325 F.3d 360 | D.C. Cir. | 2003
Lead Opinion
Opinion for the Court filed by Senior Circuit Judge STEPHEN F. WILLIAMS.
Dissenting opinion filed by Circuit Judge ROGERS.
On February 17, 2001, relying on his power under the Procurement Act, President Bush issued Executive Order 13201, applying to all government contracts involving more than $100,000. Executive Order 13201, § 2, 66 Fed.Reg. 11,221, 11,-221, 2001 WL 169257 (2001); 41 U.S.C. § 403(11) (2000). Under the order, each such contract must include a provision requiring contractors to post notices at all of their facilities informing employees of what are commonly known as General Motors and Beck rights. See Executive Order 13201, § 2, 66 Fed.Reg. at 11,221-22, 2001 WL 169257 (2001). (In addition, contractors must require subcontractors to post such a notice. Id.) These are rights under federal labor law that protect employees from being forced to join a union or to pay mandatory dues for costs unrelated to representational activities. See Communications Workers v. Beck, 487 U.S. 735, 754-63, 108 S.Ct. 2641, 2653-58, 101 L.Ed.2d 634 (1988); see also NLRB v. Gen. Motors Corp., 373 U.S. 734, 739-45, 83 S.Ct. 1453, 1457-61, 10 L.Ed.2d 670 (1963). Besides informing employees of their Beck rights, the notice is to tell them how they may contact the National Labor Relations Board (“NLRB”) for additional information. 66 Fed.Reg. at 11,222, 2001 WL 169257.
Plaintiffs brought suit against the Secretary of Labor and the members of the Federal Acquisition Regulatory Council, seeking declaratory and injunctive relief. The plaintiffs are the UAW-Labor Employment and Training Corp. (“UAW”) and three unions. UAW is a non-profit organization that provides job training and placement services; it is a federal contractor subject to the executive order. Accordingly it clearly has standing, and we need not consider whether the other plaintiffs do. See Mountain States Legal Found. v. Glickman, 92 F.3d 1228, 1232 (D.C.Cir. 1996).
The plaintiffs claimed that the order was preempted by the National Labor Relations Act (“NLRA”), 29 U.S.C. § 151 et seq., and also that, for want of an adequate nexus to the government’s interest in efficient and economical contracting, the President had no authority to issue it under the Federal Property and Administrative Services Act of 1949 (the “Procurement Act”), 40 U.S.C. § 471 et seq. (now codified as amended at 40 U.S.C. § 101 et seq.). The district court found preemption, granted declaratory relief, and issued a permanent injunction barring enforcement of the order. It didn’t reach the Procurement Act question, but the plaintiffs raise it here as an alternative ground for affirmance. Finding both of plaintiffs’ theories to be flawed, we reverse and remand for the district court to grant summary judgment in favor of the government.
As the issues relate solely to summary judgment, we review de novo. See Indep. Bankers Ass’n v. Farm Credit Admin., 164 F.3d 661, 666 (D.C.Cir.1999).
Federal labor law preemption falls into two categories, Garmon and Machinists
We first consider the government’s suggestion that our preemption analysis should be less intrusive because the order only imposes a contract condition, and firms can choose to do business elsewhere. But at least in labor law, preemption applies to rules of the federal executive even when the government is acting as a purchaser of goods, as long as the government action is classified as regulatory rather than proprietary. See Chamber of Commerce v. Reich, 74 F.3d 1322, 1334, 1336-37 (D.C.Cir.1996); Bldg. & Constr. Trades Dep’t v. Allbaugh, 295 F.3d 28, 34 (D.C.Cir.2002). A clause is likely to be found regulatory where it apparently “seeks to set a broad policy.” Chamber of Commerce, 74 F.3d at 1337. Here, the government doesn’t explicitly argue that its actions are proprietary, but notes occasionally that it is only inserting conditions into a contract that businesses voluntarily accept. But as the order operates on government procurement across the board, •rather than being tailored to any particular setting, the order is regulatory under prevailing principles. See id. at 1336-37.
As we’ve said, Garmon preempts state (or here, federal executive) regulation of “activities [that] are protected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8.” Garmon, 359 U.S. at 244, 79 S.Ct. at 779. The district court misconceived this doctrine. It said that under Garmon “[t]he question is not whether the NLRA prohibits employers from posting Beck/Ge^erai Motors notices ... but whether the NLRA prohibits requiring employers to post the notices.” District Court Opinion at 14. The NLRB had ruled in Rochester Manufacturing Co., 323 N.L.R.B. 260, 1997 WL 113885 (1997), that it was not an unfair labor practice for an employer to say nothing to employees about their Beck rights, id. at 262, and the district court read Rochester Manufacturing as meeting its (misformulated) test. But the question under Garmon is whether the “activities” are protected or prohibited. 359 U.S. at 244, 79 S.Ct. at 779; see also Wisconsin Dep’t of Indus. v. Gould Inc., 475 U.S. 282, 286, 106 S.Ct. 1057, 1061, 89 L.Ed.2d 223 (1986) (“States may not regulate activity that the NLRA protects, prohibits, or arguably protects or prohibits.”) (emphasis added). Under the district court’s approach every activity deemed by the Board not to be an unfair labor practice would be preempted, even though the Board had said no more than that the NLRA didn’t speak to the matter at all.
The dissent makes a similar error when it suggests that the order is
In the passage from Gould quoted above, the Court said (as indeed it had in Garmon, 359 U.S. at 245, 79 S.Ct. at 779-80) that Garmon preemption applies even to activities that are only “arguably” protected or prohibited by the NLRA. Plaintiffs note that in Rochester Manufacturing the General Counsel in fact argued that not posting Beck rights was an unfair labor practice. Assuming that a ruling accepting the General Counsel’s position would survive deferential judicial review, it must follow, they say, that non-posting is “arguably” prohibited. (They make no claim that posting is arguably an unfair practice.) But International Longshoremen’s Association v. Davis, 476 U.S. 380, 394-98, 106 S.Ct. 1904, 1914-16, 90 L.Ed.2d 389 (1986), indicates that the Board’s actual decision controls; even if “there is an arguable case for preemption,” the court “must defer to the Board, and only if the Board decides that the conduct is not protected or prohibited,” is the regulation preemption-free. Id. at 397, 106 S.Ct. at 1916. See also id. at 395, 106 S.Ct. at 1914 (saying that the party claiming pre-emption must “advance an interpretation of the Act that is not plainly contrary to its language and that has not been ‘authoritatively rejected’ by the courts or the Board”) (emphasis added); Hanna Mining Co. v. Dist. 2, Marine Eng’rs Beneficial Ass’n, 382 U.S. 181, 190, 86 S.Ct. 327, 332, 15 L.Ed.2d 254 (1965) (“We hold that the Board’s statement [that the engineers were supervisors and thus not subject to the NLRA] does resolve the question with the clarity necessary to avoid preemption.”) (emphasis added). Here the Board has decided that the activity is not prohibited. Of course a consequence may be that a reversal of position by the Board (if permissible) will entail a reversal of this outcome on preemption, but that is a consequence plainly contemplated in the Court’s conclusion in Davis that a Board decision can resolve what is “arguable” for Garmon purposes. As a result, there is little basis for the dissent’s concern that the Executive Order “would shift these decisions away from the Board.” See Dissent at 368.
Garmon preempts not only regulation of activities arguably prohibited by the NLRA, but also regulation of ones arguably protected. Plaintiffs and our dissenting colleague argue that precisely such an activity is in question here — the employer’s right to speak, protected by § 8(c) of the Act:
The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this sub-chapter, if such expression contains no threat of reprisal or force or promise of benefit.
29 U.S.C. § 158(c). We consider this speech argument only in the context of preemption; plaintiff raises no free-standing First Amendment claim.
Of course Garmon’s own expression of its scope limits its preemption to activities that are arguably “protected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8.” 359 U.S. at 244, 79 S.Ct. at 779. Fitting a Garmon claim under the language of
Nonetheless, because the Supreme Court has rather ambiguously invoked § 8(c) in determining whether state libel laws were subject to Garmon preemption (and finding that they were in some circumstances), Linn v. United Plant Guard Workers, 383 U.S. 53, 58 n. 3, 62-63, 86 S.Ct. 657, 661 n. 3, 662-63, 15 L.Ed.2d 582 (1966),
Section 8(c) “implements the First Amendment” in the labor relations area. NLRB v. Gissel Packing Co., 395 U.S. 575, 617, 89 S.Ct. 1918, 1941, 23 L.Ed.2d 547 (1969). And the First Amendment includes not only the right to speak, but also the right not to speak. See Riley v. Nat’l Fed’n of the Blind, 487 U.S. 781, 796-97, 108 S.Ct. 2667, 2677-78, 101 L.Ed.2d 669 (1988). But this is as far as plaintiffs’ arguments can take them; even assuming that the § 8(c) right includes the right not to speak, an employer’s right to silence is sharply constrained in the labor context, and leaves it subject to a variety of burdens to post notices of rights and risks. See, e.g., Nat’l Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d 104, 113-16 (2d Cir.2001) (hazard labeling law); Lake Butler Apparel Co. v. Sec’y of Labor, 519 F.2d 84, 89 (5th Cir.1975) (posting of OSHA notice). Thus the dissent understandably offers no argument that employers’ silence as to Beck rights is in fact protected (or even arguably protected). Its suggestion that the Board somehow acknowledged or created such a right in Rochester, see Dissent at 368, is perplexing, as the Board found only that it was not an unfair labor practice for the employer to not post the rights, see Rochester, 323 N.L.R.B. at 262, not that there was a right to silence or any § 8(c) protection. Thus the plaintiffs have pointed to no specific right covered by the order that is “arguably protected by the NLRA.”
Finally, both the district court and the plaintiffs invoke language from our decision in Chamber of Commerce. There we struck down an executive order barring employers who contracted with the government from hiring permanent replacements, finding it preempted under Machinists because hiring permanent replacements' was among the “economic weapons” that Congress intended the NLRA would leave in the hands of unions or management, as the case might be. 74 F.3d at 1334. In fact, .Machinists mentioned hiring of permanent replacements as just such a weapon. 427 U.S. at 153, 96 S.Ct. at 2559. Here of course no one suggests that Machinists applies at all. In a paragraph at the end of Chamber of Commerce, however, the court said that “it appeared]” that the
Plaintiffs also point to a footnote in Chamber of Commerce, where we said:
We are also dubious that President Bush’s Executive Order 12,800, which required government contractors to post notices informing their employees that they could not be required to join or remain a member of a union, was legal. It may well have run afoul of Garmon preemption which reserves to NLRB jurisdiction arguably protected or prohibited conduct.
74 F.3d at 1337 n. 10 (emphasis added). This of course refers to the Beck order issued by the first President Bush, which no one claims is materially different (for present purposes) from that of the current President. But we decided Chamber of Commerce before Rochester Manufacturing, where the Board rejected the claim that an employer committed an unfair labor practice by failing to post a Beck notice. 323 N.L.R.B. at 262. Until Rochester Manufacturing, therefore, under the framework set by Davis, that position was “arguable” and thus likely subject to Gar-mon preemption. We also note that the footnote is attached to an extensive discussion about whether the disputed executive order was regulatory or proprietary, and thus appears mainly to suggest that the court would also have classified the Beck order as regulatory; we agree.
As an alternative ground for affirmance the plaintiffs argue that the order is not within the President’s authority under the Procurement Act. That act authorizes him to “prescribe such policies and directives, not inconsistent with the provisions of this Act, as he shall deem necessary to effectuate the provisions of said Act.” 40 U.S.C. § 486(a) (2000) (now codified as amended at 40 U.S.C. § 121). In AFL-CIO v. Kahn, 618 F.2d 784 (D.C.Cir. 1979), we read this as requiring that the executive order have a “sufficiently close nexus” to the values of providing the government an “ ‘economical and efficient system for ... procurement and supply.’ ” Id. at 788, 792 (quoting 40 U.S.C. § 471 (now codified as amended at 40 U.S.C. § 101)). We emphasized the necessary flexibility and “broad-ranging authority” that we understood the Act to give the President. Id. at 789. And in fact we found the nexus test satisfied. Although the order required the government to prefer a high bid to a low one, where the low bidder was not in compliance with the government’s price and wage guidelines, we accepted the proposition that the order would induce companies to comply, thereby slowing inflation, so that “the Government will face lower costs in the future.” 618 F.2d at 792-93.
Here the executive order sought to connect its requirements to economy and efficiency as follows:
When workers are better informed of their rights, including their rights under the Federal labor laws, their productivity is enhanced. The availability of such a workforce from which the United States may draw facilitates the efficient and economical completion of its procurement contracts.
Executive Order 13201, § 1(a), 66 Fed. Reg. at 11,221, 2001 WL 169257. The link may seem attenuated (especially since unions already have a duty to inform employees of these rights), and indeed one can
We reverse the district court’s grant of summary judgment for the plaintiffs. As they asserted only the Garmon and Procurement Act claims against the lawfulness of the order, the district court on remand should grant summary judgment in favor of the government.
Reversed and remanded.
. The Court’s opinion is unclear whether Gar-mon preemption applied because the speech in question was an activity arguably prohibited by the NLRA, so that § 8(c) simply limited the scope of, but was not a source of, preemption; or whether the speech in question was arguably “protected" by the NLRA.
Dissenting Opinion
dissenting:
Under Executive Order 13201, 2001 WL 169257, a party, and all its subcontractors, contracting with the federal government must provide notice to its employees of their Beck and General Motors rights
When the Supreme Court held in Wisconsin Department of Industry v. Gould, 475 U.S. 282, 106 S.Ct. 1057, 89 L.Ed.2d 223 (1986), that a state statute debarring repeat NLRA offenders from doing business with the State was preempted by the NLRA, the Court explained that Garmon preemption prevents the States from “setting forth standards of conduct inconsistent with the substantive requirements of the NLRA, [and] also from providing their own regulatory or judicial remedies for conduct prohibited or arguably prohibited by the Act.” Id. at 286, 106 S.Ct. at 1061. Concerned that there not be state standards that would interfere with Congress’ “integrated scheme of regulation,” the Court rejected the notion that “a supplemental remedy is different in kind from those that may be ordered by the Board” and would do no harm. Id. at 287, 106 S.Ct. at 1061. The focus, the Court explained, was on the activities, not the method of regulation. Id.
Union-security clauses and activities related to them fall squarely within the regulatory scope of the NLRA. See §§ 7, 8(a)(3), (b)(2), (f), 29 U.S.C. §§ 157, 158(a)(3), (b)(2), (f). The Supreme Court acknowledged that “federal concern is pervasive and its regulation complex” in this area, Amalgamated Association of Street, Electric Railway & Motor Coach Employees v. Lockridge, 403 U.S. 274, 296, 91 S.Ct. 1909, 1923, 29 L.Ed.2d 473 (1971), and this court observed in Thomas v. NLRB, 213 F.3d 651 (D.C.Cir.2000), that, as a consequence, “[a]ll the details necessary to make the rule of Beck operational were left to the Board, subject to the very light review authorized by Chevron[, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)].” Id. at 657 (quoting Int’l Ass’n of Machinists & Aerospace Workers v. NLRB, 133 F.3d 1012, 1016 (7th Cir.), cert. denied sub nom. Strang v.
Executive Order 13201, 2001 WL 169257, by imposing a requirement on employers about what they must say in the context of unionsecurity clauses and establishing remedies for noncompliance, would shift these decisions away from the Board. This runs afoul of Garmon’s recognition of Congress’ choice of the Board to implement the NLRA. See Bldg. & Constr. Trades Council v. Associated Builders & Contractors, 507 U.S. 218, 225, 113 S.Ct. 1190, 1194-95, 122 L.Ed.2d 565 (1993); Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 748-49 & n. 26, 105 S.Ct. 2380, 2394 & n. 26, 85 L.Ed.2d 728 (1985). The conflict that Garmon preemption seeks to avoid is evident by comparing the regulatory scheme envisioned in Executive Order 13201, 2001 WL 169257, with its posting requirement on penalty of debarment, and an employer’s right under the NLRA, as interpreted by the Board in Rochester Manufacturing Co., 323 N.L.R.B. 260, 1997 WL 113885 (1997), to speak or not to speak about Beck rights. In rejecting the General Counsel’s position that the employer’s failure to advise employees of Beck rights was an unfair labor practice, the Board in Rochester Manufacturing determined that under the NLRA the employer has no duty to inform its employees of their rights under Beck, declining to hold that an employer had an “affirmative obligation,” comparable to the union’s duty of fair representation, “to spell out for employees the precise extent of the union-security obligation.” Rochester Mfg., 323 N.L.R.B. at 262. Executive Order 13201, 2001 WL 169257, on the other hand, would force employers to surrender one of the speech options left open by the Board in Rochester Manufacturing or risk imposition of a draconian penalty, in conflict with the primary jurisdiction of the Board to decide whether an activity is lawful under §§ 7 and 8 of the NLRA, regardless of whether the Board has exercised its jurisdiction. See Garmon, 359 U.S. at 245, 79 S.Ct. at 779-80; Chamber of Commerce v. Reich, 74 F.3d 1322, 1337 n. 10 (D.C.Cir.1996); see also Washington Serv. Contractors Coalition v. District of Columbia, 54 F.3d 811, 815-16 (D.C.Cir.1995). As the plaintiffs point out, the court has acknowledged the broad scope of preemption under Garmon, see Chamber of Commerce, 74 F.3d at 1334, and has rejected a crabbed conception of “consistency” and thus any suggestion that the employer’s foregoing one of two permissible options under Executive Order 13201, 2001 WL 169257 creates no Garmon conflict.
The court rejects this approach relying on International Longshoremen’s Association v. Davis, 476 U.S. 380, 394-98, 106 S.Ct. 1904, 1914-16, 90 L.Ed.2d 389 (1986). Opinion at 363-364. Because the Board rejected the position that non-posting of Beck rights was an unfair labor practice, it follows, the court says, that there is no basis to suggest that non-posting is “arguably” prohibited, for the Board in Rochester Manufacturing “has decided that the activity is not prohibited.” Opinion at 364. But this is a sleight of hand, for the court’s approach ignores the conflict that Executive Order 13201, 2001 WL 169257 would create with the regulatory scheme for union-security clauses that the Board has established, namely a scheme in which the employer may or may not inform its employees about Beck rights.
In rejecting the plaintiffs’ alternative claim that Executive Order 13201, 2001 WL 169257 is preempted because it regulates activity protected or arguably protected by § 8(c), the court focuses on the hole in the donut and ignores the donut itself, stating that “[flitting a Garmon claim under the language of § 8(c) is awkward.” Opinion at 364. The Supreme
The court finds ambiguity in Linn, Opinion at 365 & n.l, notwithstanding the fact that the Linn Court was clear that § 8(c) reflected Congress’ goal of promoting robust and wide-open debate in the context of labor relations and that the application of state libel laws would interfere with this goal. See Linn, 383 U.S. at 62, 86 S.Ct. at 662-63; see also id. at 58 n. 3, 86 S.Ct. at 661 n. 3. While not expressly stating that Garmon preemption applied because § 8(c) protects an employer’s free speech lights, this reasoning is implicit in Linn. To the extent there may be doubt, the Supreme Court has plainly spoken elsewhere that § 8(c) protects the employer’s First Amendment right to express its views about unionism. See NLRB v. Gissel Packing Co., 395 U.S. 575, 617-18, 89 S.Ct. 1918, 1941-42, 23 L.Ed.2d 547 (1969). That Linn was only partially relying on § 8(c) has not deterred the Supreme Court from applying Linn to labor disputes “in a context where the policies of the federal labor laws leading to protection for freedom of speech are significantly implicated.” Old Dominion Branch No. 496 v. Austin, 418 U.S. 264, 279, 94 S.Ct. 2770, 2778, 41 L.Ed.2d 745 (1974); see id. at 271-73, 276-79, 94 S.Ct. at 2774-76, 2777-79. In sum, the hole - arising from the fact that the language of § 8(c) protects employers’s speech rights from the NLRA, see Opinion at 364-365 does not eviscerate the donut, which consists of the broad protection of employer speech under § 8(c), as is reflected in the Board’s determination that as to Beck rights the employer has no duty under the NLRA to speak or not to speak.
Assuming protection of employer speech rights under § 8(c), the court concludes that Executive Order 13201, 2001 WL 169257’s posting requirement is not unlike other federal posting requirements imposed on employers. Opinion at 365 (citing Nat’l Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d 104, 113-16 (2d Cir.2001); Lake Butler Apparel Co. v. Sec’y of Labor, 519 F.2d 84, 89 (5th Cir.1975)). .The plaintiffs do not claim that the employer’s speech rights under § 8(c) are absolute; to the contrary. Appellees’ Br. at 29. But Executive Order 13201, 2001 WL 169257 is different from the posting requirements cited by the court. Unlike cases not within the regulatory authority of the Board where impositions on the employer’s speech rights have been upheld, Opinion at 365, the courts have recognized that the implementation of Beck and General Motors rights is a matter “left to the Board.” See Thomas, 213 F.3d at 657. The Board in Rochester Manufacturing preserved the employer’s right under the NLRA to speak or not to speak on this issue. Like the state defamation law preempted in Linn, Executive Order 13201, 2001 WL 169257 would pun
. Communications Workers v. Beck, 487 U.S. 735, 754-63, 108 S.Ct. 2641, 2653-58, 101 L.Ed.2d 634 (1988); see also NLRB v. Gen. Motors Corp., 373 U.S. 734, 739-45, 83 S.Ct. 1453, 1457-61, 10 L.Ed.2d 670 (1963).