Alameda Newspapers, Inc. v. City of Oakland, 94-16513

Citation95 F.3d 1406
Decision Date13 September 1996
Docket NumberNo. 94-16513,94-16513
Parties153 L.R.R.M. (BNA) 2257, 65 USLW 2202, 96 Cal. Daily Op. Serv. 6842, 96 Daily Journal D.A.R. 11,247 ALAMEDA NEWSPAPERS, INC., Plaintiff-Appellee, v. CITY OF OAKLAND, et al., Defendants-Appellants, Northern California Newspaper Guild, Local 52, Newspaper Guild, Intervenor-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Paul H. Duvall, King & Ballow, San Diego, CA, for plaintiff-appellee Alameda Newspapers, Inc.

Duance B. Beeson, Beeson, Tayer & Bodine, San Francisco, CA, for defendant-intervenor-appellant Northern California Newspaper Guild, Local 52.

Appeal from the United States District Court for the Northern District of California, Charles A. Legge, District Judge, Presiding. D.C. No. CV-93-03500-CAL.

Before: BOOCHEVER and REINHARDT, Circuit Judges, and KING, District Judge. *

REINHARDT, Circuit Judge:

Today we decide whether preemption law compels a City, against its wishes, to patronize a newspaper company embroiled in a bitter and divisive labor dispute with its employees. Our answer is that it does not. Specifically, we hold that the City of Oakland may determine as a matter of principle not to do business with Alameda Newspapers, Inc. during the course of a labor boycott, and that the City Council may suggest that the residents of Oakland do likewise. Although a City cannot regulate in an area governed by federal labor law or that Congress intended to be controlled solely by market forces, the City did not act in a regulatory manner in this case. The City Council simply proclaimed its views regarding the plight of the work force of the Oakland Tribune, announced its concern over the substantial loss of jobs both to the City and at the newspaper, and went on public record in support of the boycott. It also used its moral suasion to urge its citizens to back the boycott. Finally, the City determined to cancel its thirteen-odd subscriptions to the newspaper and to place its official advertising in other publications in the future. The district court held, on summary judgment, that the City's actions were preempted and issued an injunction. We disagree. Accordingly, we reverse the judgment and vacate the injunction.

I. Background

In the fall of 1992, Alameda Newspapers, Inc. (ANI) purchased the Oakland Tribune, terminated the paper's contracts with approximately nine unions, and dismissed more than 400 of the Tribune's 600 employees. It also moved the printing operation out of Oakland and relocated it to Hayward, California. In April of 1993, the Newspaper Guild 1 and other unions comprising the Conference of Newspaper Unions launched a boycott of the Tribune and the other Alameda Newspaper Group publications with the help of the Alameda Central Labor Council, an affiliate of the AFL-CIO. 2 Backers of the boycott appealed to the community for support. As part of its campaign, the Guild asked the Oakland City Council to endorse the boycott and terminate the City's business relationship with the Tribune.

On September 14, 1993, the Council passed the resolution that is at the heart of this appeal, No. 70367 C.M.S. That resolution reads:

A RESOLUTION ENDORSING THE BOYCOTT OF THE OAKLAND TRIBUNE AND OTHER ALAMEDA NEWSPAPER GROUP PUBLICATIONS UNTIL THE LABOR DISPUTE IS RESOLVED

WHEREAS, last fall, Texas-based Garden State Newspapers, Inc., publisher of Alameda Newspaper Group publications, purchased the Oakland Tribune, ending a century-long tradition of hometown ownership of the Tribune, and

WHEREAS, the City of Oakland has in the past designated the Oakland Tribune as the newspaper of record for the City of Oakland's official notices; and

WHEREAS, the Oakland Tribune is no longer printed and published in the City of Oakland as is required by City Charter of the City's newspaper of record; and

WHEREAS, the new owners of the Oakland Tribune have embarked on a course of anti-labor conduct, including:

Eliminating some 500 Oakland jobs at the time of purchase of the Tribune, and eliminating some 130 jobs at the time of the initial purchase of ANG;

Refusing to recognize the jurisdiction of Teamsters Mailers Local 15 and Drivers Local 296;

Refusing after six years at the bargaining table to settle a first contract with [the Guild] for editorial employees at five ANG publications;

Offering at the bargaining table less than one-half the journeyman pay rate for experienced editorial employees; refusing to guarantee health and welfare coverage to these employees, and refusing to agree to union security provisions that are standard in California private sector contracts; and

Issuing a falsified government document after Cal/OSHA investigated the high incidence of job injury complaints in ANG newsrooms; and

WHEREAS, the Central Labor Council of Alameda County, AFL-CIO has initiated a boycott of the Oakland Tribune and other Alameda Newspaper Group publications; now, therefore, be it

RESOLVED: That the City of Oakland open up the process to select the official newspaper of the City; and, be it

FURTHER RESOLVED: That the Oakland City Council endorse the boycott of the Oakland Tribune and other Alameda Newspaper Group publications; and, be it

FURTHER RESOLVED: That the City Council urges all citizens of Oakland to stop purchasing and advertising in the Oakland Tribune and Alameda Newspaper Group publications until the labor dispute is successfully concluded.

Immediately after adopting the resolution, the council passed a separate voice resolution directing City officials to discontinue all official advertising in the Tribune and to cancel the City's subscriptions to that newspaper. In all, the City cancelled about 13 subscriptions. The projected loss of the City's advertising was approximately $40,000 per year in gross revenue, although due to an earlier resolution the advertising might have been discontinued in any event. 3

ANI filed an action later that month, naming the City, the council, and the council members as defendants. ANI alleged that the two resolutions were preempted by the National Labor Relations Act, 29 U.S.C. §§ 151-169, and the Supremacy Clause. It also contended that the City had violated 42 U.S.C. § 1983 by depriving ANI of its rights under the First and Fourteenth Amendments of the U.S. Constitution. ANI sought injunctive, declaratory, and monetary relief, including $5 million in punitive damages. The Newspaper Guild submitted an amicus brief in support of the City.

The parties filed cross-motions for summary judgment. On April 29, 1994, the court issued an Opinion and Order in favor of ANI. The court did not enter judgment, however, pending a status conference on the issue of damages. The parties subsequently settled that issue and the question of attorneys' fees themselves. On July 27, 1994, the Court entered the Amended Opinion and Order that is the subject of this appeal.

In its amended opinion, the court held that the resolutions were regulatory rather than proprietary, and thus subject to preemption. The court then turned to whether the resolutions were preempted under Garmon or Machinists. 4 The court found that the resolutions were violative of Machinists because they were "an attempt by the City to interfere in the 'free play of economic forces.' " Although the court appeared to find Garmon preemption, as well, it noted that it "need not go so far as to find preemption under Garmon, because of the clear application of the Machinists doctrine." After concluding that the City was not sufficiently "interested" in the labor dispute to come within the Norris-LaGuardia Act's prohibition on injunctions, the court permanently enjoined the defendants from endorsing the boycott as well as from 1) replacing the Tribune as the newspaper of record for the City's official notices; 2) cancelling Tribune subscriptions; or 3) purchasing any print media advertising space or subscriptions for the City in a publication other than the Tribune "because of any labor dispute subject to the NLRA and involving [ANI]." The court also ordered the defendants to reinstate Tribune subscriptions that they had cancelled because of the labor dispute.

After the issuance of the court's original Opinion and Order, but before the entry of the final order, the Guild moved to intervene as a defendant. The court granted the motion, and the Guild subsequently filed a timely notice of appeal of the final judgment. The City defendants did not appeal.

II. A Preliminary Matter

ANI argues that the Guild cannot meet the actual injury requirement of Article III and urges us to dismiss this appeal for lack of jurisdiction. ANI contends that the legal dispute was between ANI and the City, and that the court's decision and the accompanying injunction did not affect the Guild directly. Thus, ANI argues, the Guild cannot show that it has "suffered some actual injury that can be redressed by a favorable judicial decision," GTE California, Inc. v. F.C.C., 39 F.3d 940, 945 (9th Cir.1994). 5

We have no doubt that the Guild has a sufficiently direct stake in the conflict and in the district court's decision to satisfy the injury requirement of Article III. The Guild has as much at stake in the litigation as either the plaintiff or the defendants. It is the Guild's boycott that is the source of the dispute between the parties. Under the district court's rationale the Guild is barred from seeking support for its boycott not only from the City of Oakland but from any state, county, city or other unit of government. As a result of the court's order, the City is required to patronize a business that is being boycotted by workers the Guild represents. 6 The Guild's interest in the outcome of the litigation is not just abstract, but immediate and tangible.

The Guild can meet Article III's "standing criteria by alleging a threat of particularized injury from the order [it] seek[s] to reverse that would be avoided or...

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