IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

NATIONAL LABOR RELATIONS BOARD * PROFESSIONAL ASSOCIATION, * Plaintiff, * v. Civil Action No. 8:20-cv-00078-PX * FEDERAL SERVICE IMPASSES PANEL, et al., *

Defendants. * *** MEMORANDUM OPINION

Pending before the Court is a motion to transfer venue filed by Defendants Federal

Service Impasses Panel (“the Panel”) and the Federal Labor Relations Authority (“the FLRA”).

ECF No. 16. Defendant National Labor Relations Board (“the NLRB”) consents to the motion.

The motion is fully briefed, and no hearing is necessary. See Loc. R. 105.6. For the following

reasons, the Court grants the motion to transfer.

I. Background

Plaintiff National Labor Relations Board Professional Association (“the NLRBPA”) is

the exclusive bargaining representative for two bargaining units comprised of approximately 120

professional employees who work at the NLRB’s headquarters in Washington, D.C. ECF No. 1

¶ 15. One of those bargaining units represents NLRB employees working directly for the NLRB

and the other unit represents employees of the NLRB’s General Counsel’s Office. Id. ¶ 16; ECF

No. 1-11 at 2. The NLRBPA’s principal place of business is its President’s home office located

in Silver Spring, Maryland. ECF No. 19-1 ¶¶ 2–3.

Defendant FLRA, a federal agency, is tasked with establishing policies and guidance

pertaining to labor-management relations for federal government employees. See

; ECF No. 1 ¶ 11. The Panel falls under the auspices of the FLRA, and is empowered by

the Federal Service Labor-Management Relations Statute,

et seq., to resolve

federal-sector bargaining impasses by “tak[ing] whatever action is necessary and not inconsistent

with [the Statute] to resolve the impasse.” § 7119(c)(5)(B); ECF No. 1 ¶ 4. The Panel retains

broad authority to “investigate any [negotiation] impasse presented to it,” and its actions are

“binding on [the] parties during the term of the agreement, unless the parties agree otherwise.”

§ 7119(c)(5)(A),(C); ECF No. 1 ¶¶ 6–8.

Panel members are appointed for five-year terms by the President of the United States,

without Senate confirmation. § 7119 (c)(2)-(3). ECF No. 1 ¶ 9. The Panel is based physically in

Washington, D.C. and conducts is operations out of its Washington, D.C. office. See, e.g., ECF

Nos. 1-1, 1-2, 1-4.

From October 2018 to May 2019, the NLRBPA engaged in negotiations with the NLRB

pertaining to new collective bargaining agreements for both units. ECF No. 1 ¶¶ 17–24.

According to the NLRBPA, negotiations deteriorated almost as soon as they began. The

NLRBPA filed multiple grievances, arguing that the NLRB negotiated in bad-faith and that it

insisted on the NLRBPA’s waiver of statutory rights in the bargaining process. Id. ¶¶ 17–24.

With negotiations stalled, the NLRB requested assistance from the Panel. Id. ¶ 23. On

May 28, 2019, the Panel announced it would first investigate whether it should assert jurisdiction

over the impasse. Id. ¶ 25. After receiving written briefing from both sides, the Panel decided to

exercise its authority to preside over the entire bargaining dispute. Id. ¶¶ 27–28. The Panel

ordered the parties to submit final offers on the issues at impasse and a statement of position. Id.

¶ 28; ECF No. 1-4.

The NLRBPA’s final position statement argued that because the NLRB proposals were

2 presented in bad faith and addressed permissive subjects of bargaining, no valid impasse could

exist. ECF No. 1 ¶ 29; ECF No. 1-5. The NLRPA also raised that the Panel, comprised of

members selected solely by the President and without Senate approval, acted in violation of the

Appointments Clause of the United States Constitution, and thus without any lawful authority.

ECF No. 1 ¶ 30; ECF No. 1-5.

On December 2, 2019, the Panel issued its decision regarding the impasse. ECF No. 1 ¶¶

40–41; ECF No 1-11. In it, the Panel summarily concluded that it is “appropriately appointed,

and the Panel’s jurisdiction over this matter is appropriate.” Id. The Panel also ordered the

parties to adopt several ground rules as part of its negotiation process going forward. ECF No. 1

¶ 42; ECF No. 1-11.

In response, the NLRBPA filed suit in this Court on January 10, 2020, contending solely

that the Panel is unlawfully constituted under the Appointments Clause of the United States

Constitution. ECF No. 1 ¶¶ 49–65. The NLRBPA requests as its remedy that this Court declare

that the Panel Members do not lawfully hold office, and thus the Panel’s Decision must be

vacated. Id. ¶ 66.

On January 15, 2020, the NLRBPA moved for injunctive relief, to which the Defendants

responded. ECF Nos. 4, 17. Defendants also separately moved to transfer venue to The United

States District Court for the District of Columbia. ECF No. 16. For the following reasons, the

Court agrees that transfer is appropriate, and will grant Defendants’ motion. The NLRBPA’s

motion for preliminary injunction (ECF No. 4) is denied as moot.

II. Analysis

The propriety of transfer is governed by

(a), which states, “[f]or the

convenience of parties and witnesses, in the interest of justice, a district court may transfer any

3 civil action to any other district or division where it might have been brought or to any district or

division to which all parties have consented.” To prevail on a transfer motion, “the defendant

must show by a preponderance of the evidence that the proposed transfer will better and more

conveniently serve the interests of the parties and witnesses and better promote the interests of

justice.” Jones v. Koons Auto., Inc.,

, 680–81 (D. Md. 2010) (quoting Helsel

v. Tishman Realty & Constr. Co.,

(D. Md. 2002)) (internal quotation

marks omitted). The defendant cannot rely on conclusory allegations of hardship to meet this

burden but rather must demonstrate, by affidavit or otherwise, evidence of “the hardships they

would suffer if the case were heard in the plaintiff’s chosen forum.” Dow v. Jones,

(D. Md. 2002).

When deciding the propriety of transfer, the Court must first determine whether the

action could have been brought in the requested venue. In re: Volkswagen of Am., Inc.,

(4th Cir. 2008). If venue is proper in the requested forum, the Court next considers

several factors, to include: “(1) the weight accorded the plaintiff’s choice of venue; (2) witness

convenience and access; (3) convenience of the parties; and (4) the interest of justice.” Lynch v.

Vanderhoef Builders,

(D. Md. 2002). Notably, district courts retain

“broad discretion” in weighing these factors and in ultimately deciding the propriety of transfer.

Volkswagen,

.

It is undisputed that this case could have been brought in the District of Columbia. ECF

No. 16 at 7; ECF No. 19 at 2. Accordingly, the Court turns to each of the factors relevant to

whether transfer is warranted.

A. Plaintiff’s Choice of Venue

Generally, the “plaintiff’s forum choice of venue is ‘entitled to substantial weight.’”

4 Cross v. Fleet Reserve Ass’n Pension Plan,

(D. Md. 2005) (quoting Bd.

of Trs., Sheet Metal Workers Nat’l Fund v. Baylor Heating & Air Conditioning, Inc.,

(E.D. Va. 1988)). However, where the chosen forum “‘has little connection to

the merits of the underlying dispute,’” the plaintiff’s forum choice is given less weight. Int’l

Painters & Allied Trade Indus. Pension Fund v. Marrero Glass & Metal, Inc., No. ELH-18-452,

, at *4 (D. Md. Feb. 1, 2019) (quoting Lynch,

).

The NLRBPA rightfully points out that it is headquartered at its President’s home office

in Maryland. ECF No. 19-1 ¶¶ 1–3. However, this is where the relevant ties to this district begin

and end. At the heart of this suit is whether the Panel Members’ appointments, and by extension

the Panel decisions, pass constitutional muster. ECF No. 1 ¶¶ 49–65. This underlying dispute

centrally concerns the structure and operations of the Panel as well as the finality of the Panel’s

decisions. See ECF No. 4-1 at 24–34.

Once the dispute, as pleaded, is put in proper focus, it becomes clear that the case

concerns matters that take place exclusively in the District of Columbia. The Panel’s physical

location is Washington, D.C., where its members deliberate,1 hold its proceedings, and render

decisions. See ECF Nos. 1-2, 1-4, 1-11; ECF No. 1 ¶¶ 25–27, 40–42, 43–45. Indeed, the very

appointment process—with which the NLRBPA finds fault—occurs in D.C. ECF No. 1 ¶ 9.

Moreover, in this case, if relevant at all, the NLRBPA and NLRB negotiations occurred at the

NLRB’s D.C. headquarters. See ECF Nos. 2–4, 8, 10–13. And the unit employees, for whom

the NLRBPA bargains, all work at headquarters. ECF No. 1 ¶ 15. The Court cannot discern,

therefore, how the merits of this claim are connected to this forum. Because all relevant facts

1 The NLRBPA notes that some deliberations may have occurred in Pennsylvania, as one of the Panel members is based in Pennsylvania. ECF No. 19 at 6. Even if true, Plaintiffs have failed to show that any deliberations—or any other Panel activity—occurred on Maryland.

5 concerning this claim occurred in D.C., the NLRBPA’s choice of forum is afforded

comparatively less weight.

In opposing transfer, the NLRBPA primarily argues that Maryland remains the proper

forum because a quarter of its represented employees occasionally telework from Maryland. The

Court sees little relevance in this respect. As pleaded, none of the relevant events regarding the

Appointments Clause violation occurred at an employee’s home office. Indeed, as the NLRBPA

explains, employees who wish to engage in collective bargaining must be physically present at

the NLRBPA’s Washington, D.C. headquarters. ECF No. 19 at 4 n.3. (“[M]ultiple members of

the NLRBPA’s bargaining committee are currently reporting from their homes in Maryland to

Board headquarters in Washington, D.C. to engage in the negotiations covered by the Panel’s

ground-rules order on days they would otherwise be teleworking in Maryland.”).

Relatedly, the NLRBPA presses that Maryland’s forum is proper because the Panel’s

determinations are felt by employees who live, and occasionally telework, in Maryland. ECF

No. 19 at 4–5. However, teleworking aside, it is undisputed that the employees’ official worksite

is in D.C. More to the point, the NLRBPA has failed to show how its challenge to the very

constitutionality of the Panel bears any relation to where its own employees sit on any given day.

Cf. Marrero Glass & Metal,

, at *4 (the plaintiff’s choice is “significantly

lessened” where the chosen forum “‘has little connection to the merits of the underlying

dispute.’”) (emphasis added). Thus, because all events relevant to the action occurred in D.C.,

the NLRBPA’s choice of forum is accorded little weight.

B. Convenience of Witnesses and Parties

As to witness convenience, this second factor is perhaps “most important” to the transfer

analysis. Cronos Containers, Ltd. v. Amazon Lines, Ltd.,

(D. Md.

6 2000). In this matter, however, the Court views this factor as a wash. The Greenbelt and D.C.

federal courthouses are only fifteen miles apart. Public transportation is easily accessible, and

even with traffic, D.C. witnesses may reach the Greenbelt Courthouse in under an hour, as is

evident by the D.C. residents who routinely litigate their matters in this forum. Likewise, the

parties are located near both courthouses and can appear in either forum without difficulty.

Thus, the convenience of the parties and witnesses neither support nor defeat the motion.

C. Interest of Justice

As to the interests of justice, this factor “encompass[es] all those factors bearing on

transfer that are unrelated to the convenience of witnesses and parties.” Cross,

. One factor critically relevant in this matter is the need to avoid “duplicative litigation in

different federal courts.” Cronos Containers,

; see also 15 Fed. Prac. &

Proc. Juris. § 3854 (4th ed.) (“[M]any courts have transferred to a forum in which other actions

arising from the same transaction or event, or which were otherwise related, were pending.”).

Preventing duplicative litigation allows for the conservation of judicial resources and the

“comprehensive disposition” of claims. See Mamani v. Bustamante,

(D. Md. 2008). Transfer of similar claims to one jurisdiction is also in the interests of justice so

as to avoid inconsistent results, D2L Ltd. v. Blackboard, Inc.,

(D. Md.

2009), even where the particular parties may not be precisely identical. See, e.g., Marrero Glass

& Metal Inc.,

, at *1; Evans v. Arizona Cardinals Football Club, LLC, No. CV

WMN-15-1457,

, at *4 (D. Md. Feb. 25, 2016).

This factor clearly weighs in favor of transfer. The identical appointments clause

challenge against the Panel is currently pending in the D.C. district court which has yet to rule on

dispositive motions. See American Federation of Government Employees v. Federal Service

7 Impasses Panel, 19-cv-1934-RJL (D.D.C.). The Panel and FLRA are also defendants in the D.C.

case.

Accordingly, transfer will not only conserve judicial resources by allowing the forum

currently wrestling with this important constitutional question to address both matters, cf.

Mamani,

, but will also avoid inconsistent determinations. Cf. D2L Ltd.,

. This Court cannot predict or promise that this case will be consolidated

with the one presenting pending in the D.C. district court. But absent transfer, there would be no

such opportunity for either party to request, or for the court to consider, consolidation. The

Court concludes that the interest of justice weighs heavily in favor of transfer.

In sum, although this Court recognizes that the NLRBPA’s original choice of forum must

be accorded significant weight, it is in this case eclipsed by the other countervailing factors. The

Court is persuaded that the United States District Court for the District of Columbia is the proper

forum for this matter when considering all events relevant to the single Appointments Clause

challenge took place in D.C., and transfer will go far in avoiding duplication of judicial resources

and inconsistent judgments. Defendants’ motion to transfer (ECF No. 16) is granted. The

NLRBPA’s motion for preliminary injunction (ECF No. 4) is denied as moot.

A separate Order follows.

4/2/2020 /S/ Date Paula Xinis United States District Judge

8