Opposition Brief — Washington Service Contractors Coalition v. District of Columbia

No. 95-896

== se —

iN THE _

Supreme Comet of the United States

OCTOBER TERM, 1995

WASHINGTON SERVICE CONTRACTORS COALITION, ef al.,

¥ Petitioners,

DISTRICT OF COLUMBIA, ef al.,

and

SERVICE EMPLOYEES INTERNATIONAL UNION, ef al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

MARSHA S. BERZON CHARLES F.. C. RUFF

(Counsel of Record) Corporation Counsel, D.C.

177 Post Street, Suite 300 CHARLES L. REISCHEL

San Francisco, CA 94108 (Counsel of Record)

(415) 421-7151 Deputy Corporation Counsel

BRUCE MILLER Appellate Division

ORRIN BAIRD Office of the Corporation

CAROL R. GOLUBOCK Counsel

1313 LStreet, NW One Judiciary Square

Washington, DC 20005 441 Fourth Street, NW

Att ys for Service Washington, DC 20001

Employees International (202) 727-6252

Union. et al. Attorneys for District

, of Columbia, et al.

ecu

WILSON - Eres PRINTING Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

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TABLE OF CONTE®’

Page

STATEMENT OF THE CASE ............. l

A. Tae Statute ............ aie IIT ATT 1

B. Proceedings ..... ae pA AE RR PO SOS 3

BERET, endecsnvscccrmacmemnvcinaenvens ER A Ee PS RES 4

CONCLUSION .... conic 15

ii

TABLE OF AUTHORITIES

Cases Page

Alaska Airlines v. Brock, 480 U.S. 678 (1987)...... 9,12

Allied Structural Steel Co. v. Spannaus, 438 U.S.

NE CRIED ciniisniicssnbniiinesiiinteanslanisiubiesssniaaniian ia ian Alia 14

Barrentine v. Arkansas-Best Freight silicon Inc.,

Fg Be ERS Ie ah oe 6

Belknap v. Hale, 468 U.S. 491 (1988) .............0......... 8

Buckley v. Valeo, 424 U.S. 101 (1976) ..................... 12

Cannon v. Edgar, 88 F.3d 880 (7th Cir. 1994) ........ 5

Chamber of Commerce v. Bragdon, 64 F.3d 497

CUE Cs ID csctracscincenssesndsomentiaiineuiabiiabiddanabedin 11, 13

De Canas v. Bica, 424 U.S. 351 (1976) ..................... 9

Fall River Dyeing & Finishing Corp. v. NLRB, 482

CE Be CH. cnccrttntcindencsdaduien 6, 11

Fort Halifax Packing Co. v. Coyne, 482 U.S. 1

COTE D cciccstssvnicovvacetdadentesincindinsnsadniieesaeatennes 7, 8, 9,10

Golden State Transit Corp. v. City of Los Angeles,

498 U.S. 108 (1989) ...... PRR aN YE ne A 10

Gray v. United States, 499 A.2d 815 (D.C. 1985).... 18

Howard Johnson Co. v. Hotel Employees, 417 U.S.

DED CED ccincesvuinnsseviiasiecodatalscaumbicanemmndina tiie esiad 11

Immigration & Naturalization Service v. Chadha,

GED ULE, BED Ce secnctelisctenssdonsininlapreciniantsabtnciosses 12

Love’s Barbeque, 245 NLRB 78 (1979) .................. 12

Machinists v. Wisconsin Employment Relations

pw. git & 6G | eee 8,9

Metropolitan Life Ins. Co. v. Massachusetts, 471

Theis Cae CUED sescsnccidonsiciemcubsiatbaeaianihcbemacusteenaon! passim

NLRB v. Burns Intl Security Services, Inc., 406

CB Re CD eine ciccieieinceaiaied ie cieaietndeiieeeien 11

Phelps Dodge Corp. v. NLRB, 318 U.S. 177 (1941).. 12

RDP Development Corp. v. District of Columbia,

PF FB te | en eee 13

San Diego Building Trades Council v. Garmon, 359

TREE, Te Ce ecicstneesccrcedanatcdet eae, 14

Shortway Suburban Lines, 286 NLRB 3238 (1987).. 12

Systems Management, Inc., 292 NLRB 1075

CIID inetscalicsusenksen Minsshecheniccsnceeanies ida caateate ater coee 12

United States v. National Treasury Employees

Union, 115 S. Ct. 1008 (1996) ......000.0 13

re re ee

iii

TABLE OF AUTHORITIES—Continued

Statutes Page

29 U.S.C. § 164 (a) 3

§ 8(a) (3), 29 U.S.C. § 158(a) (3) 8,10, 11,12

Bus Regulatory Reform Act of 1982, § 27 9

District of Columbia Displaced Worker Protection

Act of 1994, D.C. Code §§ 36-1501 to 1503 passim

D.C. Code §§ 36-1502 2

D.C. Code §§ 36-1502(c) .......................-.. 2

D.C. Code §§ 36-1502 (e) BRIER ee: 2

D.C. Code §§ 36-1502 (f) 2

D.C. Code §§ 36-1503 (b) 2

D.C. Code § 49-601... ee 13

Fair Labor Standards Act, 29 U.S.C. § 213(a) (1) 3

Interstate Commerce Act, 49 U.S.C. § 11347 ; 9

Milwaukee Railroad Restructuring Act, 45 U.S.C.

acl da ae cali oeiiaiiamoene 9

National Labor Relations Act (NLRA), 29 U. S. C.

i EIN sd oedaaiieeilnonebeuphonbennitianonitin passim

Redwood National Park Expansion Act, 16 U. S. C.

§ 791 . 10

Regional Rail Reorganization Act of 1973, 45 U. S.C.

§ 588(f) .. _ 9

Rock Island Railroad Transition and Employee As-

sistance Act, 45 U.S.C. § 1004 .. bandas 9

Urban Mass Transportation Act, 49 U.S.C.

§ 1609(c) Ee areal Ee Ne eae Se HII 10

Other Authorities

Executive Order No. 12966 (1994) —.......---..-002--.--..... 10

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

No. 95-896

WASHINGTON SERVICE CONTRACTORS COALITION, et al.,

= Petitioners,

DISTRICT OF COLUMBIA, et al.,

and

SERVICE EMPLOYEES INTERNATIONAL UNION, et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

The decisions below, statutes involved and basis for

jurisdiction are accurately stated in the Petition for Writ

of Certiorari (at 1-2).

STATEMENT OF THE CASE

A. The Statute: The basic premise of the Petition for

Writ of Certiorari is that the District of Columbia Dis-

placed Worker Protection Act of 1994 (“DWPA”), D.C.

Code Sections 36-1501 to 1503, “imposes on employers

an obligation to bargain with the labor union that repre-

sented the predecessor’s employees.” Petition for a Writ

of Certiorari (Pet.) at 3. The DWPA does no such thing.

The DWPA applies without regard to whether the cov-

ered employees are union represented or not, and allevi-

ates the impact of contract turnover on low wage workers

2

employed in certain contract service industries such as

janitorial and food services, and on the District’s social

services and unemployment compensation budgets, by pro-

viding these low-skilled workers a limited opportunity for

continued employment.

Hearings held by the D.C. City Council before enact-

ing the DWPA revealed that because of the labor intensive

nature and low capital requirements of these service indus-

tries contracts frequently turn over, and that when a

service contractor loses a. contract its workers generally

lose their jobs with that employer. Appendix filed in the

Court of Appeals (“App.”), at 81, 120. This continuous

turnover has a great impact on the District’s unemploy-

ment compensation system. The District’s Department of

Employment Services stated during the statute’s consider-

ation that the DWPA, if enacted, “could significantly im-

pact the reduction of the number of unemployed D.C.

residents currently collecting unemployment benefits in

the job categories covered by the bill.” App. at 80-83.

The DWPA provides that, when a covered employer

is awarded a contract to perform “similar covered serv-

ices” previously provided by another contractor, the cov-

ered employer must retain covered employees of its prede-

cessor “for a 90-day transition employment period”. D.C.

Code §§ 36-1503(b). The new contractor may establish

its own terms of employment, see, D.C. Code §§ 36-1502,

and is specifically authorized “at anytime, [to] deter-

mine[] that fewer employees are required to perform the

new contract than were required by the previous con-

tractor.” D.C. Code §$ 36-1502(c).

The statute explicitly allows discharge for cause dur-

ing the transition period. D.C. Code §§ 36-1502(e).

Further, when the transition period ends, the contractor

is required only to do a performance evaluation to deter-

mine if the employee has performed satisfactorily and

should continue to be retained. D.C. Code §§ 36-1502(f).

Persons employed in managerial and other positions ex-

empted from coverage under the Fair Labor Standards

3

Act, 29 U.S.C. §213(a)(1), are specifically excluded

from coverage under DWPA. I/d.

B. Proceedings: Less than one month after the DWPA

took effect, Petitioners, an association of building service

contractors and some individual contractors (“the con-

tractors”), filed suit against the District of Columbia

(“District”) in federal District Court. The district court

enjoined the DWPA as preempted by the National Labor

Relations Act (NLRA), 29 U.S.C. § 151 et seq., for two

separate reasons: First, insofar as the DWPA applies

to supervisors, “the DWPA’s application to supervisors

[was] enjoined” as violative of NLRA § 14(a), 29 U.S.C.

§ 164(a),” Pet. App. 30a-31a; and second, the DWPA

“as a whole” was declared preempted as “an unprece-

dented incursion into an area that was previously unreg-

ulated.” Pet. App. 38a.

The District and the Intervenor Union appealed the

district court’s broad ruling that the DWPA as a whole

is preempted, but did not appeal the first, narrower

aspect of the judgment, pertaining only to supervisors.’

On appeal, the Court of Appeals for the D.C. Circuit

reversed.

Unanimously, the court below rejected the contractors’

contention that the district court’s injunction must be

sustained in its entirety on the basis of that court’s ruling

concerning supervisors. Pet. App. 6a-7a; Pet. Arp. 14a.

The court of appeals also rejected, 2-1, the district court’s

broad NLRA preemption ruling. The majority explained

'The District and the Unions noted that, in their view, the

DWPA would apply to few if any NLRA supervisors, and would

not require that those individuals be hired as supervisors or pro-

tect supervisors from discharge because of their union affiliation.

Because the DWPA therefore accords minimal protection to super-

visors and is instead intended to protect rank-and-file employees, the

present respondents determined that it would simplify the further

consideration of this case to accept the district court’s ruling with

respect to NLRA “supervisors” only. Brief for Appellants, at 7-8.

4

that the contractors’ preemption contention, based princi-

pally upon the possibility that, where the predecessor

employer’s workforce is represented by a union for pur-

poses of collective bargaining the successor will be

obliged under the NLRA to recognize that union and bar-

gain with it, “contains a logical flaw” (Pet. App. 9a):

[WJhere the employer has been required by local

law to hire a majority of its predecessor’s employees,

the NLRB may or may not impose successorship

obligations on the new employer. We will not know

until the NLRB addresses the issue. At that time,

if the NLRB determines that the successorship doc-

trine does not apply, appellees’ alleged “conflict” will

disappear. On the other hand, if the NLRB—the

body to who Congress has entrusted the evolution of

federal labor policy [citation omitted]—determines

that the successorship doctrine should apply to such

circumstances, it is difficult to see how appellees

could argue that the result would invoke ‘conflict’

between the DWPA and the NLRA. [Pet. App. 9a.]

And the Court of Appeals, in reliance on Metro-

politan Life Ins. Co. v. Massachusetts, 471 U.S. 724

(1985), held that the NLRA does not broadly preempt

State laws concerning hiring decisions generally, any more

than it does other state employee protective legisla-

tion. Pet. App. 10a-lla. Finally, the D.C. Circuit re-

jected the contention that the DWPA is invalid under the

Contracts Clause. Pet. App. 12a. Judge Sentelle dis-

sented as to the broad NLRA préemption argument only.

Pet. App. 14a-16a. po

ARGUMENT

The preemption issue decided by the Court of Appeals

in this case is, by petitioners’ own admission, sui generis

and on that basis alone is uncertworthy. Pet. 6 (“no state

or local jurisdiction has ever passed a law like the

DWPA); Pet. 24 (“the DWPA is unique”).? This

2 We do not know of any state statutes similar to the DWPA.

(There are, however, various federal statutes that provide hiring

5

Court does not sit to correct error in a case which has

no impact at all beyond the borders of the District of

Columbia.

Beyond that—if more be needed—the Court of Appeals’

rejection of petitioners’ NLRA successorship law preemp-

tion argument rests primarily on the unexceptionable

grounds that petitioner’s argument is marred by a funda-

mental “logical flaw,” and that petitioner’s argument is

in addition squarely refuted by this Court’s decision in

Metropolitan Life Ins. Co. v. Massachusetts, supra. And,

the Court of Appeals’ timeliness ruling—that it is prema-

ture to consider petitioner’s substantive contention con-

cerning whether the NLRA permits imposition of a bar-

gaining obligation on a successor employer absent a con-

scious decision by that employer to hire a majority of its

predecessor’s employees—likewise raises no legal ques-

tion of substance for this Court. Finally, petitioners’

severability and Contract Clause arguments are, as the

Court of Appeals indicated, entirely without basis.

1. The Petition at pp. 7-9 would have it that the

DWPA by its terms creates labor law “successors,” re-

quired to bargain with any union representing their pred-

ecessor’s employees. The DWPA, however, does not

itself impose any bargaining obligation. Rather the

DWPA applies across the board, where the predecessor

was organized or where the predecessor was unorganized,

and simply establishes “minimum labor standards [that]

affect union and nonunion employees equally.” Metro-

protection for employes. See p. 9, infra.) Contrary to Petition-

ers’ suggestion (Pet. 6 n. 3), Cannon v. Edgar, 33 F. 3d 880 (7th

Cir. 1994) involved a state statute bearing no resemblance to the

DWPA. That statute required that employers and unions in cer-

tain circumstances designate which employees would work in the

event of a strike. The Seventh Circuit held that statute preempted

not because of any interference with a supposed employer “free-

dom to hire’, but because that statute is inconsistent with federal

labor law principles protecting the right to strike and precluding

imposition of the terms of a collective bargaining agreement.

6

politan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 755

(1985), quoting Barrentine v. Arkansas-Best Freight Sys-

tem, Inc., 450 U.S. 728, 745 (1981).

Equally to the point, the NLRA does not in terms ad-

dress the circumstances under which a successor employer

must bargain with the union that represented the em-

ployees of its predecessor. Instead, NLRA successorship

doctrine has evolved over time through NLRB and court

decisions on how the NLRA system: for determining ques-

tions of representation is affected by changes in the em-

ploying entity. See Fall River Dyeing & Finishing Corp.

v. NLRB, 482 U.S. 27, 37-41 (1986). The most that

can be said with any certainty regarding that doctrine

is that generally an employer who hires as a majority of

its workforce the predecessor’s employees is obliged to

bargain collectively with the union, if any, representing its

predecessor’s employees. Fall River, 482 U.S. at 46.

The salient point here, however, is that no Board or

court case has addressed the question whether the same

result would follow if the successor hired its predecessor’s

employees because the successor was obliged by law to do

so, rather than because it voluntarily chose to do so.

Petitioners would fill this void with the prediction that

when that issue is reacued, the Board and the courts will

conclude that employers covered by the DWPA will incur

a bargaining obligation because of the mandatory reten-

tion of the predecessor's employees. At the same time,

the contractors maintain that imposing such an obligation

will be inconsistent with the NLRA because the NLRA

successorship doctrine permits impostion of bargaining

obligations only where the employer has made a “con-

scious decision . . . to hire a majority of its employees

from the precedessor.” Pet. 13, quoting, Fall River

Dyeing, 482 U.S. at 41, Pet. 13.

As the court below recognized, this argument is on its

face a mass of internal contradictions. If the second part

of the argument is correct—if, as the contractors in this

7

case insist, the NLRA affirmatively protects successor em-

ployers’ free market right of self-determination in hiring—

then the NLRB and the courts will not require employers

to bargain collectively where they did not voluntarily

undertake to hire a mvjority of the intact workforce.®

The contractors’ confident prediction that they will

be treated as NLRA successors if the DWPA remains in

place and their insistence that such treatment would be

inconsistent with the premises of the NLRA successorship

doctrine cannot both be true.* And, since the DWPA

3 We hasten to add that we do not believe that the successor

doctrine does rest on any “right” of employers to make a con-

scious choice to hire their predecessors employees. For present

purposes, however, the issue is not whether or not the contractors

are correct in that premise, but whether the courts should decide

the question in the present preemption context rather than on

appeal from an NLRB decision.

* Petitioners’ two responses to the foregoing are perfunctory.

First, the contractors maintain that leaving the question of the

impact of the DWPA on the bargaining obligations of successor

employees to the NLRB could, if the Board agrees with petitioners’

own arguments concerning the central role of voluntary employer

hiring decisions in the successorship doctrine, result in a “harmfu!

impact .. . on employees’ rights: the employees would be deprived

of their chosen collective bargaining representative, a result inim-

ical to federal labor policy.” Pet. 14. But, again, if the NLRB

and the courts reached that conclusion, it would be on the basis

that the result is not one “inimical to federal labor policy.”

Second, the contractors suggest that the DWPA is preempted,

without more, because in any ensuing NLRA successorship litiga-

tion involving a DWPA-covered employer, the NLRB may have

to take the impact of the DWPA into account in determining

the appropriate balance between employee representation and em-

ployer autonomy in a successorship situation. But state law often

forms the “backdrop” against which federal NLRA rights operate

(Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 21 (1987, quoting

Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 757

(1985)). Where state law protects employees or employers with-

out regard to the existence of a labor dispute or the existence or

nonexistence of union representation in a workplace, the fact that

such rules may have some impact upon how the NLRA regime

operates has never been a basis, standing alone, for inferring a

8

does not itself impose any bargaining obligation, the

Court of Appeals quite properly declined to decide the

undecided NLRA issue prematurely, or broadly to in-

validate the DWFA ‘ order to assure that no bargaining

obligation inconsistent with the NLRA is later imposed.

Rather, as the court below recognized, the appropriate

forum for determining in the first instance which of the

two possible views regarding the interaction of the DWPA

and the NLRA is most consistent with NLRA successor-

ship principles is the forum prescribed for enforcement

of the NLRA, the NLRB.

2. Petitioners’ second contention is that the DWPA

compromises an NLRA-protected “hiring freedom” of

employers. Pet. 17. Although no such employer “right”

(id.) appears on the face of the statute, petitioners main-

tain that under the Machinists preemption doctrine

(Machinists v. Wisconsin Employment Relations Board,

427 U.S. 132 (1975)), the fact that Congress in enacting

the NLRA regulated the hiring process to the degree of

prohibiting discrimination based on union-related activity

(§ 8(a)(3), 29 U.S.C. § 158(a)(3)) demonstrates an

affirmative Congressional intention that other aspects of

the hiring process be left to employer prerogative.

As the court below held, however, the DWPA is sim-

ply a variant of state employee-protective legislation and

as such, under Metropolitan Life Ins. Co. v. Massachu-

setts, supra, is not preempted by the NLRA. Pet. App.

Congressional intention to override those rules. Belknap v.

Hale, 463 U.S. 491, 501 (1983) (recognizing that the avail-

ability of a valid state law cause of action for breach of contract

by striker replacements might require the Board to adjust the

balance otherwise appropriate between the right of strikers to re-

turn to work after a strike and the ability of employers to func-

tion during a strike); Fort Halifax Packing Co. v. Coyne, 482

U.S. 1, 20 (1987) (holding a state severance pay statute valid

despite the recognition that the statute could alter the balance

of power in bargainng by “undercut[ting] an employer’s ability

to withstand a union’s demand for severance pay.”

9

10a-l1a. In both Metropolitan life, supra, and Fort

Halifax, supra, the employer argued, based on Machin-

ists, that a state law requiring the payment of certain

benefits was invalid because the law restricted the free-

dom of the parties to collective bargaining agreements

to bargain freely with respect to such benefits. 482 U.S.

at 20. In both instances, this Court concluded that the

NLRA “is concerned primarily with establishing an equi-

table process for determining terms and conditions of

employment,” and addresses evils “entirely unrelated to

local or federal regulation establishing minimum terms of

employment.” Metropolitan Life, 471 U.S. at 753, 754:

see also Ft. Halifax, 482 U.S. at 20. For that reason,

given the traditional “broad [state] authority under their

police powers to protect workers within the State” (De

Canas v. Bica, 424 U.S. 351, 356 (1976), quoted in

Metropolitan Life, 471 U.S. at 756), this Court con-

cluded that the NLRA collective bargaining system is

intended to operate in tandem with that authority rather

than to displace it in favor of an entirely free, unregu-

lated labor market. Fort Halifax, 482 US. at 21.

The DWPA takes a novel approach to the problem

of job security. But, both the mandated health benefits

provisions involved in Metropolitan Life and the mandated

severance beneiit provision in Fort Halifax were innova-

tive as well. And, nothing in the Court’s reasoning in

* While we are not aware of any state laws that mandate con-

tinuity of employment over a change of employer, federal laws do

so provide, and have never been thought inconsistent with federal

labor policy. Alaska Airlines v. Brock, 480 U.S. 678 (1987) ( uphold-

ing, against a challenge based on inseverability from a legislative

veto provision, a provision in the Airline Deregulation Act of 1978

providing that covered carriers have a “duty to hire” employees

furloughed by other covered carriers within ten years of the

enactment of the statute); see also, e.g., Bus Regulatory Reform

Act of 1982, § 27; Interstate Commerce Act, 49 U.S.C. § 11347;

Milwaukee Railroad Restructuring Act, 45 U.S.C. § 907; Regional

Rail Reorganization Act of 1978, 45 U.S.C. § 588(f), 7975; Rock

Island Railroad Transition and Employee Assistance Act, 45 U.S.C.

10

those cases suggests that the NLRA froze the states’ au-

thority to redress employment-connected harms to individ-

ual employees as of some time in the past.

To be sure, petitioners claim that hiring issues differ

in some fundamental respect from aspects of the em-

ployment relationship such as the working conditions

involved in Metropolitan Life and Fort Halifax. There

is no legally pertinent difference, however, “based on the

language, structure and history of the NLRA .. .”

(Golden State Transit Corp. v. City of Los Angeles, 493

U.S. 103, 111 (1989)). The NLRA does not regulate

hiring any more or less than the Act regulates discharge,

layoff, pay, hours, safety, or any of the other of a myriad

of employment-related matters that do not involve the

process of bargaining or determination of labor disputes.

The only NLRA provision relating directly to hiring,

§$ 8(a)(3) 29 U.S.C § 158(a)(3), also forbids union-

based discrimination in discharge and working condition."

Thus, petitioners’ argument that “the antidiscrimination

provisions of the NLRA are unintelligible unless one as-

sumes that employers retain the right to make merit-based

selection” (Pet. 19) cannot be squared with Metropolitan

Life itself. Further, there are a panoply of state and fed-

eral laws that did not exist when the NLRA was enacted

in 1935, and that regulate the employment selection and

retention process (such as wrongful termination, employ-

ment discrimination and licensing laws), none of which

have been thought inconsistent with the NLRA.

§ 1004; Redwood National Park Expansion Act, 16 U.S.C. § 791;

Urban Mass Transportation Act, 49 U.S.C. § 1609(c); Executive

Order No. 12966 (1994). That Congress has repeatedly enacted

such hiring protections for laid-off employees indicates that the

Legislature see no fundamental incompatibility between such re-

quirements and the National Labor Relations Act. Metropolitan Life

Ins. Co. v. Massachusetts, 471 U.S. at 755.

*® Section 8(a) (3) prohibits “discrimination in regard to hire or

tenure of employment or any term or condition of employment to

encourage or discourage membership in any labor organization.”

1]

To fill this glaring statutory gap, petitioners rely upon

language in several of this Court’s NLRA cases, includ-

ing one successorship case, which refer to the “right” of

employers to choose their employees. Pet. at 18-19. In

the cases cited however, as well as others expressing simi-

lar concepts, it is always apparent in context that the

Court intended only to describe the limited reach of the

NLRA itself, not to confer a federally protected right

in employers to free rein in the hiring process that pre-

empts state law to the contrary. See e.g., Fall River

Dyeing & Finishing Corp. v. NLRB, 482 US. at 40

(“the successor is under no obligation to hire the

employees of its predecessor”); NLRB v. Burns Int’!

Security Services, Inc., 406 U.S. 272, 280 n.5 (1972)

(“the Board has never held that [the NLRA] itself re-

quires that an employer who submits the winning bid for

a service contract . . . be obligated to hire all of the

employees of the predecessor.”); Howard Johnson Co.

v. Hotel Employees, 417 U.S. 249, 264 (1974) (quoting

the above language of Burns); id. at 262, 264 (using

the term “right” when making the same point about the

limited nature of the federal regulation of the hiring

process contained in the NLRA.). Under these cases,

employers have, with respect to hiring as with respect to

other employee-protective regulation, only the “right” to

be free of regulation by the NLRB, except insofar as

section 8(a)(3) (or any other specific provision of the

Statute) applies, not the “right” to enjoy a wide, fed-

erally-assured “no-law” area of absolute freedom.

Finally, Chamber of Commerce v. Bragdon, 64 F.3d

497 (9th Cir. 1995) (Pet. 22-23), certainly creates no

circuit conflict with regard to the Court of Appeals’

Metropolitan Life holding in this case. The statute in-

volved in Chamber of Commerce bears no resemblance

whatever to the DWPA (which, as noted (p. 4, supra),

the Petition concedes is unique). The Chamber of

Commerce statute did not concern any neutral, across-

the-board hiring limitation, but rather concerned a statute

12

that interfered in the bargaining process directly, by im-

posing upon the parties to collective bargaining negotia-

tions varying wage and benefit provisions “developed by

averaging the bargains struck by other employers and

employees.” 64 F.3d at 503. Here, the statute has no

possible impact whatever on the strategy or outcome of

negotiations. See n. 4, supra."

3. Petitioners’ Other Arguments: (a) The contractors

maintain that even if the Court of Appeals was otherwise

correct, the judgment below should be reversed because

the DWPA cannot be deemed invalid “to the extent that

the DWPA requires employers to retain supervisors in

supervisory positions without voiding the entire statute.”

Pet. App. 30a; Pet. 24-26. No reason is suggested why

certiorari should be granted to review this case-specific

issue, and none exists.

The argument is, in any event, “inexplicabl[e]” and

“meritless.” Pet. App. 14a (Sentelle, J., dissenting).

Under well-established principles, courts “refrain from

invalidating more of a statute than is necessary.” Alaska

Airlines, Inc. v. Brock, supra, 480 U.S. at 684. “Unless

it is evident that the Legislature would not have enacted

those provisions that are within its power, independently

of that which is not, the invalid part may be dropped

if what is left is fully operative as a law.” Buckley v.

Valeo, 424 U.S. 101, 108-109 (1976); Immigration &

Naturalization Service v. Chadha, 463 U.S. 919, 931-932

7 As the Court of Appeals noted (Pet. App. 9a-10a), employers,

whether successors or otherwise, are prohibited by the NLRA from

avoiding unionization through the tactic of stacking the work-

force against the union. 29 U.S.C. § 158(a) (3); Phelps Dodge

Corp. v. NLRB, 318 U.S. 177 (1941); Systems Management,

Inc., 292 NLRB 1075 (1975) ; Shortway Suburban Lines, 286 NLRB

323 (1987); Love’s Barbeque, 245 NLRB 78 (1979). Thus, the

NLRA does not preserve from interference any employer right of

self-help with respect to avoiding a successor’s obligation to bargain

collectively that parallels the freedom from regulation once bar-

gaining begins at issue in Chamber of Commerce.

13

(1983); Gray v. United States, 499 A.2d 815, 821-830

(D.C. 1985).*

The District of Columbia has made its legislative in-

tent clear with respect to preserving statutes by enacting

a generic severability law, codified as D.C. Code § 49-

601:

(a) [I]f any provision of any act of the Council of

the District of Columbia or the application thereof

to any person or circumstance is held to be uncon-

stitutional or beyond the statutory authority of the

Council . . . or otherwise invalid, the declaration of

invalidity shall not affect other provisions or applica-

tions of the act which can be given effect without the

invalid provision or application. . . .

See RDP Development Corp. v. District of Columbia,

645 A.2d 1078, 1082 n.18 (D.C. 1994) (applying the

generic severance provision.). There is no doubt that

the DWPA can be given meaningful effect without any

application to supervisors. As noted (p. 3, supra), the

very reason respondent did not apepal the supervisor

holding is that the district court’s supervisor holding af-

* Petitioners suggest that United States v. National Treasury

Employees Union (NTEU), 115 8. Ct. 1008 (1995), changed the law

of severability so as to broadly preclude partial invalidation of a

statute as applied to particular circumstances. Pet. 25-26. In

NTEU, however, the statute was declared invalid as to a “vast

majority” of speech covered by the statute (115 S. Ct. at 1015),

while here the statute remains fully valid with regard to al-

most all the covered individuals. Further, in NTEU, unlike here,

there was no applicable severance clause (id. at 1024 (O’Connor, J.,

concurring in the judgment and dissenting in part)); there were

“inconsistent signals” from Congress concerning its likely intent

should the statute be partially invalid (id. at 1019 n.26); and there

was no “relatively simple” line between valid and invalid applica-

tions. Jd. NTEU therefore establishes only that in some circum-

stances, none of which exist here, courts may find it necessary as a

practical matter to invalidate a statute more broadly than the basis

for invalidity itself justifies.

14

fects the application of the statute either minimally or

not at all.”

(b) The contractors also assert that the Court of

Appeals erred in rejecting their contention that the DWPA

violates the constitutional prohibition on impairment of

the obligation of contracts. As the Court of Appeals

recognized, however, that clause only applies where there

is an existing contractual relationship to be “impaired”,

and “the DWPA only requires contractors to hire their

predecessors employees, not to fire their own employees.”

Nothing in Allied Structural Steel Co. v. Spannaus, 438

U.S. 234 (1978) or any other case supports the contrac-

tors’ assertion that “laws . . . creating contractual obliga-

tions are just as violative of the Contracts Clause as those

that diminish or eliminate contractual obligations.” Pet.

28 (emphasis supplied).

® The contractors suggest that a state legal rule exempting

NLRA supervisors from a provision covering employees cannot be

given effect because only the NLRB can determine whether indi-

viduals are or are not supervisors within the meaning of the NLRA

(Pet. 25 n.12). The Court of Appeals properly held, however, that

the rule of San Diego Building Trades Council v. Garmon, 359 U.S.

236 (1959), precluding state adjudication where the conduct that

the State seeks to regulate or to make the basis of liability is

actually or arguably committed to NLRB adjudication as protected

or prohibited by the NLRA, has no application here. Indeed, NLRA

§ 14(a), the provision assertedly violated by the application of

the DWPA to NLRA-defined supervisors, is not enforceable by the

NLRB, because it creates no unfair labor practice, and therefore

must be adjudicable in court.

————

15

CONCLUSION

For the reasons stated above, the Petition for a Writ of

Certiorari should be denied.

MARSHA S. BERZON

(Counsel of Record)

177 Post Street, Suite 300

San Francisco, CA 94108

(415) 421-7151

BRUCE MILLER

ORRIN BAIRD

CAROL R. GOLUBOCK

1313 L Street, NW

Washington, DC 20005

Attorneys for Service

Employees International

Union, et al.

Respectfully submitted,

CHARLES F. C. RUFF

Corporation Counsel, D.C.

CHARLES L, REISCHEL

(Counsel of Record)

Deputy Corporation Counsel

Appellate Division

Office of the Corporation

Counsel

One Judiciary Square

441 Fourth Street, NW

Washington, DC 20001

(202) 727-6252

Attorneys for District

of Columbia, et al.