LOCAL 1564 v. City of Clovis, NM

Decision Date27 April 1990
Docket NumberNo. 89-896-M Civil.,89-896-M Civil.
PartiesNEW MEXICO FEDERATION OF LABOR, UNITED FOOD AND COMMERCIAL WORKERS UNION LOCAL 1564, Communications Workers of America, and International Brotherhood of Electrical Workers Local 611, Plaintiffs, v. CITY OF CLOVIS, NEW MEXICO, Defendant.
CourtU.S. District Court — District of New Mexico

Simon & Oppenhemier, Morton S. Simon, Jane Bloom Yohalem, Santa Fe, N.M., Laurence Gold, Washington, D.C., Marsha S. Berzon, Fred H. Altshuler, Altshuler and Berzon, San Francisco, Cal., for plaintiffs.

Hal Stratton, Atty. Gen., Terran W. Mast, Asst. U.S. Atty., Santa Fe, N.M., for State of N.M.

Garrett & Richards, Michael T. Garrett, Clovis, N.M., for defendant.

MEMORANDUM OPINION AND ORDER

MECHEM, Senior District Judge.

This matter came on for consideration on plaintiffs' motion for a preliminary injunction. Before the hearing on the preliminary injunction, the parties stipulated that the matter would involve only a declaratory judgment without a request for an injunction. A hearing was held on September 18, 1989. Having considered the motion and various responses and replies before and after the hearing, the evidence and arguments of counsel, the proposed findings of both parties, and being otherwise fully advised in the premises, I find that Ordinance No. 1345-89 enacted by the City of Clovis, New Mexico is invalid.

BACKGROUND

The defendant, City of Clovis, New Mexico, is a home rule municipality organized under the laws of the State of New Mexico. The New Mexico Constitution provides that a home rule municipality "may exercise all legislative powers and perform all functions not expressly denied by general law or charter." N.M. Const. Art. X, § 6(D). On May 4, 1989, the Clovis City Council passed a right-to-work ordinance (the Ordinance) which prohibits employers within Clovis from requiring, as a condition of employment, membership in a labor organization or payment of any dues, assessments, or other charges to a labor organization (union security provision). The Ordinance further prohibits employers from requiring any person to be referred by a labor organization as a condition of employment (hiring hall provision) or from deducting union dues, fees, assessments or other charges from wages unless the employee's authorization for such deductions can be revoked at any time (dues deduction provision). Any violation of the Ordinance is a misdemeanor subject to a fine of up to $900 or imprisonment of not more than 30 days or both.

This action is brought by a group of labor organizations whose various labor relationships in Clovis would be affected by the Ordinance. The organizations request that I declare the Ordinance invalid under the National Labor Relations Act, 29 U.S.C. § 151 et seq. (NLRA or the Act), and that I enjoin its enforcement. As discussed, this matter now involves only a declaratory judgment. Defendant agreed to stay enforcement of the Ordinance until a final decision is rendered, after appeal, if any, and defendant further agreed not to enforce any provision declared invalid.

On September 18, 1989, the parties stipulated that the hiring hall provision of the Ordinance is invalid as to labor relationships covered by the NLRA. The defendant conceded in its November 14, 1989 supplemental brief that the dues deduction provision in the Ordinance is likewise invalid under SeaPAK v. Industrial, Technical & Professional Employees, Division of Nat'l Maritime Union, 300 F.Supp. 1197 (S.D.Ga.1969), aff'd per curiam, 423 F.2d 1229, (5th Cir.1970), aff'd per curiam, 400 U.S. 985, 91 S.Ct. 452, 27 L.Ed.2d 434 (1971). Therefore, I am left to determine whether the union security provision of the Ordinance is valid.

DISCUSSION

The NLRA generally governs the bargaining process between private employers and the unions chosen by a majority of their employees to represent them. Under the NLRA, employers and unions are required to bargain collectively concerning "conditions of employment." 29 U.S.C. §§ 158(a)(5), 158(b)(3), 158(d), 159(a). One of the "conditions of employment" that Congress specifically permits employers and unions to bargain over is the union security agreement, as long as the agreement reached conforms to the provisions of § 8(a)(3) of the Act.1 The Ordinance would make all union security agreements unlawful, even those that conform to the strictures contained in § 8(a)(3).

The only exception in the NLRA to the federal regulation of union security agreements is § 14(b) of the Act, 29 U.S.C. § 164(b), which provides:

(b) Nothing in this subchapter shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.

The initial question for me to determine is whether, by enacting the NLRA generally, and § 8(a)(3) specifically, Congress has preempted the field of regulation of union security agreements such that § 14(b) of the Act is the sole source from which States derive their power to regulate union security agreements. Plaintiffs contend that is the case. Defendant, however, claims that Congress did not intend preemption but rather merely intended to continue the policy of the Act's predecessor, the Wagner Act, of deferring to the various states' labor policies, which may include referring the matter to local governmental subdivisions for determination. Defendant argues that because § 8(a)(3) was not intended to preempt the field, its Ordinance is valid. See Finman, Local "Right to Work" Ordinances: A Reply, 10 Stan. L.Rev. 53, 63 (1957).

Congress has the power to preempt state and municipal authority in a particular field. Wardair Canada, Inc. v. Florida Dept. of Revenue, 477 U.S. 1, 106 S.Ct. 2369, 91 L.Ed.2d 1 (1986). In determining whether federal legislation preempts state and local law, the test is one of Congressional intent. Id. at 6, 106 S.Ct. at 2372. Where the statutory language expressly prohibits states and municipalities from legislating in a particular area, preemption is manifest. Fidelity Federal Savings & Loan Ass'n v. De La Cuesta, 458 U.S. 141, 152-53, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982). Otherwise, preemption may be inferred from the pervasiveness of the federal scheme, e.g., White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980) or from where state or municipal law "stands as an obstacle to the accomplishment of the full purposes and objectives of Congress," e.g., Jones v. Rath Packing Co., 430 U.S. 519, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977).

The Congressional regulation of union security agreements is comprehensive and pervasive. See Retail Clerks Internat'l Ass'n Local 1625 AFL-CIO, et al. v. Schermerhorn, 375 U.S. 96, 100, 84 S.Ct. 219, 220-21, 11 L.Ed.2d 179 (1963). Section 8(a)(3) of the NLRA provides for specific conditions which must be met in order for an agreement to be valid. Congress intended to prohibit non-federal laws which would allow agreements impermissible under the Act. Finman, supra at 64, (citing H.R.Rep. No. 245, 80th Cong., 1st Sess. 9, 34 (1947); S.Rep. No. 105, 80th Cong., 1st Sess. 5-7 (1947)). This indicates to me that Congress intended an exclusive regulatory system and that § 8(a)(3) so thoroughly regulates the subject of union security agreements so as to preempt the matter from state legislation except to the extent specifically permitted under § 14(b) of the Act.

A myriad of local regulations would create obstacles to Congress' objectives under the NLRA. If the Ordinance is allowed to stand, other local governmental entities in New Mexico and presumably elsewhere could enact such ordinances, or different ordinances, concerning the same subject matter. The result would be a crazy-quilt of regulations within the various states. Defendant argues that by enacting § 14(b), Congress intended to "suffer a medley of attitudes and philosophies" on the subject of union security agreements. See Retail Clerks Internat'l Ass'n, supra, 375 U.S. at 104-05, 84 S.Ct. at 223-24. Defendant further contends that the fact that state right-to-work laws are inapplicable to federal enclaves within the states shows that there is no uniformity in the administration of union security agreements even within given states.

It is true that by enacting § 14(b), Congress contemplated diversity of regulation throughout the country on the subject of union security agreements. Id. However, the diversity that arises from different regulations among various of the 50 states and the federal enclaves within the 21 right-towork states is qualitatively different from the diversity that would arise if cities, counties, and other local governmental entities throughout the country were free to enact their own regulations. A consequence of such diversity for both employers and unions would be to subject a single collective bargaining relationship to numerous regulatory schemes thereby creating an administrative burden and an incentive to abandon union security agreements. This result would effectively undermine Congress' determination in § 8(a)(3) of the Act that union security agreements are consistent with federal labor policy and would similarly undermine the NLRA's purpose by discouraging rather than encouraging bargaining on "conditions of employment." I agree with the court of appeals in Kentucky State AFL-CIO v. Puckett, 391 SW.2d 360 (Ky.Ct.App.1965) that:

It is not reasonable to believe that Congress could have intended to waive other than to major policy-making units such as states and territories, the determination of policy in such a controversial area as that of union security agreements. We believe Congress was willing to permit varying policies at the state level, but could not have intended to allow as many local policies as there are local political subdivisions in the nation.

Id. at 362....

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