Golden State Transit Corporation a California Corporation v. City of Los Angeles, a Municipal Corporation
754 F.2d 830
9th Cir.
1985
Check Treatment

*1 FARRIS, Before ALARCON and NOR- RIS, Judges.

FARRIS, Judge: tection clauses of the United States Consti granted tution. district court purchased Transit the as- Golden State request preliminary for a injunction State’s bankrupt Company of the Yellow sets Cab preserving opera its as a status franchised City approved in 1977 and the thereafter tion on the basis of its claim. the transfer of Yellow Cab’s franchise. On Corp. City Golden State Transit v. 1980, 31, March made a time- Golden State F.Supp. 191, (C.D.Cal. Angeles, application ly for renewal of its taxicab 1981). State, We reversed. Golden expi- franchise to effective become 758, (9th Cir.1982), F.2d 760-761 cert. de 31, De- ration on March nied, 459 U.S. partment Transportation reported (1983). L.Ed.2d 954 compliance in full all Golden State was with terms and conditions of its franchise. Golden State thereafter amended its com Acting report, on this the Board of Trans- plaint allege a violation of the Sherman portation ap- recommended Commissioners byAct City. granted The district court proval of the franchise renewal to the summary judgment against Golden State Transportation and Traffic Committee of grounds City on the that the was immune City September Council on 1980 and State, from liability. antitrust again January Transpor- on 1981. The (C.D.Cal.1983). F.Supp. We af tation and Traffic Committee recommended State, firmed. Golden 726 F.2d 1430 City to the Council that Golden State be — Cir.), denied, U.S.—, cert. granted five-year renewal franchise. —1865, L.Ed.2d—(1985). We denied approving

An ordinance Golden State’s petition rehearing and en banc re approving ordinances franchise as well as granted view. The district court then sum operating twelve other taxicab franchises mary judgment against Golden State on its City placed City within the were remaining appealed. claims. Golden State February calendar Council questions presented Two are for our de agreement October novo review: expired the Teamster’s Union City preempted Was the refusing from they agreement. failed to reach a new On renew Golden State’s taxicab franchise? 5, 1981, February the Teamsters informed February On labor allege Did Golden State a sufficient con- 11, 1981, drivers Golden State went out on stitutionally protected property strike. justify question a trial on the of a due process violation? pending except All franchises February State’s were renewed on questions negatively We answer both 1981, including disap- one that had been and affirm. proved by Department Transporta- pertaining tion. The ordinance to Golden February

State was continued to PREEMPTION ISSUE found, if to take effect the Council on or articulat March that the before extension ed two distinct bases for City. the best interest of the first, state action the NLRA. The primary jurisdic which is founded on the 23, 1981, On March Council con- NLRB, tion preempts action adopt finding state sidered a motion to that the concerned with conduct that is at least ar 30-day extension of Golden State’s fran- guably prohibited protected by City. in the interests of the or the Act. chise was best Diego Building The motion was defeated eleven votes to See San Trades Council Garmon, brought one. Golden State suit district

court, charging that the action L.Ed.2d 775 The state action NLRA, not, however, preempted by being preempted as well as will if the con process equal pro- of the due regulated only peripheral violative duct concern Initially, argued deeply interests root- Golden State or touches of the Act responsibility. feeling and Id. ed in local that the district court erred in this supplemen- A 243-44, 79 at 778-79. finding legislative history cited preemption prohibits state tal branch did not demonstrate a “com Golden State intend- concerning conduct that was action congressional pelling direction” *3 it con- unregulated because was ed to be City’s argues action. Golden State now weapon economic for use proper sidered a application excep that of the local interest 76, dispute. Lodge by parties to a labor in preemption tion to NLRA this case was Aerospace & Int’l Ass’n Machinists inappropriate. agree with We Employment Rela- v. Wisconsin Workers court’s State. Because the district decision 132, 140, Comm’n, 427 U.S. tions by grounds, however, supported other 2548, (1976). 2553, 396 49 L.Ed.2d grant summary judgment we affirm its granted Golden State a The district court preemption on the issue.2 upon pre preliminary injunction based City’s renewal of taxicab franchises emption interlocutory appeal, claim. On was held to fall within the local interest power of taxicab franchise we held that the exception pre because we found NLRA local renewal was a matter of such interest emption harder to infer when a state is upon ‘compel “must rest that “ ” regulating ‘traditionally such a mat local ling congressional direction.’ 686 F.2d at ” highways.” ter’ as the “use of streets and omitted). (citation Finding 760 no such evi (citing Allen-Bradley 686 F.2d at 760 Lo dence, the district court’s we vacated No. 1111 v. Employment cal Wisconsin Then, grant.1 opposition City’s in to the Board, 740, 749, Relations 315 U.S. 62 summary judgment, motion 820, 825, (1942),quoted 86 L.Ed. 1154 S.Ct. legislative history State introduced of an 76, 2, Lodge in 427 at 136 n. 96 at U.S. S.Ct. alleged to the NLRA and amendment 2). Allen-Bradley 2551 n. Our reliance on Congress’ specific it demonstrated intent to misplaced.3 was That case dealt with a City’s. as the actions such picket unruly violent and outside of the legislative history district court found the employer’s in unpersuasive granted City’s factory which the strikers mo blocking threatening tion. were the streets and See, uphold rights. e.g., Lodge 1. We did the district court’s substantive economic determina- 136-37, 154-55, 2551-52, tion that the non-renewal of Golden State’s fran- U.S. at at power decisions, chise altered the balance of economic in Supreme Recent 2560. ever, Court how dispute, noting supported the labor that it was exception appropri indicate that this is not by "ample evidence in the record." 686 F.2d at See, involving rights. ate in cases substantive reason, agree 759. For this we cannot Employees Brown v. Hotel & Restaurant & concurrence, Judge suggestion, Norris' in his —54, —, Bartenders Int’l Union Local U.S. summary judgment appropriate be- 82 L.Ed.2d 373 present any cause Golden State has failed to ground Because we affirm on another we do not supporting City’s evidence its claim that address this issue. bargaining power. action affected its To affirm grant summary judgment the trial court’s City argues prior decision on the that our city, light we must view the evidence in the preliminary injunction is law of the case and favorable to State. most See Fruehauf reconsideration of it is barred. This assertion is America, Royal Exchange Corp. v. Assurance of rule, wrong. general prelimi- As a decisions on (9th Cir.1983). 704 F.2d The district injunctions nary do not constitute law of the previously found that the action did court "parties litigate case and are free to the merits.” bargaining power. affect Golden State's We Duncan, City Anaheim v. 658 F.2d disregard finding. cannot addition, (9th Cir.1981). may n. 2 we exer- that the local 2. Golden State also contends inter "contrary controlling cise our hear discretion to exception only applies based est authority applicable on the issues of law." Sid- jurisdiction primary of the NLRB. Gold Zah, (9th Cir.1983) ney v. 718 F.2d argues ex en State thus that the local interest (citations omitted). is described This ception inapposite, because this case involves reject propositions. both of these We therefore self-help rights substantive to economic under contention. past, NLRA. In the Court has the applied exception local interest to matters of Moreover, the working employees. ing upon concerning Su- its views accommoda tion of the same focused strictly local interests” preme Court has limited the Lodge NLRA. 427 U.S. at 140 n. involving vio- exception interest matters Cox, at 2553 n. 4 (quoting S.Ct. Labor actions, lence and tort such as libel and Preemption Revisited, Law 85 Harv.L. intentional infliction of emotional distress. (1972). Similarly, Rev. in New See, Telephone e.g., New York New Co. Telephone, the held York that New Dep’t, York 550- State Labor unemployment compensation York’s pro gram, payments authorized which to strik (1979)(Blackmun, J., Marshall, J., joined by workers, ing preempted, part, was not plurality opinion); Lodge program because the not intended to (focus 96 S.Ct. at U.S. regulate labor relations pro “but instead to exception “[pjolicing local is the an insuring employ vide efficient means of *4 or de- actual or threatened violence ... security.” ment 440 U.S. at property”). struction of There are no alle- (Stevens, J., at plurality opinion).4 1337 violent, destructive, gations of tortious or in Nothing the record indicates that the in conduct this case. City’s refusal to renew extend or The First has local Circuit extended the agreement State’s franchise until an hospital to contain- exception interest cost operations reached resumed was not legislation. ment Nurs- Massachusetts transportation. concerned with Such a con Dukakis, (1st 44 ing 726 Ass’n v. F.2d cern not implicate does or conflict with decision, however, Cir.1984). That policy. federal labor There is therefore no upon strong congressional sup- also basis to the action. based port programs for such and the indirect regulated industry, In any myriad a of challenged legislation effect the on la- had governmental decisions from rate-setting Supreme bor relations. Id. at 43-45. safety to the establishment of standards precedent distinguishing and the cir- are to bound affect relations in labor cumstances in Dukakis to con- cause us If industry. regulation public local of utili clude that restricted, the extension of the local inter- ties to unduly is not be only seeking exception directly actions alter est to this case was the unwarranted. sub dispute stantive outcome of a not, labor however, should This conclusion resolve does Dukakis, preempted. 726 F.2d at the matter. Cf. 45; Amalgamated Union, Transit Div. peripheral concern exception to (3d Byrne, 819 v. 568 F.2d Cir. preemption recognizes labor the banc) J., 1977) (en (Adams, dissenting). NLRA “does not withdraw ‘from the States did attempt not to dictate terms of power regulate activity ... where the the bargaining agreement collective or al regulated merely peripheral concern [is] ter the of substantive outcome the ” Lodge [act].’ upon It merely insisted resolution of the omitted). (footnote 96 S.Ct. at 2551-52 dispute as a condition to franchise renewal. exception regulate This allows states to refusal to renew Golden State’s only possi matters is when there a remote preempted by franchise therefore not the bility of regulation conflict between such NLRA. policy. and national 137-38 labor See id. at DUE PROCESS ISSUE Preemption

n. 2551-52 n. S.Ct. at required only is thus “en when a state State contends that the as or statutes rules of decision rest surances made various officials re- force[s] Although potential the Court has indicated tion the for conflict between state exception apply regulation policy appro- that the local interest does not and federal labor an priate based substantive economic consideration under both branches of — See, Brown, U.S.-, rights, supra preemption. see footnote the considerations represented by peripheral exception (examining regulation concern S.Ct. at 3187 state of un- similarly possible employ- are not limited. There doubt ion is no officials conflict with peripheral excep- rights); Telephone. the focus of concern ees’ see abo New York — —, 80 L.Ed.2d mu- U.S. S.Ct. renewal constitute garding franchise decision, understanding to create In that federal sufficient tual property inter- constitutionally protectable plaintiff government’s termination Roth, Regents v. est the Board permits testing under to use kits to veterinarians’ 33 L.Ed.2d 548 U.S. in contagious disease check for a cattle was Sindermann, U.S. (1972) Perry v. showing of upheld. There was no a mutual (1972) agreement contradict the un otherwise no There is evidence formulation. government fettered retained discretion understanding necessary to estab- mutual 721 F.2d over the of the kits. at 1186. use most, interest; at State lish an such person held “mere fact a We renewal. expectation of had a unilateral past, government received a benefit 760-61. 686 F.2d at length time, does even a considerable assertion that Vail not, more, without rise to level of a Union Education Paris Board (cita legitimate of entitlement.” claim Id. Cir.1983), 95, 706 F.2d 1435 School District omitted). tion — U.S.—, curiam, per aff 'd Affirmed. (1984) establish 80 L.Ed.2d sufficiency in fran es case, NORRIS, Judge, concurring In that renewal is mistaken. chise *5 plain to the voted assure the part judgment. school board and in the one-year coaching contract tiff his that judgment I concur in the the court year. a renewed for second would be affirming grant court’s of sum- the district The school was the F.2d at 1436. board City. I mary for the also concur judgment hiring body to make decisions authorized opinion part majority holding in that the assurance thus suf and their informal was process that due claim must Golden State’s In school the ficient to bind the district. fall because State failed to es- Golden case, legisla present franchise renewal is a constitutionally protectable tablish that act, see, v. tive Monarch Cablevision property created. interest was Council, Cal.App.2d City however, (1966), I legislative separately, and I write because all Cal.Rptr. City unnecessary to wholly in the to be it the dis power is vested Council believe Angeles City position ordinance. to address exercised of this Golden § City officials that al argument pro Charter 21. that the legal State’s NLRA legedly promised Golden State “automatic” refusing to City hibits a from renew Gold authority had no to act franchise renewal en under what Golden State’s franchise no under and therefore mutual the facts of case.1 alleges State to be the this the of their standing created on basis argument is con representation. (1) premises: that structed on two factual refusing to City’s purpose the renew the Houle, State, relying on Doran v. Golden franchise to assist Teamsters (D.Mont.1982), contends F.Supp. State, Golden dispute their labor with property protected have a licensees (2) City’s that the effect of the refusal We va in their license renewals. destroy renew franchise was to precisely decision on cated the Doran ability to resist State’s economic it for. grounds that Golden State cites evidence, Cir.1983), denied, cites no strike.2 State 721 F.2d 1182 cert. tempt majority's the terms of collective bar- of the dictate I view the discussion Because dicta, gaining agreement it otherwise al- or because I com- as refrain from issue powers par- bargaining tered relative menting perceive to defi- what I be serious on support this As ties a labor analysis. in its ciencies argument, relies on the line of Golden State short, argument recognizing certain state actions that cases State's is that bargaining positions of labor preempt- alter the relative to renew franchise refusal may imple- management effective "frustrate it an at- ed NLRA because constituted however, gives rise to triable issue

of fact respect either these fac- result,

tual allegations. As a we should

hold to summary is entitled

judgment ground narrow that Gold-

en State has offered no substantial evi- support

dence to allega- its critical factual

tions. totally unnecessary go It is for us to

further legal question and discourse on the possible preemptive effect of the

NLRA action.

LOCAL JOINT BOARD EXECUTIVE OF VEGAS,

LAS CULINARY WORKERS

UNION, LOCAL 226 and Bartenders

Union, 165, Plaintiffs-Appellees, Local CENTER, INC.,

ROYAL

Defendant-Appellant.

No. 84-1867. Appeals, States

United Court of

Ninth Circuit.

Argued and Submitted Jan. May 22,

Decided Comm’n, 132, 147-48, processes” Emp. mentation of the Act's therefore Rel. 2548, 2556-57, E.g. preempted. Machinists Wisconsin