Opinion
98 Civ. 4998 (MBM)
October 3, 2000.
ALAN M. POLLACK, ESQ. Pollack Greene, LLP New York, NY, (Attorneys for Plaintiffs).
M. PATRICIA SMITH, ESQ., TERRI E. GERSTEIN, ESQ. Office of the Attorney General of the State of New York New York, NY, (Attorneys for Defendants).
OPINION AND ORDER
Plaintiffs are a group of electrical contractors, and their trade association and benefit fund. They sue the New York State Department of Labor (the "Department") and its Commissioner alleging violations of the Supremacy Clause of the United States Constitution and Section 1983 of the Civil Rights Act, 42 U.S.C. § 1983 (1994). Plaintiffs move under Fed.R.Civ.P. 65(a) for a preliminary injunction directing defendants, inter alia, to process an apprenticeship program application which plaintiffs have submitted to the Department. For the reasons set forth below, plaintiffs' motion for a preliminary injunction is denied.
I.
On April 1, 1999, plaintiffs applied to register an apprenticeship program with the Department. (Monez Aff. ¶ 13) Registration would enable plaintiffs, among other things, to pay reduced wages to apprentice workers on public works projects and submit bids on certain public works projects from which plaintiffs are now excluded. (Monez Aff. ¶ 8) In determining whether to approve or reject an application from employers like the one submitted by plaintiffs, the Department is required by New York's Labor Regulations to examine the "standards, collective bargaining agreement, or other instrument" which provide for participation by a union in the apprenticeship program. See N.Y. Comp. Codes R. Regs. tit. 12, § 601.4 (g). If the standards, collective bargaining agreement, or other instrument provide for union participation in the program, then the Department must ask the union if it has any objection to the application. Id. If no union participation is provided for, the Department is required only to send a copy of the application to the union, if any, and offer the union an opportunity to comment.Id. A collective bargaining agreement ("CBA") providing for a jointly administered apprenticeship program ("Joint Program") had been in place between plaintiffs and Local 363. (Drago Aff. ¶ 19) That CBA expired in 1994. (Drago Aff. ¶ 15)
Local 3 was certified to replace Local 363 as the collective bargaining agent of plaintiffs' employees pursuant to a February 23, 1993 Order of the National Labor Relations Board. (Monez Aff. ¶ 9)
In a letter dated November 22, 1999, the Department notified plaintiffs that the Department would neither approve nor deny plaintiffs' application until their negotiations with Local 3 regarding the terms of a new CBA were completed. (Monez Aff. ¶ 15) In a subsequent letter dated December 2, 1999, the Department sought to clarify its position, stating that the Department would keep the application on file until the National Labor Relations Board ("NLRB") determined whether plaintiffs' application constituted a "unilateral change in the terms and conditions of a collective bargaining agreement." (Monez Aff. ¶ 16) There were no claims relating to plaintiffs' application or its negotiations with Local 3 pending before the NLRB at the time of the Department's letters, nor, so far as I am aware, are there any such claims pending now. (Monez Aff. ¶ 17).
Plaintiffs move for a preliminary injunction directing the Department and its Commissioner to process plaintiffs' application. (Compl. ¶ 1) Plaintiffs allege that the Department's inaction in this case is barred by the National Labor Relations Act (NLRA) and violates Section 1983 of the Civil Rights Act, 42 U.S.C. § 1983. (Compl. ¶¶ 49-67) In response, the Department argues that processing plaintiffs' application is itself barred by the NLRA.
II.
Generally, to obtain a preliminary injunction, a plaintiff must demonstrate (1) irreparable harm and (2) either (a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the merits of the case and a balance of hardships tipping decidedly in the plaintiff's favor. Brewer v. West Irondequoit Cent. School Dist., 212 F.3d 738, 743-44 (2d Cir. 2000). However, when the injunction "seeks to prevent government action taken pursuant to statutory authority, which is presumed to be in the public interest," the balance of hardships standard is not available. Molloy v. Metro. Transp. Auth., 94 F.3d 808, 811 (2d Cir. 1996). The New York Commissioner of Labor, through the Department, regulates apprenticeship training programs pursuant to Article 23 of New York's Labor Law. See e.g. N.Y. Labor Law § 811 (McKinney 1988) (granting the Commissioner power to, inter alia, establish standards for, register and supervise apprenticeship agreements). The decision to delay processing plaintiffs' application was an action made pursuant to the Commissioner's statutory authority. Therefore, to obtain a preliminary injunction plaintiffs must show (1) irreparable harm, and (2) a likelihood of success on the merits. See Statharos v. New York City Taxi Limousine Comm'n, 198 F.3d at 317, 321 (2d Cir. 1999). Plaintiffs have failed to meet their burden under both prongs of this test.
The Department argues that, because plaintiffs seek a mandatory preliminary injunction, plaintiffs must demonstrate a "clear or substantial likelihood on the merits." (Def. Mem. at 16) Because plaintiffs have failed to demonstrate even a likelihood of success on the merits, I need not consider whether the more burdensome standard suggested by the Department should apply to plaintiffs' motion.
A. Irreparable Harm
To establish irreparable harm in this Circuit, plaintiffs must demonstrate an injury that is neither remote nor speculative, but actual and imminent. Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 976 (2d Cir. 1989). Here, plaintiffs have failed to demonstrate that the harm they will suffer is sufficiently imminent to warrant preliminary injunctive relief. Plaintiffs argue that they are irreparably harmed because they "are being forced to capitulate to Local 3's demands if they want the Labor Department to even consider their application." (Pl. Mem. at 24) However, plaintiffs have not had a registered apprenticeship program in place since 1994. (Drago Aff. ¶¶ 17-33) Thus, requiring plaintiffs to wait until trial to prove their claim would impose only a minimal burden on them. Moreover, plaintiffs have not negotiated with Local 3 since June of 1998, (Monez Aff., Exh. D), nor have they indicated whether or when negotiations will resume. Accordingly, plaintiffs have failed to establish that the Department's refusal to process their application will cause plaintiffs imminent harm or, as plaintiffs suggest, force them "to capitulate to Local 3's demands" between now and the time of trial.
B. Likelihood of Success on the Merits
Plaintiffs also have failed to demonstrate a likelihood of success on the merits. Plaintiffs allege that the Department's inaction in this case is barred by the NLRA under principles of preemption, and violates Section 1983 of the Civil Rights Act, 42 U.S.C. § 1983. (Compl. ¶¶ 49-67) The United States Supreme Court has established two distinct NLRA preemption principles. The first, known as "Garmon preemption," forbids state and local regulation of activities that are "protected by § 7 of the [NLRA] or constitute an unfair labor practice under § 8." San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 244 (1959). Garmon preemption prohibits state and local regulation even of activities that the NLRA only arguably protects or prohibits. See Wisconsin Dept. of Indus. v. Gould Inc., 475 U.S. 282, 286 (1986).
The second preemption principle, known as "Machinists preemption," prohibits state and municipal regulation of areas that have been left by Congress "to be controlled by the free play of economic forces." Lodge 76, Int'l Ass'n. of Machinists and Aerospace Workers v. Wisconsin Employment Relations Comm'n, 427 U.S. 132, 140 (1976). In Machinists, the Court held that the Wisconsin Employment Relations Commission could not designate as an unfair labor practice under state law a concerted refusal by a union and its members to work overtime, because Congress did not intend such self-help activity to be subject to state regulation. Id. at 148-150. As the Supreme Court has explained, "Machinists preemption preserves Congress' `intentional balance between the uncontrolled power of management and labor to further their respective interests.'" Bldg. and Constr. Trades Council of the Metropolitan District v. Associated Builders and Contractors of Mass./Rhode Island, Inc., 507 U.S. 218, 226 (1993) (guoting Golden State Transit Corp. v. Los Angeles, 475 U.S. 608, 614 (1986)).
Plaintiffs argue that the Department's refusal to process plaintiffs' application is preempted under Machinists and its progeny. According to plaintiffs, "[b]y refusing to decide the Application until bargaining negotiations are completed, the Labor Department has frustrated the purpose of the NLRA and unlawfully `[entered] into the substantive aspects of the bargaining process to an extent Congress has not countenanced.'" (Pl. Mem. at 14) (citing Lodge 76, Int'l Ass'n. of Machinists and Aerospace Workers v. Wisconsin Employment Relations Comm'n, 427 U.S. 132, 149 (1976)) In essence, plaintiffs accuse the Department of trying to force them to conclude a CBA with the union.
Plaintiffs also argue that the Department's conduct is preempted under Garmon. (Pl. Mem. at 14) According to plaintiffs, "[j]ust as it is certain that the Labor Department will condition approval of the Apprenticeship Program on Local 3's assent, it is equally certain that the Labor Department will consider, as an alternative basis for rejection, Local 3's [prior] allegations that the Plaintiff Contractors violated the NLRA." (Pl. Mem. at 21) This argument is premised on plaintiffs' speculation about what the Department will do if and when plaintiffs' application is processed. Because the Department has not yet rendered a decision with respect to plaintiffs' pending application, plaintiffs' Garmon preemption argument is not ripe.
Plaintiffs rely mainly on two cases to support their Machinists argument. The first, Golden State, involved a suit by a taxi cab franchise against the city of Los Angeles. The city refused to renew the plaintiff's operating license unless the plaintiff resolved a labor dispute with its employees. The Court held that the city was preempted from conditioning the renewal of the operating license on settlement of the labor dispute, reasoning that "the bargaining process was thwarted when the city in effect imposed a positive durational limit on the [employer's] exercise of economic self-help." Golden State, 475 U.S. at 615.
Plaintiffs also rely on Livadas v. Bradshaw, 512 U.S. 107 (1994). In Livadas, a discharged union employee brought a § 1983 claim against the state labor department seeking enforcement of a state statute requiring the immediate payment of wages to a discharged employee. The labor department refused to enforce the statute on the ground that such enforcement would have required the department to interpret and apply the employee's collective bargaining agreement, an activity which was itself preempted by § 301 of the Labor Management Relations Act, 42 U.S.C.A. § 185(a) The Court rejected the department's preemption argument, noting that "the bare fact that a collective-bargaining agreement will be consulted in the course of a state-law litigation plainly does not require the claim to be extinguished." Livadas, 512 U.S. at 124. However, the Court held that the labor department's refusal to enforce the state statute was preempted under the NLRA and that the discharged employee had stated a valid claim under 42 U.S.C. § 1983. The Court explained that the labor department's policy was preempted because it left the plaintiff with an "unappetizing choice" of either having state law rights enforced or exercising the federally-protected right to enter into a collective bargaining agreement. Id. at 117.
Applying the principles of Golden State and Livadas to the instant case, plaintiffs argue that the Department's refusal to process plaintiffs' application impermissibly interferes with plaintiffs' negotiations with Local 3. As noted above, the Department has taken the position that it cannot process plaintiffs' application until either (1) a settlement with Local 3 is reached, or (2) a bargaining impasse is declared. (Monez Aff. ¶ 15) Plaintiffs argue that, as in Golden State, these conditions coerce plaintiffs either to expedite the negotiation process or to declare a bargaining impasse, and that the Department's policy therefore diminishes one of plaintiffs' weapons of economic self-help, namely continued negotiations in an attempt to obtain further bargaining concessions from Local 3.See Golden State, 475 U.S. at 608 (noting that employer is justified in using economic power to withstand strike in attempt to obtain bargaining concessions from union). Moreover, plaintiffs argue that, as in Livadas, the Department's policy predicates state benefits (i.e. the consideration of plaintiffs' application) on refraining from conduct protected by federal law. See Livadas, 512 U.S. at 115; see also Nash v. Florida Industrial Comm'n, 389 U.S. 235 (1967) (holding that state policy of withholding unemployment benefits solely because employee filed claim with NLRB was preempted).
Although plaintiffs' Machinists argument has some persuasive force, plaintiffs fall short of demonstrating a likelihood of success on the merits. First, as noted above, plaintiffs have not negotiated with Local 3 since June of 1998. (Monez Aff., Exh. D) Accordingly, unlike the plaintiff in Golden State, the damage to plaintiffs' economic weapons of self-help in their negotiation with Local 3 has been negligible. Moreover, in Golden State, the employer conditioned renewal of the plaintiff's operating license on the settlement of its labor dispute. See Golden State, 475 U.S. at 615. Here, the Department takes a less coercive posture, requiring either a settlement or an impasse before it can process plaintiffs' application.
The preemption argument advanced by the Department under Garmon also significantly undermines plaintiffs' position. According to the Department, processing plaintiffs' application would require it "to make determinations which arguably fall within the jurisdiction of the [NLRB], namely, determining the impact of a change in bargaining representative upon an expired [CBA], and determining whether the terms and conditions of an expired CBA remain in effect." (Def. Mem. at 2)
Under Garmon, state and local governments are prohibited from regulating activities that are "protected by § 7 of the [NLRA] or constitute an unfair labor practice under § 8."Garmon, 359 U.S. at 244. Garmon preemption prohibits state and local regulation even of activities that the NLRA only arguably protects or prohibits. See Wisconsin Dept. of Indus. v. Gould Inc., 475 U.S. 282, 286 (1986). As the Supreme Court explained inSears, Roebuck Co. v. San Diego County Dist. Council of Carpenters, 436 U.S. 180, 197 (1978), preemption under Garmon depends on whether the state is deciding a controversy "identical to or "different from" "that which could have been, but was not, presented to the [NLRB]."
Even if the NLRB fails to exercise jurisdiction or in some other way does not pursue the matter, "exclusive jurisdiction rests in the [NLRB] whenever `such activity is arguably within the compass of § 7 or § 8 of the [NLRA].'" Victory Sanitation, Ltd. v. Private Sanitation Union Local 813, 1993 WL 322830 (S.D.N.Y. Aug. 16, 1993) (citing Garmon, 359 U.S. at 246).
Here, the inquiry plaintiffs would impose on the Department appears to be significantly intertwined with questions within the exclusive jurisdiction of the NLRA. Plaintiffs would require the Department to determine whether to seek comment or objection from Local 3. See N.Y. Comp. Codes R. Regs. tit. 12, § 601.4 (g). To make this decision, the Department would have to decide whether the Joint Program provision contained in the expired CBA remains in effect post-expiration. To do that, the Department would have to examine whether the provision is a "mandatory" or a "permissive" subject of bargaining under the NLRA. If the provision is a mandatory subject, such provision must remain in effect until a bargaining impasse is reached. See Silverman v. Major League Baseball Player Relations Committee, Inc., 67 F.3d 1054, 1059 (2d. Cir. 1995) (citing NLRB v. Katz, 369 U.S. 736, 741-43 (1962)). If the provision is a permissive subject, it may be altered unilaterally by plaintiffs prior to a bargaining impasse. Id. Regardless of what the Department may conclude on this matter, its consideration of the mandatory or permissive nature of bargaining terms arguably "involves a risk of interference with the unfair labor practice jurisdiction of the [NLRB] which the . . . Garmon doctrine was designed to avoid."Sears, 436 U.S. at 197. Determining whether expired CBA provisions are permissive or mandatory subjects of bargaining is central to the NLRB's analysis of whether an employer has committed an unfair labor practice under Section 8(a)(5) of the NLRA, 29 U.S.C. § 158 (a)(5). See Katz, 369 U.S. at 743;Silverman, 67 F.3d at 1059 (explaining that an employer's "unilateral change" of mandatory subjects of bargaining prior to impasse constitutes an unfair labor practice). Accordingly, the Department may be preempted by the NLRA from making this determination.
It is well established that the NLRB has exclusive jurisdiction to determine whether an employer's conduct constitutes an unfair labor practice. See 29 U.S.C. § 160 (a);Garmon, 359 U.S. at 245.
To be sure, the Department's Garmon preemption argument is not unassailable. It is possible to read § 6Ol.4(g) to require only an examination of an effective CBA. Here, the terms of the CBA, to the extent they remain in effect, do so not by virtue of contract principles but by operation of the NLRA. Thus, by examining whether and to what extent the Joint Program provision of the expired CBA remains in effect under the NLRA, the Department is arguably moving outside the scope of what is required under § 601.4(g). However, the Department, by arguing that its decision-making power is preempted in this case, appears to be interpreting § 601.4(g) more broadly to apply not only to effective CBA's, but also to provisions of expired CBA's that remain in effect post-expiration. Because "an administrative agency's construction and interpretation of its own regulations and of the statute under which it functions is entitled to the greatest weight" under New York law, see Tommy Tina, Inc. v. Dep't of Consumer Affairs, 95 A.D.2d 724, 464 N.Y.S.2d 132 (1st Dep't 1983), aff'd 62 N.Y.2d 671, 476 N.Y.S.2d 290, 464 N.E.2d 988 (1984) (citation omitted), the Department'sGarmon preemption argument, although not unassailable, seems persuasive.
Fortunately, in order to deal with this motion, the court need not resolve which party has the better preemption argument. Because of the complex and novel questions of law presented by this case, as well as the force of the Department's preemption argument, plaintiffs have failed to demonstrate a likelihood of success on the merits.
* * *
For the above reasons, plaintiffs' motion for a preliminary injunction is denied.
SO ORDERED: