Local 514 Transport Workers v. Keating

• Decision Date: 13 February 2004
• Docket Number: No. 02-7077.,02-7077.
• Citation: 358 F.3d 743
• Parties: LOCAL 514 TRANSPORT WORKERS UNION OF AMERICA; Local 627 International Union of Operating Engineers; Local Lodge 898 International Association of Machinists and Aerospace Workers; Local 584 International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers; Local 916 American Federation of Government Employees; Local 1358 National Association of Letter Carriers; Local 1558 International Union, United Auto, Aerospace and Agricultural Implement Workers of America; Oklahoma State AFL-CIO; Edwards Pipeline Services, Inc., Plaintiffs-Appellants, v. Frank KEATING, Governor of the State of Oklahoma, Defendant-Appellee, Oklahomans for Jobs and Justice, Inc.; Kent Duvall; Michelle McKenzie; Stephen Weese, Defendants-Intervenors-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

358 F.3d 743

LOCAL 514 TRANSPORT WORKERS UNION OF AMERICA; Local 627 International Union of Operating Engineers; Local Lodge 898 International Association of Machinists and Aerospace Workers; Local 584 International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers; Local 916 American Federation of Government Employees; Local 1358 National Association of Letter Carriers; Local 1558 International Union, United Auto, Aerospace and Agricultural Implement Workers of America; Oklahoma State AFL-CIO; Edwards Pipeline Services, Inc., Plaintiffs-Appellants, v. Frank KEATING, Governor of the State of Oklahoma, Defendant-Appellee, Oklahomans for Jobs and Justice, Inc.; Kent Duvall; Michelle McKenzie; Stephen Weese, Defendants-Intervenors-Appellees.

No. 02-7077.

United States Court of Appeals, Tenth Circuit.

April 24, 2003.

February 13, 2004.

Laurence E. Gold, AFL-CIO, Washington, D.C. (James E. Frasier, Steven R. Hickman, Frasier, Frasier & Hickman, Tulsa, OK; Gene Stipe, Eddie Harper, Stipe Law Firm, McAlester, OK; and Gerald B. Ellis, Tulsa, OK, with him on the brief) for Plaintiffs-Appellants.

John N. Hermes, McAfee & Taft, Oklahoma City, OK (D. Kent Meyers, Mary H. Tolbert, Crowe & Dunlevy, Oklahoma City, OK, with him on the brief) for Defendants-Appellees Frank Keating and Oklahomans for Jobs and Justice, Inc.

John R. Martin, National Right to Work Legal Defense Foundation, Inc., Springfield, VA, for Defendants-Appellees Kent Duvall, Michelle McKenzie and Stephen Weese.

Before SEYMOUR, PORFILIO, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Plaintiffs filed a complaint in district court seeking a declaration that numerous provisions of article XXIII, § 1A of the Oklahoma Constitution were preempted by federal law and that any remaining nonpreempted provision was not severable from the preempted provisions. The district court concluded as follows: (1) the only provisions of article XXIII, § 1A that were preempted by federal labor law were §§ 1A(B)(5) and 1A(C); and (2) §§ 1A(B)(5) and 1A(C) were severable from the remaining portions of article XXIII, § 1A.

Plaintiffs appealed to this court contending that the district court erred in concluding that § 1A(B)(1) is not preempted by federal law and that §§ 1A(B)(1), 1A(B)(5), and 1A(C) are severable from the remaining portions of article XXIII, § 1A. In an order certifying questions of state law to the Oklahoma Supreme Court,¹ this court first held that the district court had erred in concluding § 1A(B)(1) is not preempted by federal law. We further held that § 1A(E) was also preempted to the extent that it enforced the provisions of §§ 1A(B)(1), 1A(B)(5), and 1A(C). Having so held, this court certified the following two questions to the Oklahoma Supreme Court:

1. Is severability analysis required in light of the preemption of article XXIII, § 1A(B)(1), § 1A(B)(5), § 1A(C), and § 1A(E) (insofar as it enforces § 1A(B)(1), § 1A(B)(5), and § 1A(C)) as to workers covered by the NLRA, as opposed to the "invalidation" of those provisions?

2. If severability analysis is appropriate, are § 1A(B)(1), § 1A(B)(5), § 1A(C), and § 1A(E) (insofar as it enforces § 1A(B)(1), § 1A(B)(5), and § 1A(C)) severable from the nonpreempted portions of § 1A?

In a published opinion issued on December 16, 2003, the Oklahoma Supreme Court answered the first question in the negative, thereby rendering the second question moot. Local 514 Transp. Workers Union of Am. v. Keating, 83 P.3d 835, 836-37, 838-39, 847-48 (Okla.2003). In holding that a severability analysis was not necessary, the Oklahoma Supreme Court concluded as follows:

First, we note that whether to apply severability analysis here is a matter of state law. With respect to whether severability analysis is required here, we think it only logical to extend the trial court's analysis concerning the Railway Labor Act, the Civil Service Reform Act, the Postal Reorganization Act, and federal enclaves to those sections of the right to work amendment that have been held to be preempted by the Labor Management Relations Act and the National Labor Relations Act. Consequently, we hold that the right to work amendment contemplates that certain of its provisions might not operate under certain conditions because of the Labor Management Relations Act and the National Labor Relations Act, just as the trial court held that the right to work amendment contemplated that it would not apply to employees covered by the Railway Labor Act, the Civil Service Reform Act, or the Postal Reorganization Act, and had no application to federal enclaves, such as military bases. Thus, severability analysis is not necessary.

Our conclusion that severability analysis is unnecessary is buttressed by the fact that the Oklahoma right to work law applies to state and local government workers and agricultural workers, regardless of its preemption by federal law with respect to certain classes of employees in certain situations. Plaintiffs argue that this is not important because state employees are currently not subject to security agreements because of legislation. Based on this fact, plaintiffs claim that the right to work law provides no new protections to state workers. But the right to work law is a constitutional amendment, so it will protect state employees from any legislative changes that might otherwise be made to labor laws governing public employees. Thus, the right to work law provides a significant additional protection to public employees.

Id. at 839.²

Based on the Oklahoma Supreme Court's answer to this court's certified questions, the judgment of the United States District Court for the Eastern District of Oklahoma is hereby AFFIRMED.³

CERTIFICATION OF QUESTIONS OF STATE LAW

I. INTRODUCTION

Plaintiffs¹ filed a complaint in the United States District Court for the Eastern District of Oklahoma seeking a declaration that numerous provisions of article XXIII, § 1A of the Oklahoma Constitution were preempted by federal law and that any remaining non-preempted provisions of § 1A were not severable from the preempted provisions. Although the district court concluded that the majority of the provisions of article XXIII, § 1A were not preempted by the relevant federal labor laws, it did conclude that § 1A(B)(5) and § 1A(C) were preempted by the National Labor Relations Act ("NLRA"), 29 U.S.C. § 151 et seq., and the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 141 et seq. Having so determined, the district court proceeded to analyze whether the non-preempted portions of § 1A were severable from § 1A(B)(5) and § 1A(C). The district court concluded that the core provisions of article XXIII, § 1A were contained in § 1A(B)(1)-(4) and, applying Okla. Stat. tit. 75, § 11a and its presumption of severability, further concluded that the invalidation of § 1A(B)(5) and § 1A(C) would not hinder the enforcement of those core provisions. Accordingly, the district court determined that § 1A(B)(5) and § 1A(C) were severable from the remaining portions of § 1A.

Plaintiffs bring the instant appeal challenging two aspects of the district court's decision. First, they contend the district court erred in concluding that § 1A(B)(1) is not preempted by federal labor law. Second, they assert the district court erred in determining that § 1A(B)(5) and § 1A(C) are severable from the remainder of § 1A and, in any event, the additional preemption of § 1A(B)(1) clearly tips the balance in favor of non-severability.²

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court holds as follows: (1) plaintiffs have standing to assert that article XXIII, § 1A(B)(1) is preempted by federal law as part of their claim that the entirety of § 1A is void; and (2) § 1A(B)(1) is preempted by the NLRA. Having so concluded, we certify to the Oklahoma Supreme Court the question whether § 1A(B)(1), § 1A(B)(5), and § 1(C) are severable from the remaining, non-preempted portions of § 1A. See 10th Cir.R. 27.1; Okla. Stat. tit. 20, §§ 1601-1611.

II. BACKGROUND

In April 2001, the Senate and House of Representatives of the First Session of the 48th Oklahoma Legislature approved Senate Joint Resolution No. 1, which directed the Oklahoma Secretary of State to "refer to the people for their approval or rejection" a proposed amendment to article XXIII of the Oklahoma Constitution. A special election was subsequently arranged for the sole purpose of voting on the proposed amendment, denominated State Question No. 695 ("SQ 695"). The ballot title described SQ 695 as follows:

The measure adds a new section to the State Constitution. It adds Section 1A to Article 23. The measure defines the term "labor organization." "Labor organization" includes unions. That term also includes committees that represent employees.

The measure bans new employment contracts that impose certain requirements to get or keep a job. The measure bans contracts that require joining or quitting a labor organization to get or keep a job. The measure bans contracts that require remaining in a labor organization to get or keep a job. The measure bans contracts that require the payment of dues to labor organizations to get or keep a job. The measure bans contracts that require other payments to labor organizations to get or keep a job. Employees would have to approve deductions from wages paid to labor organizations. The measure bans contracts that require labor organization approval of an employee to get or keep a job.

The measure bans other employment contracts. Violation of this section is a misdemeanor.

SQ 695 Ballot Text, http://www.state.ok.us/=elections/sq695txt.html. On September 25, 2001, the Oklahoma electorate approved SQ 695 by a vote of 447,072 to 378,465; article XXIII, § 1A became effective on September 28, 2001.³

Shortly after the constitutional amendment went into effect, plaintiffs filed a complaint in federal court seeking, inter alia, a declaration that numerous...