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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1996
- **Citation:** 516 U.S. 1145

## Text

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

® <e «

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_0898%3A2. Public record. Not legal advice.