conduct    a

certification election at the TBB plant, in which TBB employees

would vote to determine whether UAW would become the exclusive

representative   of   the   TBB   employees.      One   day   prior   to    the

election, TBB circulated a memorandum that implied that non-union


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employees would soon be subject to higher benefit costs.             On the

day of the election, UAW recirculated the original memorandum, with

the addition of the headline “DID YOU SEE THIS? THE COST OF BEING

NON-UNION JUST WENT UP!”      After the election, the unofficial tally

was 714 in favor of UAW and 504 opposed.

     Plaintiffs argue that TBB’s circulation of the benefits change

memorandum one day prior to the election constitutes objectionable

conduct   and    provides   grounds   for   setting   aside   the   election

results. After the election, Plaintiffs sought to intervene in the

representation proceeding before the NLRB through which the Board

would officially certify UAW as the representative of the TBB

employees.      Plaintiffs also filed objections to the certification

with the NLRB’s Regional Director.          But Plaintiffs did not file a

charge alleging that TBB or UAW engaged in unfair labor practices.

The NLRB denied Plaintiffs’s motion to intervene, refused to

consider the objections filed with the Regional Director, and

certified UAW as the exclusive bargaining representative of TBB.

     Instead of filing an unfair labor practices charge against TBB

and/or UAW, Plaintiffs brought this action against the NLRB,

claiming that the Board’s certification of UAW as their exclusive

representative deprived them of protected liberty and property

interests without due process of law, in violation of the Fifth

Amendment.       The district court granted the Board’s motion to




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dismiss,      finding       a    lack   of    standing      and    no     subject        matter

jurisdiction.         Plaintiffs appeal.



                                              II.

       The National Labor Relations Act (NLRA, or Act) empowers the

Board    to     investigate        questions        of   representation           and,    where

necessary, to direct elections by secret ballot and to certify the

results of such elections.              29 U.S.C.A. § 159(c) (West 1998 & Supp.

2007).    The typical parties to a representation proceeding are the

employer and the union, and the Board does not normally allow

individual employees to intervene in representation proceedings.

See     NLRB,     Casehandling           Manual,         Part     Two,       Representation

Proceedings             §         11194.4           (2007),            available            at

http://www.nlrb.gov/Publications/Manuals.                         It    is    unsurprising,

then, that the Board denied Plaintiffs’s motion to intervene in the

representation proceeding.

        The NLRA also empowers the Board to prevent any person or

entity    from    engaging        in    any   unfair      labor    practice        affecting

commerce.         29    U.S.C.A.        §§    152(1),      160(a).           An   employer’s

contribution of support to a labor organization constitutes an

unfair labor practice within the meaning of the Act.                                

see also ILGWU v. NLRB, 

, 738 (1961).                              Thus,

in    this    case,    if       TBB’s   circulation        of   the      benefits        change

memorandum constitutes a “contribution of support” to UAW, then


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TBB’s   actions    fall    within    the       definition    of   an   unfair    labor

practice.

      Moreover, “any person,” not just an employer or union, may

file a charge alleging that a person or entity has engaged in

unfair labor practices.         29 C.F.R. § 102.9.          The General Counsel of

the Board has the final authority to decide whether to pursue the

investigation of a charge and initiate the adjudication of a

complaint under section 160 of the Act, 29 U.S.C.A. § 153(d); see

also NLRB v. United Food & Commercial Workers, 

(1987).

The Board adjudicates the merits of unfair labor practice charges

brought by the General Counsel.            29 U.S.C.A. § 160(b)-(d).             If the

Board finds that an employer or union has committed an unfair labor

practice, it may issue a final order setting aside its previous

certification of a union.           See Lunardi-Central Distributing Co.,

161   NLRB   No.   126    at   1444-45     (1966).     Any     party    to   a   Board

proceeding aggrieved by this final order may obtain review of the

order in the courts of appeals.            29 U.S.C.A. § 160(f).

      Therefore, in the case at hand, Plaintiffs could have filed an

unfair labor practices charge with the Board.                      If the General

Counsel initiated the adjudication of charges, the Board could have

held that TBB or UAW committed unfair labor practices and set aside

its previous certification of UAW as the exclusive representative

of the TBB employees.          Alternatively, if the Board held that no




                                           6
unfair labor practice had been committed, the Plaintiffs could have

appealed the Board’s final decision to this court.

      Plaintiffs,      however,     chose   not   to    file    an   unfair    labor

practices charge with the Board.            Instead, Plaintiffs ask us to

declare that the process that the NLRA establishes to address

unfair    labor     practices   violates     their     constitutional      rights,

despite the fact that they failed to pursue this process.                     As our

sister courts have repeatedly held, a plaintiff may not bypass a

seemingly adequate administrative process and then complain of that

process’s constitutional inadequacy in federal court.                   See, e.g.,

Farhat v. Jopke, 

, 596 (6th Cir. 2004); Santana v. City

of   Tulsa,   

,    1244   (10th      Cir.    2004);   Krentz    v.

Robertson, 

, 904 (8th Cir. 2000); Alvin v. Suzuki, 

, 116 (3d Cir. 2000); Cotton v. Jackson, 

,

1331 (11th Cir. 2000); Rathjen v. Litchfield, 

, 840

(5th Cir. 1989); Dusanek v. Hannon, 

, 543 (7th Cir.

1982).1

      Even assuming that Plaintiffs have suffered the deprivation of

a constitutionally protected liberty or property interest, which is

not at all clear, their failure to avail themselves of their right

to file an unfair labor practices charge means that they have



      1
      Some of these cases deal with state, rather than
administrative, procedures; however, the principle that a plaintiff
may not complain of procedures he or she has not pursued is the
same.

                                        7
failed to state a due process claim.   As Judge Becker explained in

Alvin, “to state a claim for failure to provide due process, a

plaintiff must have taken advantage of the processes that are

available to him or her, unless those processes are unavailable or

patently 

.   This is so because a due

process violation “is not complete” when the asserted deprivation

occurs; rather it is only complete when the government “fails to

provide due process.” Zinermon v. Burch, 

, 126 (1990).

Accordingly, where “there is a process on the books that appears to

provide due process, the plaintiff cannot skip that process and use

the federal courts as a means to get back what he wants.”   

.     As in Alvin, here “a procedural due process

violation cannot have occurred” because “the governmental actor

provides apparently adequate procedural remedies and the plaintiff

has not availed himself of those remedies.”   

U.S. at 126).2




     2
      Mathews v. Eldridge, 

(1976), on which Plaintiffs
heavily rely, involves an entirely different statutory scheme, not
governing asserted employment rights, but entitlement to social
security benefits. Eldridge “raised at least a colorable claim
that because of his physical condition and dependency upon the
disability benefits,” a pre-termination evidentiary hearing not
permitted by administrative procedures was constitutionally
required. 

Eldridge’s failure to avail himself
of other administrative remedies, these particular allegations
permitted him to bring this due process claim in federal court.
Plaintiffs make no remotely similar allegations here.

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                              III.

     Because Plaintiffs did not file an unfair labor practices

charge complaining of TBB’s unlawful assistance to UAW, they have

failed to state a due process claim.   Accordingly, the judgment of

the district court dismissing this action is



                                                         AFFIRMED.




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