357 F.3d 297 | 3rd Cir. | 2004
ROTH, Circuit Judge customer of the employer
injures the em ployer’s This appeal presents the question business; whether the Virgin Islands Wrongful Discharge Act (WDA), 24 V.I. Code Ann. (3) whose use of intoxicants §§ 76-79 is preempted by the National or controlled substances Labor Relations Act (NLRA), 29 U.S.C. interferes with the proper §§ 151-169, and, if not, whether the discharge of his duties; application of the WDA to supervisors is preempted by the NLRA. A prior panel of (4) who wilfully and this Court addressed the first issue at the i n t e n t i o n a l l y d i s o b e ys preliminary injunction phase and decided reasonable and lawful rules, that the WDA was not preempted. We orders, and instructions of adhere to that decision. The prior panel the employer; provided, left open the second issue. On remand, the however, the employer shall District Court held that the NLRA does not not bar an employee from preempt the application of the WDA to patronizing the employer’s supervisors. This appeal followed. b u s i n e s s a f t e r t h e
employee’s working hours I. Facts and Procedural History are complete; In 1986, the Virgin Islands (5) who performs his work legislature enacted Section 76 of the assignments in a negligent manner; WDA, which limited the grounds upon which an employer may terminate an employee. The statute provided, in (6) wh ose c onti nuous relevant part, as follows: absences from his place of
em ploym ent affect the (a) Unless modified by interests of his employer; contract, an employer may dismiss an employee: (7) who is incompetent or
i n e f f i c i e n t , t h e r e b y (1) who engages in a impairing his usefulness to business which conflicts his employer; with his duties to his (8) who is dishonest; or In 1996, the Virgin Islands
legislature amended the first sentence of (9) whose conduct is such subsection (a) of the statute to state that it leads to the refusal, “[u]nless modified by union contract . . ..” reluctance or inability of 24 V.I. Code Ann. § 76 (1996) (emphasis other employees to work added). This amended provision has been with him. interpreted to apply to all employees in the
Virgin Islands, absent a collective **** bargaining agreement setting discharge terms to the contrary. See St. Thomas–St. ( c ) A n y e m p l o y e e John Hotel & Tourism Ass’n, Inc. v. Gov’t discharged for reasons other of the U.S. Virgin Islands, 218 F.3d 232,
Labor, seeking to restrain the enforcement statutory protections through of the WDA in any pending or future the terms of the collective WDA wrongful discharge proceeding. bargaining agreement. Elsa Huggins and Ladiah Whyte, two employees who have WDA claims pending Hotel Association II, 218 F.3d at 245. before the Department of Labor, However, in Hotel Association II, the intervened as additional defendants. The Court expressly left open the issue whether associations alleged that the WDA was the WDA, as applied to supervisors, was preempted by the NLRA and deprived preempted by the NLRA. In remanding them of federal rights in violation of 42 the case to the District Court to grant U.S.C. § 1983. They sought declaratory summary judgment to the defendants on and injunctive relief under the Declaratory the issue of general preemption, we noted Judgment Act, 28 U.S.C. §§ 2201, 2202, that “there remains for decision by the injunctive relief under 42 U.S.C. § 1983, District Court the associations’ claim that and attorney’s fees under 42 U.S.C. § 1988 the WDA should not be applied to and 5 V.I. Code Ann. § 541. supervisors.” Id. at 246.
Following a hearing, the District On remand, the District Court Court concluded that the plaintiffs were denied the associations’ motion for likely to succeed on the merits of their summary judgment on the question preemption claim and issued a preliminary whether the NLRA preempts the WDA as injunction. See St. Thomas–St. John Hotel applied to all employees. Following & Tourism Ass’n, Inc. v. Gov’t of the U.S. supplemental briefing, the District Court Virgin Islands, Civ. No. 1999-54, 1999 held that the NLRA does not preempt WL 376873 (D.V.I. June 3, 1999) (Hotel application of the WDA to supervisors and Association I). We reversed, holding that: granted defendants’ motion for summary
judgment as to all claims. See St. the WDA is not preempted Thomas–St. John Hotel & Tourism Ass’n, by the NLRA even though it Inc. v. Gov’t of the U.S. Virgin Islands, provides an opt-out by 216 F. Supp. 2d 460, 466-68 (D.V.I. 2002) (Hotel Association III). [2] Plaintiffs timely express terms of union contract. . . . [T]he WDA does not force an employee to choose between collective [2] The District Court also held that b a r g a i n i n g a n d t h e supervisors are covered by the WDA protections of state law; because supervisors are employees under rather, it protects all Virgin 24 V.I. Code Ann. § 62. See Hotel Island employees, but gives Association III, 216 F. Supp. 2d at 463- employees the option of 64. Since plaintiffs do not appeal this relinquishing the territorial issue, we do not address it. appealed. [3] all Employees: II. Jurisdiction and Standard of We decline the associations’ request that we reconsider the prior panel’s Review holding in Hotel Association II regarding The District Court had jurisdiction preemption of the WDA as applied to all over this federal question pursuant to 28 employees. Under the law of the case U.S.C. § 1331. We have jurisdiction over doctrine, “one panel of an appellate court the District Court’s final order pursuant to generally will not reconsider questions that 28 U.S.C. § 1291. We exercise plenary another panel has decided on a prior review over a grant of summary judgment. appeal in the same case. The doctrine is Chisolm v. McManimon, 275 F.3d 315, designed to protect traditional ideals such 321 (3d Cir. 2001). Summary judgment is as finality, judicial economy and appropriate if there is no genuine issue of jurisprudential integrity.” In re City of material fact and the moving party is Philadelphia Litig., 158 F.3d 711, 717-18 entitled to judgment as a matter of law. (3d Cir. 1998). Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250 (1986). However, as this Court recognized
in Council of Alternative Political Parties III. Discussion v. Hooks, “‘while the law of the case 1. Preemption of the WDA as Applied to doctrine bars courts from reconsidering matters actually decided, it does not prohibit courts from revisiting matters that are avowedly preliminary or tentative.’” [3] We note with great concern that the 179 F.3d 64, 69 (3d Cir. 1999). Government of the United States Virgin Preliminary injunctions are, by their Islands, the Virgin Islands Department of nature, tentative and impermanent. See Labor, and the Commissioner of the R.R. Yardmasters of Am. v. Pennsylvania Department of Labor did not see fit to R.R. Co., 224 F.2d 226, 229 (3d Cir. send an attorney to oral argument of this 1955). Thus: appeal before us. The only defendants who were represented at oral argument
T h e p u r p o s e o f a were the intervenors, but their attorney preliminary injunction is admitted that the intervenors were not merely to preserve the supervisors. Nevertheless, despite the relative positions of the intervenors’ lack of standing to address parties until a trial on the the issue of the status of supervisors, we merits can be held. Given permitted them to present argument in this limited purpose, and support of the government’s position in given the haste that is often light of the need to have a full discussion necessary if those positions of this important issue. are to be preserved, a 2. Preemption of the WDA as Applied to preliminary injunction is Supervisors: customarily granted on the basis of procedures that are Turning to the issue left open by less formal and evidence Hotel Association II, we hold that the that is less complete than in District Court in Hotel Association III a trial on the merits. A party erred in concluding that the WDA , as thus is not required to prove applied to supervisors, is not preempted by his case in full at a the NLRA. The Supremacy Clause of the p r e l i m i n a r y - i n j u n c t i o n United States Constitution provides that hearing, and the findings of the laws of the United States “shall be the fact and conclusions of law supreme Law of the Land . . . any Thing in made by a court granting a the Constitution or Laws of any State to preliminary injunction are the Contrary notwithstanding.” U.S. not biding at trial on the Const. Art. VI, cl. 2. This principle merits. applies to the laws of the Virgin Islands
through the Revised Organic Act, which Univ. of Texas v. Camenisch, 451 U.S. authorizes the Virgin Islands legislature to 390, 395 (1981). enact territorial laws that are “not
inconsistent with . . . the laws of the Nevertheless, under this standard United States made applicable to the for preliminary matters, the plaintiffs have Virgin Islands . . . .” 48 U.S.C. § 1574(a). pointed to no adequate reason for Under this Clause: departing from the holding in Hotel Association II. There is no intervening The Supreme Court has new facts or law. See In re City of recognized three general Philadelphia Litig., 158 F.3d at 718. Nor ways in which federal law was the earlier decision so clearly may preempt, and thereby erroneous that it would create a manifest displace, state law: 1) injustice. See id. Finally, the plaintiffs “ e x p r e s s p re e m pt i o n ,” have not pointed to anything about the which arises when there is a more informal procedure of determining a n e x p l i c i t st a t u to r y whether to grant or deny a preliminary command that state law be injunction that resulted in an erroneous displaced, see Morales v. decision. See Camenisch, 451 U.S. at 395. Trans World Airlines, Inc., Therefore, this panel adheres to the 504 U.S. 374 (1992); 2) decision in Hotel Association II that the “field preemption,” which WDA, as applied to employees, is not arises when federal law “so preempted by the NLRA. thoroughly occupies a
legislative field as to make reasonable the inference that Section 14(a) of the NLRA Congress left no room for provides that “no employer . . . shall be the states to supplement it,” compelled to deem individuals defined Cipollone v. Liggett Group, herein as supervisors as employees for the Inc., 505 U.S. 504, 516 purpose of any law, either national or (1992) (internal quotation local, relating to collective bargaining.” omitted); and 3) “conflict preemption,” which arises when a state law makes it
law preemption principles set forth in impossible to comply with San Diego Building Traders Council v. both state and federal law or Garmon, 359 U.S. 236 (1959) and when state law “stands as an International Ass’n of Machinists v. o b s t a c l e t o t h e Wisconsin Employment Relations a c c o m p l i s h m e n t a n d Comm’n, 427 U.S. 132 (1976). See execution of the full purpose Hotel Association III, 216 F. Supp. 2d at and objectives of Congress,” 465 n. 4. Garmon preemption displaces Hines v. Davidowitz, 312 state jurisdiction over conduct which is
U.S. 52, 67 (1941).
“arguably within the compass of § 7 or § Hotel Association II, 218 F.3d at 238. 8 of the Act.” Hotel Association II, 218 F.3d at 239 (quoting Garmon, 359 U.S.
Since the NLRA does not contain at 246). Machinists preemption is a form an express preemption provision and it of conflict preemption under which state regulates an area traditionally regulated by regulation of the bargaining conduct of the states, there is a presumption that private parties is displaced because it Congress did not intend to displace state conflicts with the purpose of Congress in law. See id. Thus, state law will not be enacting the NLRA to leave that conduct preempted by the NLRA unless the state “to be controlled by the free play of law conflicts with the NLRA’s express economic forces.” Id. (quoting provisions or underlying goals and Machinists, 427 U.S. at 140). However, policies. See id. A state or territorial law while the subspecies of Garmon and conflicts with the NLRA if it stands as an Machinists preemption often are invoked obstacle to the accomplishment and in connection with the NLRA, the field execution of the full purposes and of labor law also is subject to the general objectives of Congress. See id. [4] preemption principles outlined above. See id. Thus, the issue in the present case is whether, under general principles [4] The District Court in Hotel of conflict preemption, the WDA Association III correctly recognized that conflicts with the NLRA. See id.; the proper analysis in this case is not Livadas v. Bradshaaw, 512 U.S. 107, 120 guided by the two dominant federal labor (1994). 29 U.S.C. § 164(a). The purpose of this supervisory employees were organized, section is to redress a perceived imbalance disciplinary slips fell off by two thirds and in labor-management relationships that the accident rate doubled. Id. at 661 arose from putting supervisors in the (quoting S.Rep. No. 105 at 3, 4). position of serving two masters with opposing interests, namely their employer Turning then to the territorial law and their union. See Beasley v. Food Fair before us, if the WDA is applied to of North Carolina, 416 U.S. 653, 657 supervisors, the only way for an employer (1974). The Supreme Court in Beasley to alter or expand the WDA’s nine recognized that “‘Congress’ propelling enumerated grounds for terminating a intention [in enacting Section 14(a)] was supervisor/employee would be to enter a to relieve employers from any compulsion “union contract” with the supervisor. But under the Act and under state law to the qualities an employer looks for in countenance or bargain with any union of supervisors are not the same as those an supervisory employees . . ..’” Id. at 657 employer looks for in employees. There (quoting from Hanna Mining Co. v. are aspects of management that extend District 2, Marine Engineers Beneficial beyond the work qualities enumerated in Ass’n, 382 U.S. 181, 189 (1965)). Thus, the causes for discharge permitted under the Court struck a state statute that the WDA. An employer may consider it permitted supervisors to seek damages essential that a supervisor’s mastery of against employers who discharged them these aspects of management be a for union membership because it “plainly condition of employment. Under the put pressure on [the employers] ‘to accord WDA, however, in order to incorporate to the front line of management the those other grounds for discharge into an anomalous status of employees,’ and employment contract with a supervisor, the would therefore flout the national policy employer would have to bargain with the against compulsion upon employers from supervisor as an employee. Moreover, if either federal or state agencies to treat the supervisors, as the front line of supervisors as employees.” Id. at 662 management, were answerable not only to (quoting S.Rep. No. 105 80 th Cong., 1 st the employer but also to the union, the Sess. at 5 (1947)). Beasley, thus, teaches employer’s ability to safely, efficiently, that state (or territorial) laws that pressure and productively manage the business employers to accord supervisors the status might suffer. of employees for collective bargaining purposes conflict with Section 14(a) of the Under Beasley, pressure upon NLRA. See id. As noted in the Senate employers to treat supervisors as Report quoted in Beasley, the result of employees and to bargain with them as supervisors serving two masters, and not such violates Section 14(a). See 416 U.S. being loyal to the employers’ interests, was at 657. We conclude that the WDA would evident in the coal mines, where, after have such an effect on employers by exerting a significant degre e of 14(a) seeks to combat. The directness of compulsion upon employers to bargain the pressure may affect the strength of the with supervisors as employees; thus the incentive rather than its existence. WDA violates Section 14(a). However, the Supreme Court, by stating in
Beasley that Congress intended to prevent The District Court in Hotel “any compulsion,” clearly recognized that Association III, however, read Beasley as Section 14(a) prohibits the creation of any holding that a state or territorial statute pressure to collectively bargain with conflicts with Section 14(a) only when the supervisors. 416 U.S. at 657. effect of the statute is to “afford supervisors a cause of action that they Thus, in Washington Service would not otherwise have under the Contractors Coalition v. District of NLRA.” Hotel Association III, 216 F. Columbia, the District Court for the Supp. 2d at 465. This reading of Beasley District of Columbia held that a statute that is incomplete. The holding in Beasley is indirectly compelled an employer to not merely that it is a violation of Section bargain collectively with supervisors 14(a) if state law affords supervisors a conflicted with Section 14(a). See 858 F. cause of action that they would not have Supp. 1219, 1221 (D.D.C. 1994), rev’d on under thE NLRA. Beasley goes further to other grounds, 54 F.3d 811 (D.C. Cir. establish that it is a violation of Section 1995). In that case, the District of 14(a) if the state law “relating to collective Columbia enacted a statute that required bargaining,” – whether or not it affords a contractors to retain many of their cause of action to supervisors – “‘puts predeces sor’s employees af ter the pressure on [employers] to accord to the contractors took over a service contract. front line of management the anomalous The District Court held that the statute status of employees.’” 416 U.S. at 662 compelled the employer to bargain with (quoting S .Rep. No. 105 at 5). Such a law the supervisors collectively in violation of would “flout the national policy against Section 14(a). The court found that, compulsion upon employers from either because the statute applied to supervisors, federal or state agencies to treat if a predecessor’s supervisors were supervisors as employees.” Id. unionized, the statute could indirectly
compel an employer to bargain collectively So long as a state or territorial with supervisors by preventing the statute creates some pressure to bargain e m p l o y er f r o m t e r m i n a t i n g t h e collectively with supervisors, be it direct predecessor’s supervisors. See id. at 1225. or indirect, the statute creates the possibility of forcing employers to divide As in Washington Service the loyalties of their supervisors between Contractors Coalition, the WDA does not the employer and the union. As Beasley directly require that an employer recognized, it is this pressure that Section collectively bargain with supervisors. Nevertheless, the WDA indirectly compels an employer to bargain collectively with supervisors by requiring that an employer who wishes to alter the WDA’s grounds for terminating a supervisor enter into a collective bargaining agreement. Since this limitation constitutes pressure to bargain with supervisory employees, the WDA, as applied to supervisors, conflicts with Section 14(a) of the NLRA
IV. Conclusion For the reasons stated above, the judgment of the District Court as to general preemption will be affirmed. The judgment in favor of the government defendants as to the application of the WDA to supervisors will be vacated and this question will be remanded to the District Court with instructions to enter judgment in favor of plaintiffs.
NOTES
236 (3d Cir. 2000) (Hotel Association II).
[1] t h a n t h o s e stated in subsection (a) of this section shall be considered to have On April 5, 1999, the St. been wrongfully discharged; Thomas–St. John Hotel & Tourism however, nothing in this Association, Inc., the St. Thomas–St. John section shall be construed as Chamber of Commerce, Inc., and the St. prohibiting an employer Croix Hotel & Tourism Association, Inc. f r o m t e r m i n a ti n g a n (collectively the “associations”) filed this employee as a result of the action in the District Court of the Virgin cessati o n o f b u s i ne ss Islands against the Government of the operations or as a result of a Virgin Islands, the Virgin Islands general cutback in the work Department of Labor, and the Acting force due to economic Commissioner of the Department of hardship, or as a result of the employee’s participation in concerted activity that is
[1] In 2000, the Virgin Islands not protected by this title. Legislature amended the definition of “employee” under the WDA to exclude 24 V.I. Code Ann. § 76 (1986). Any “any person employed in a bonafide employee covered by the WDA and position in an executive or professional discharged in violation of Section 76 may capacity.” See St. Thomas–St. John file an administrative complaint with the Hotel & Tourism Ass’n, Inc. v. Gov’t of Commissioner of Labor, who has the the U.S. Virgin Islands, 216 F. Supp. 2d authority to order reinstatement and back 460, 462 (D.V.I. 2002) (Hotel pay. 24 V.I. Code Ann. § 77. In addition, Association III). The issue of the an employee may file a lawsuit for coverage under the WDA of supervisory compensatory and punitive damages. 24 employees who are not executives or V.I. Code Ann. § 79. professionals is still, however, before us.
