Metropolitan Milwaukee Ass'n v. Milwaukee County

Decision Date11 February 2005
Docket NumberNo. 01-C-0149.,01-C-0149.
Citation359 F.Supp.2d 749
CourtU.S. District Court — Eastern District of Wisconsin

Gordon Giampietro, Jonathan Levine, Milwaukee, WI, for Plaintiff.

Marianne Goldstein Robbins, Milwaukee, WI, for Defendant.


ADELMAN, District Judge.

Plaintiff Metropolitan Milwaukee Association of Commerce, an association of area businesses, challenges a Milwaukee County ordinance requiring certain County contractors to sign labor peace agreements with unions who seek to organize those of their employees who perform County-funded work. Plaintiff asserts that the ordinance is preempted by National Labor Relations Act ("NLRA"), 29 U.S.C. §§ 151, et seq., that it violates the Free Speech Clause of the First Amendment, and that it is unconstitutionally vague in violation of the Due Process clause of the Fourteenth Amendment. Before me now are the parties' cross-motions for summary judgment.


Chapter 31, entitled "Responsibility of Certain County Contractors to Reduce the Likelihood of Labor Disputes," applies to contractors from whom the County purchases care, treatment or transportation services for the elderly or disabled, having an aggregate value of more than $250,000. Milwaukee County, Wis., Gen. Ordinances ("Ord.") § 31.02(a). The ordinance states that its purpose is to protect the County's interest in ensuring the uninterrupted delivery of County-funded services to vulnerable residents by preventing disruptions caused by labor disputes during labor organizing drives. Id. § 31.01.1

Chapter 31 requires a contractor to whom it applies, as a condition of doing business with the County, to agree to enter into a labor peace agreement with a union that: (1) seeks to organize the contractor's County-funded employees; and (2) requests such an agreement. Id. § 31.03(a). Under the ordinance, a labor peace agreement must provide that: (1) the contractor will not "express to employees false or misleading information that is intended to influence the determination of employee preference regarding union representation;" (2) the union will not "misrepresent to employees the facts and circumstances regarding their employment;" (3) the contractor will provide to the union a "list of the names, addresses and phone numbers of the employees" who are eligible for representation; (4) the contractor will afford the union reasonable "access to the workplace for the purpose of providing employees with information about the [union];" (5) disputes arising under the agreement will be arbitrated; and (6) the union will not engage in economic action against the employer, such as strikes, picketing or boycotting. Id. § 31.02(f)(1)-(6). The agreement must also include procedures for preventing the parties from coercing employees in selecting or not selecting a bargaining representative and prohibit them from requiring employees to "attend a meeting or event that is intended to influence [their] decision in selecting or not selecting a bargaining representative." Id. § 31.02(f)(7). The County may terminate contracts with contractors who refuse to sign an agreement or who are found by an arbitrator to have violated one. Id. § 31.05.


Summary judgment is required "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The mere existence of some factual dispute does not defeat a summary judgment motion; "the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). For a dispute to be genuine, the evidence must be such that a "reasonable jury could return a verdict for the nonmoving party." Id. For the fact to be material, it must relate to a disputed matter that "might affect the outcome of the suit." Id.

In evaluating a motion for summary judgment, the court must draw all inferences in a light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). However, it is "not required to draw every conceivable inference from the record — only those inferences that are reasonable." Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir.1991). When both parties have moved for summary judgment, both are required to show that no genuine issues of fact exist, taking the facts in the light most favorable to the party opposing each motion. If issues of fact exist, neither party is entitled to summary judgment. Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341, 349 (7th Cir.1983).

A. General Principles of Preemption

Plaintiff argues that under the Supremacy Clause of the Constitution, U.S. Const. art. VI, cl. 2, the NLRA preempts Chapter 31. A federal statute may expressly or impliedly preempt state or local legislation. Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 738, 105 S.Ct. 2380, 85 L.Ed.2d 728 (1985). In the absence of express preemption, to determine whether a federal statute preempts state or local legislation, a court must ascertain Congress's intent in enacting the federal statute. Id. Generally, courts will not imply preemption unless Congress clearly intended to occupy the field or the state or local regulation conflicts with the federal statute or frustrates its purpose. Id. at 738, 747-48.

The NLRA contains no preemption provision, and courts have generally been reluctant to read into the law a congressional intent to preempt. Bldg. & Constr. Trades Council of the Metro. Dist. v. Associated Builders & Contractors of Mass./R.I., Inc., 507 U.S. 218, 224, 113 S.Ct. 1190, 122 L.Ed.2d 565 (1993) ("Boston Harbor"); Colfax Corp. v. Ill. State Toll Highway Auth., 79 F.3d 631, 633 (7th Cir.1996). However, courts have determined that the NLRA preempts state and local regulation in two situations. "Garmon preemption" forbids state and local regulation of activities that § 7 of the Act protects, that § 8 makes an unfair labor practice or that the Act arguably protects or prohibits. Boston Harbor, 507 U.S. at 224-25, 113 S.Ct. 1190 (citing San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 244, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959)). "Machinists preemption" prohibits state and municipal regulation in areas that Congress intended to leave to the free play of economic forces. Id. at 225-26, 113 S.Ct. 1190 (quoting Lodge 76, Int'l Assoc. of Machinists & Aerospace Workers v. Wis. Employment Relations Comm'n, 427 U.S. 132, 140, 96 S.Ct. 2548, 49 L.Ed.2d 396 (1976)).

In arguing that the NLRA preempts Chapter 31, plaintiff does not make clear whether it has in mind Garmon or Machinists preemption or both (probably the last). In any case, the County responds that Chapter 31's purpose is to serve its proprietary interest in ensuring the efficient delivery of County-funded services to vulnerable County residents and not to regulate labor relations and, therefore, the ordinance is not subject to NLRA preemption.

When a state or local government takes action that affects labor relations but does so for the purpose of serving its proprietary as opposed to regulatory interest, the action is not subject to NLRA preemption. Boston Harbor, 507 U.S. at 220-22, 232-33, 113 S.Ct. 1190. Two Supreme Court cases, Wisconsin Department of Industry, Labor & Human Relations v. Gould, Inc., 475 U.S. 282, 106 S.Ct. 1057, 89 L.Ed.2d 223 (1986), and Boston Harbor, set the parameters for determining when governmental action affecting labor relations is proprietary and when it is regulatory. In Gould, the Supreme Court held that the NLRA preempted a state law debarring employers who repeatedly violated the NLRA from doing business with the state.2 Although the state argued that the statute was not subject to preemption because it constituted market participation, the state conceded that the statute's purpose was to deter labor law violations and reward fidelity to the law, and the Court found that the statute "function[ed] unambiguously as a supplemental sanction for violations of the NLRA." Gould, 475 U.S. at 287-89, 106 S.Ct. 1057. The Court stated that the statute could not "even plausibly be defended as a legitimate response to state procurement constraints," and that "[t]he manifest purpose and inevitable effect of the debarment rule [was] to enforce the requirements of the NLRA." Id. at 291, 106 S.Ct. 1057. The Court therefore rejected the state's argument that the statute constituted market participation.

In Boston Harbor, the Court upheld the action of a state agency against a claim of NLRA preemption on the ground that the agency was acting as a market participant. There, the agency required bidders on a construction project to agree to sign a project labor agreement as a condition of receiving a contract. 507 U.S. at 220-22, 232-33, 113 S.Ct. 1190. The purpose of the requirement was to assure labor stability over the life of the project. Id. at 221-22, 113 S.Ct. 1190.3 After recognizing that "[p]ermitting the States to participate freely in the marketplace is ... consistent with NLRA preemption principles," the Court found that the requirement was not preempted because "there [was] no question but that [the state agency] was attempting to ensure an efficient project that would be completed as quickly and effectively as possible at the lowest cost," and because the requirement was "specifically tailored to one particular job." Id. at 230-32, 113 S.Ct. 1190. The Court also determined that the fact that the NLRA authorized private employers in the construction industry to enter into similar...

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    ...rights of union members). Since oral argument, however, two decisions have been issued — Metropolitan Milwaukee Association of Commerce v. Milwaukee County, 359 F.Supp.2d 749 (E.D.Wis.2005) ("MMAC"); and Hotel Employees & Restaurant Employees Union, Local 57 v. Sage Hospitality Resources, L......
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