League of United Latin American Citizens (LULAC) v. The Attorney General of the State of Texas Brief of Appellant
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September 6, 1991

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Brief Collection, LDF Court Filings. Hudson County Building and Construction Trades Council v. Jersey City Brief of Amici Curiae, 1996. ddb0918b-b89a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/3d009f5f-cacc-48da-a401-0c87107065cb/hudson-county-building-and-construction-trades-council-v-jersey-city-brief-of-amici-curiae. Accessed May 17, 2025.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY HUDSON COUNTY BUILDING AND CONSTRUCTION TRADES COUNCIL, AFL-CIO, Plaintiff, Civil Action No. 96-1619 (DRD) vs. CITY OF JERSEY CITY, Defendant. BRIEF OF AMICI CURIAE EMPLOYMENT LAW CENTER, NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., PUBLIC INTEREST LAW CENTER OF NEW JERSEY, AND GIBBONS FELLOWSHIP IN PUBLIC INTEREST AND CONSTITUTIONAL LAW OF CRUMMY, DEL DEO, DOLAN, GRIFFINGER & VECCHIONE IN OPPOSITION TO PLAINTIFFS MOTION FOR DECLARATORY JUDGMENT Elaine R. Jones Director-Counsel Theodore M. Shaw Norman J. Chachkin Paul K. Sonn NAACP Legal Defense & Educational Fund, Inc. 99 Hudson Street, 16th fl. New York, New York 10013 (212) 219-1900 William C. McNeill III Julian A. Gross Employment Law Center of the Legal Aid Society of San Francisco 1663 Mission Street, Suite 400 San Francisco, California 94103 (415) 864-8848 Renee Steinhagen (RS-4209) Public Interest Law Center of New Jersey 15 Washington Street Newark, New Jersey 07102 (201) 648-5687 James E. Ryan Crummy, Del Deo, Dolan, Griffinger & Vecchione One Riverfront Plaza Newark, New Jersey 07102 (201) 596-4711 September 10, 1996 Attorneys for Amici Curiae TABLE OF CONTENTS INTRODUCTION .................................................................................................................. 1 I. CITY ORDINANCE 96-022 DOES NOT VIOLATE THE PRIVILEGES AND IMMUNITIES C LA U SE............................................ 3 A. City Ordinance 96-022 Does Not Infringe on a Privilege Protected by the Privileges and Immunities Clause .................................. 3 B. Even If City Ordinance 96-022 Did Burden a Fundamental Privilege, It Would Still Survive Scrutiny Under the Privileges and Immunities C lause ................................................................. 5 II. CITY ORDINANCE 96-022 IS NOT PREEMPTED BY FEDERAL LABOR LAW ................................................................................ 8 A. As the City Is Acting as a Market Participant, Garmon and Machinists Preemption Doctrines Do Not A pp ly ............................. 10 B. Even If the City Were Not Acting as a Market Participant, City Ordinance 96-022 Would Not Be Preempted Under Garmon ......................................................................... 13 C. Even if the City Were Not Acting as a Market Participant, City Ordinance 96-022 Would Not Be Preempted Under M achinists...................................................................... 15 D. City Ordinance 96-022 Is Not Preempted by Section 301 of the Labor Management Relations A c t ................................................ 18 III. CITY ORDINANCE 96-022 DOES NOT VIOLATE THE EQUAL PROTECTION C L A U S E ....................................................................................... 20 CONCLUSION .................................................................................................................... 24 l TABLE OF AUTHORITIES 1st Westco Corp. v. School Dist. of Philadelphia, 811 F. Supp. 204 (E.D.Pa. 1993) ........................................................................ 1, 7 Alaska v. Enserch Alaska Constr., Inc., 787 P.2d 624 (Alaska 1 9 8 9 )................. ‘.................................................................. 21 Belknap v. Hale, 463 U.S. 491 (1983) ................................................................................................. 15 Building & Constr. Trades Council v. Associated Builders & Contractors, 507 U.S. 218 (1993) .......................................................................................... passim Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ..................................................................................................... 2 FCC v. Beach Communications, Inc., 124 L. Ed. 2d 211 (1993)......................................................................................... 21 Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992) ................................................................................................... 4 Fort Halifax Packing Co. v. Coyne, 482 U.S. 1 (1987) ............................................................................................ 15, 16, 17 Golden State Transit Corp. v. City of Los Angeles, 475 U.S. 608 (1986) ............................................................................................ 15, 16 Heller v. Doe, 125 L. Ed. 2d 257 (1993).......................................................................................... 22 International Org. of Masters v. Andrews, 626 F. Supp. 1271 (D. Alaska 1986), vacated in part on other grounds, 831 F.2d 843 (9th Cir. 1987) .......................................................... 6 Lingle v. Norge Div. of Magic Chef, 486 U.S. 399 (1988) ................................................................................................. 18 CASES Pages: ii Pages: Lividas v. Bradshaw, 129 L. Ed. 2d 93 (1994) ......................................................................................... 18 Machinists v. Wisconsin Employ. Rel. Comm’n, 427 U.S. 132 (1976) ......................................................................................... passim Malone v. White Motor Corp., 435 U.S. 497 (1978) ............................................................................................ 16, 17 Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976) ............................................................................................ 15, 19 Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) ................................................................................................... 4 McCarthy v. Philadelphia Civil Serv. Comm’n, 424 U.S. 645 (1976) ................................................................................................. 20 Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724 (1985) ..................................................................................... 14, 16, 17 Motor Coach Employees v. Lockridge, 403 U.S. 274 (1971) ................................................................................................. 17 Nebraska v. Wyoming, 123 L. Ed. 2d 317 (1993) .......................................................................................... 2 Plyler v. Doe, 457 U.S. 202 (1982) ................................................................................................. 19 Railroad Trainmen v. Jacksonville Term. Co., 394 U.S. 369 (1969) ................................................................................................. 15 Salem Blue Collar Workers Ass’n v. City of Salem, 33 F.3d 265 (3d Cir. 1994).................................................................................. 19, 20 San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959) .......................................................................................... passim Sears, Roebuck & Co. v. San Diego County, 436 U.S. 180 (1978) ............................................................................................ 3, 13 iii Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985) ......................................................................................... passim Teamsters v. Lucas Flour Co., 369 U.S. 95 (1962) ................................................................................................... 19 Textile Workers v. Lincoln Mills, 353 U.S. 448 (1957) ................................................................................................. 19 Toomer v. Witsell, 334 U.S. 385 (1948) .......................................................................................... 2, 5, 6 United Bldg. & Constr. Trades Council v. Camden, 465 U.S. 208 (1984) ......................................................................................... passim United States v. Salerno, 481 U.S. 739 (1987) ................................................................................................... 4 WCM Window Co. v. Bernardi, 730 F.2d 486 (7th Cir. 1984) ................................................................................ 1, 7 Ward v. Rock Against Racism, 491 U.S. 781 (1989) ................................................................................................... 4 Wisconsin Dept, of Industry v. Gould, 475 U.S. 282 (1986) ................................................................................................. 13 STATUTES Fed. R. Civ. P. 5 6 ............................................................................................................... 2, 4 Labor Management Relations Act, § 301, 29 U.S.C. § 185 .................................... passim MISCELLANEOUS Werner Z. Hirsch, The Constitutionality of State Preference (Residency) Laws Under the Privileges and Immunities Clause, 22 S.W.U.L.Rev. 1 (1992) ........................................................................... 6 Pages: IV Pages: Equal Protection Clause, U.S. Const, amend. XIV..................................................................................... passim Jersey City Ordinance 96-022 ..................................................................................... passim Privileges and Immunities Clause, U.S. Const, art. IV.................................. ‘........................................................... passim v INTRODUCTION The Jersey City "first source" ordinance at issue in this case has been drawn with extraordinary care to avoid conflict with federal constitutional or statutory law. It mandates only that contractors who choose to bid on such projects agree to interview and consider for possible employment Jersey City residents seeking construction jobs. While it articulates a goal of 51% City residents among the workforce for such projects, it does not require that a single City resident be hired. Instead, it merely asks that contractors file reports and explain their decisions not to employ City residents whom they determine through the interview process not to be qualified for these jobs. The Jersey City first source ordinance includes none of the characteristics that doomed local laws in such cases as 1st Westco Corp. v. School Dist. o f Philadelphia, 811 F. Supp. 204 (E.D. Pa. 1993), and WCM Window Co. v. Bemardi, 730 F.2d 486 (7th Cir. 1984), both of which involved mandatory, 100% resident-hiring provisions. Plaintiff s argument comes down to the proposition that the procedural and reporting requirements of the ordinance create an "incentive to hire City residents in preference to out-of-state residents," Plaintiffs Brief ("PI. Br.") at 16, which plaintiff would have this Court treat as the functional equivalent of a hiring quota. As we discuss below, none of the cases upon which plaintiff relies support this proposition. In short, the ordinance that plaintiff challenges is a modest but important initiative to expand outreach and access to potential jobs for City residents without interfering with the contractor’s authority to decide which qualified job applicants it will hire. Like the reduction of the sales tax in economically depressed municipalities, Jersey City’s contractually based expanded job referral program under this ordinance is a measured, cautious and wholly legitimate effort to improve the general welfare of its citizens and increase self-sufficiency. It deserves this Court’s deference, rather than the condemnation sought by plaintiff. See United Bldg. & Constr. Trades Council v. Camden, 465 U.S. 208, 222-23 (1984) ("Every inquiry under the Privileges and Immunities Clause ‘must . . . be conducted with due regard for the principle that the States should have considerably leeway in analyzing local evils and in prescribing local cures’") (quoting Toomer v. Witsell, 334 U.S. 385, 398 (1948)). Plaintiff has, in effect, moved for entry of summary judgment on all three of its claims.1 In order to be entitled to summary judgment, there cannot exist a genuine issue as to any material fact and, on those undisputed facts, the movant must be entitled to judgment as a matter of law. Nebraska v. Wyoming, 123 L. Ed. 2d 317, 329 (1993); F e d . R. Civ. P. 56(c).2 1Plaintiff has styled its papers as a "motion for declaratory judgment." However, plaintiff correctly acknowledges that, in fact, what it seeks is a grant of summary judgment awarding declaratory relief, and that summary judgment is governed by the standard set out in FED. R. Civ. P. 56. PI. Br. at 10. 2Although defendant City has not moved for summary judgment, a district court may enter summary judgment sua sponte on claims pending before it so long as the losing party has been put on notice to come forward with evidence, and the requirements for summary judgment are otherwise satisfied. Celotex Corp. v. Catrett, M l U.S. 317, 326 (1986). 2 I. CITY ORDINANCE 96-022 DOES NOT VIOLATE THE PRIVILEGES AND IMMUNITIES CLAUSE Plaintiff argues that it is entitled to summary judgment on its claim that City Ordinance 96-022 violates the Privileges and Immunities Clause of Article IV of the U.S. Constitution, which bars states and localities from discriminating against out-of-state residents as regards access to certain types o f‘benefits. However, "it is only with respect to those privileges and immunities bearing on the vitality of the Nation as a single entity that a State must accord residents and nonresidents equal treatment." Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 279 (1985) (quoting Baldwin v. Montana Fish and Game Comm’n, 436 U.S. 371, 383 (1978)) (internal quotation marks omitted). As explained in detail in defendant Jersey City’s brief, the modest requirements of City Ordinance 96-022 do not implicate the Privileges and Immunities Clause. Even if the Privileges and Immunities Clause were applicable, City Ordinance 96-022 would satisfy the Clause’s requirements as set forth by the Supreme Court. A. City Ordinance 96-022 Does Not Infringe on a Privilege Protected by the Privileges and Immunities Clause Not every ordinance containing distinctions based on residence violates the Privileges and Immunities Clause. The Supreme Court has held that, "[a]s an initial matter, the Court must decide whether the ordinance burdens one of those privileges and immunities protected by the Clause." United Bldg. & Const. Trades Council v. Camden, 465 U.S. 208 (1984) ("Camden") (citing Baldwin, 436 U.S. at 383). "Not all forms of discrimination against citizens of other states are constitutionally suspect." Id. In order to implicate the Privileges and Immunities Clause, the subject matter of a challenged ordinance must "bear[] 3 on the vitality of the Nation as a single entity," see Piper, 470 U.S. at 279, and Camden, 465 U.S. at 218, and be "‘fundamental’ to the promotion of interstate harmony." Camden, 465 U.S. at 218 (quoting Baldwin, 436 U.S. at 388). City Ordinance 96-022 does not implicate such a privilege. As described in defendant Jersey City’s brief, the ordinance does not require that employers prefer Jersey City residents over others. With regard to hiring by unionized construction contractors — the only sort of hiring that plaintiffs have standing to challenge — Section E(2) of the ordinance’s Mandatory Construction Contract Provisions (appended to plaintiff s complaint) sets forth the minimum responsibilities expected of contractors on City-subsidized projects. The section simply requires certain communications with the City government and consideration of certain Jersey City residents. The section does not restrict employers’ ability to consider other, non-Jersey City residents for these same jobs, nor does it require employers to prefer Jersey City residents over others. Plaintiffs members may still apply for covered employment and be treated fairly when they do apply; they are thus unhindered in their "pursuit of a common calling," see Camden, 465 U.S. at 219. Plaintiffs members have only one interest that has been infringed by the ordinance: their interest in applying for open jobs without having potential employers consider certain candidates from Jersey City. While it is certainly understandable that plaintiff wants to protect its interest in sheltered competition, this interest obviously does not rise to the level of a "fundamental" privilege protected by the Privileges and Immunities Clause. Plaintiffs privileges and immunities claim therefore fails. Indeed, since the threshold applicability of the Privileges and Immunities Clause is a pure question of law, defendant — not plaintiff 4 — would be entitled to summary judgment on this claim.3 B. Even If City Ordinance 96-022 Did Burden a Fundamental Privilege, It Would Still Survive Scrutiny Under the Privileges and Immunities Clause "[L]ike many other constitutional provisions, the privileges and immunities clause is not an absolute." Piper, 470 U.S. at 284, quoting Toomer v. Witsell, 334 U.S. 385, 396 (1948). Even if City Ordinance 96-022 did burden a fundamental privilege, it would still meet the requirements of the Privileges and Immunities Clause. The Piper Court held that "[t]he Clause does not preclude discrimination against nonresidents where "(i) there is a substantial reason for the difference in treatment; and (ii) the discrimination practiced against nonresidents bears a substantial relationship to the State’s objective." Piper, 470 U.S. at 284. The justifications for City Ordinance 96-022 set forth in defendant Jersey City’s brief clearly satisfy this test. 3Plaintiff may, of course, disagree with the descriptions of the program’s actual operation as set forth in this section and in defendant’s brief. To the extent that the ordinance’s language is open to interpretations with varying implications for the measure’s constitutionality, plaintiffs facial challenge cannot succeed. Outside of the First Amendment context, a plaintiff bringing a facial challenge to an ordinance must demonstrate that the ordinance cannot be applied constitutionally in any set of circumstances. United States v. Salerno, 481 U.S. 739, 745 (1987). The Supreme Court has stated that "[i]n evaluating [a] facial challenge, we must consider [the enacting body’s] authoritative constructions of the ordinance, including its own implementation and interpretation of it." Forsyth County v. Nationalist Movement, 505 U.S. 123, 131 (1992). "Administrative interpretation and implementation of a regulation are, of course, highly relevant to our analysis, for ‘in evaluating a facial challenge to a state law, a federal court must . . . consider any limiting construction that a state court or enforcement agency has proffered.’" Ward v. Rock Against Racism, 491 U.S. 781, 795-96 (1989) (quoting Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, n.5 (1982)). To the extent that disagreement over the operation of the statute constitutes a factual dispute, resolution is inappropriate on summary judgment, FED. R. Civ. P. 56(c), and "inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). 5 Plaintiff relies heavily on the Supreme Court’s decision in Camden; a few points about this decision bear emphasis. First, the Supreme Court made clear that the fact that a challenged ordinance covers only city-funded projects weighs heavily towards that ordinance’s constitutionality: The fact that Camden is expending its own funds or funds it administers in accordance with the terms of a grant is certainly a factor — perhaps the crucial factor — to be considered in evaluating whether the statute’s discrimination violates the privileges and immunities clause. Camden, 465 U.S. at 221 (emphasis added). While the Court declined to establish a blanket market-participant exception to the clause, it made clear that "caution" on the part of reviewing courts is "particularly appropriate" where, as here, "a government body is merely setting conditions on the expenditure of funds it controls." Camden, 465 U.S. at 223. The fact that City Ordinance 96-022 covers only City-subsidized projects thus carries important implications for its constitutionality. In addition, the Supreme Court cast no doubt on Camden’s ability to justify its ordinance on grounds similar to those offered by Jersey City. Camden argued that its ordinance was "necessary to counteract grave economic and social ills," including "spiraling unemployment." Camden, 465 U.S. at 222. The Court could have dismissed these factors as insufficient to justify Camden’s ordinance even if proven, but chose instead to remand for factual findings. Camden, 465 U.S. at 223. In so doing, the Court held that "[ejvery inquiry under the Privileges and Immunities Clause ‘must . . . be conducted with due regard for the principle that the States should have considerable leeway in analyzing local evils and in prescribing local cures.’" Camden, 465 U.S. at 222-23, quoting Toomer, 334 U.S. at 396. Note also that the standards set forth in the Supreme Court’s more recent Piper 6 decision do not include Camden's requirement that nonresidents "constitute a peculiar source of the evil at which the statute is aimed." See Camden, 465 U.S. at 222, quoting Toomer, 334 U.S. at 398. The court in International Org. of Masters v. Andrews, 626 F.Supp. 1271, 1283, n.12 (D. Alaska 1986), vacated in part on other grounds, 831 F.2d 843, 847 (9th Cir. 1987), recognizing that this requirement was "conspicuously omitted," held that the Piper decision "reformulated], albeit slightly, the analysis to be applied in privileges and immunities cases."4 The Andrews court noted that the "peculiar source of the evil" test seemed "especially inappropriate" in that case, where the "evils" at which the challenged statute was aimed "seem systemic and largely unattributable to individual persons." Id. Such is the situation in Jersey City, and this court should follow Piper in forsaking Camden's "peculiar source of the evil" test when it evaluates City Ordinance 96-022. The requirements of City Ordinance 96-022 are not nearly as burdensome with regard to non-residents as were the challenged ordinances in the other cases relied on by plaintiff. 1st Westco Corp. v. School Dist. o f Philadelphia, 811 F.Supp. 204 (E.D. Pa. 1993), concerned a Pennsylvania statute establishing a 100% resident quota on certain construction projects, and WCM Window Co. v. Bemardi, 730 F.2d 486 (7th Cir. 1984), concerned an Illinois statute establishing a similar 100% resident quota, enforceable by criminal penalties including jail time. City Ordinance 96-022 is much more modest, simply requiring consideration of Jersey City residents on projects paid for by Jersey City. This minimal requirement is amply justified by the City’s prevailing social and 4At least one commentator has also noted this development. See Werner Z. Hirsch, The Constitutionality o f State Preference (Residency) Laws Under the Privileges and Immunities Clause, 22 Sw. U. L. Rev. 1, 18 (1992). 7 economic conditions, and the need to ensure that City subsidies alleviate these problems to the maximum possible extent. These interests provide the "substantial reason" for the ordinance’s distinction between City residents and others, as required by Piper, 470 U.S. at 284, and the ordinance certainly bears a "substantial relationship" to this reason, id. Thus, even if City Ordinance 96-022 were found to implicate the Privileges and Immunities Clause, it would satisfy the relevant constitutional requirements. At a minimum, the justifiability of the ordinance under the clause would implicate disputed questions of fact concerning the social problems addressed by the ordinance, thus rendering summary judgment on the claim inappropriate. II. CITY ORDINANCE 96-022 IS NOT PREEMPTED BY FEDERAL LABOR LAW Plaintiff advances a variety of theories in an effort to establish that City Ordinance 96-022 constitutes governmental regulation that is preempted by federal labor law. None of these theories is sustainable under relevant Supreme Court precedent. Plaintiffs preemption arguments, set forth at pages 24 to 31 of its brief, commingle language and case citations from at least three distinct theories of preemption under federal labor law: preemption under San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959) ("Garmon preemption"); preemption under Machinists v. Wisconsin Employ. Rel. Comm’n, 427 U.S. 132 (1976) ("Machinists preemption"); and preemption under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185 ("Section 301 preemption"). These theories are unavailing for several reasons. First, the Garmon and Machinists preemption doctrines simply do not apply where, as here, the defendant governmental entity is acting as a market participant rather than as 8 a regulator. Building & Constr. Trades Council v. Associated Builders & Contractors, 507 U.S. 218 (1993) ("Associated Builders"). Second, even were the City not acting as a market participant, City Ordinance 96-022 would still not be preempted under Garmon or Machinists. Finally, Section 301 preemption, although unaffected by the City’s market participant status, is nonetheless inapplicable. Accordingly, plaintiff is not entitled to summary judgment on this claim. Indeed, since the facts relevant to these preemption inquiries are largely undisputed, it is defendant, not plaintiff, that is likely entitled to judgment on the preemption issues. Before discussing this preemption analysis in detail, we wish first to make clear how implausibly sweeping plaintiffs position is. The ordinance — which applies only to employers that have voluntarily elected to work on City-subsidized development projects — is implemented by means of the individual contractual agreements between subsidy recipients and those private contractors choosing to work on their projects. Plaintiff contends that problems arise for unions because, as the result of entirely separate negotiations to which the City is not a party, unions and unionized employers have entered into collective bargaining agreements ("CBAs") that plaintiff contends would make it impossible for such employers, were they to work on a City-subsidized project, to comply with the ordinance and the required implementing agreement. Plaintiff charges that this conflict — if it indeed exists — means that the City, through the ordinance and implementing agreements, is somehow "regulating" the relationship between the employers and the unions. This cannot be the law. Were this theory of preemption correct, it would mean that the terms that the City may negotiate in a voluntary 9 agreement with a recipient of a City subsidy would be subject to veto if, in entirely independent negotiations with its union, that recipient agreed to some conflicting terms. Simply put, the City has no obligation to restrict the terms of its agreements with subsidy recipients to those consistent with contractual agreements any given employer may have entered into. If a given employer has locked itself into a CBA which would preclude it from agreeing to comply with the terms of the ordinance, so be it — that employer may simply have to forego contracting to work on a City-subsidized project. Federal labor law cannot possibly bar the City from requesting contract terms that would conflict with CBAs to which it is not a party. A. As the City Is Acting as a Market Participant, Garmon and Machinists Preemption Doctrines Do Not Apply In the Associated Builders case, a unanimous Supreme Court held that the Garmon and Machinists National Labor Relations Act ("NLRA") preemption doctrines do not apply when governmental behavior constitutes market participation, rather than simple regulation of private parties. Plaintiff in that case, an association of non-union contractors, had challenged the City of Boston’s requirement that all contractors on a particular public works project agree to abide by the provisions of a Project Labor Agreement; the Project Labor Agreement mandated, inter alia, that the union hiring halls be the primary source for labor on the project, and that all employees on the project become union members within seven days of commencing employment. The Court upheld this requirement against Machinists and Garmon challenges, on grounds that when a state or locality "interact[s] with private participants in the marketplace . . . the State is not subject to pre-emption by the NLRA, because pre-emption doctrines apply only to state regulation." Associated Builders, 10 507 U.S. at 227. The Court held that the challenged requirement was "not government regulation and that it [was] therefore subject to neither Garmon nor Machinists preemption." Associated Builders, 507 U.S. at 232. City Ordinance 96-022 likewise constitutes market participation rather than regulation, as it is similar in relevant respects to Boston’s requirement at issue in Associated Builders. Like that of the City of Boston, Jersey City’s challenged requirements apply only to projects receiving city funds: City Ordinance 96-022 takes effect only on projects that have received a City subsidy worth more than $25,000. Ordinance § 3.C. The Associated Builders Court held that "[t]o the extent that a private purchaser may choose a contractor based upon that contractor’s willingness to enter into a pre-hire agreement, a public entity as purchaser should be permitted to do the same." Associated Builders, 507 U.S. at 231. Whether in the form of a tax abatement, a discounted land sale, or award of a discretionary grant, City subsidies that implicate City Ordinance 96-022 are valuable, and, like any private party, the City may dictate the terms on which it wants to spend its money. When the City does so, as it has with City Ordinance 96-022, it is participating in the market rather than acting in a regulatory capacity. Also relevant in Associated Builders was the fact that those governed by the challenged requirement chose to be so governed: "[Tjhose contractors who do not normally enter [project labor] agreements are faced with a choice. They may alter their usual mode of operation to secure the business opportunity at hand, or seek business from purchasers whose perceived needs do not include a project labor agreement." Associated Builders, 507 U.S. at 231. Those subject to the challenged requirement were voluntary participants in 11 a marketplace transaction, rather than unconsenting subjects of government regulation. The situation is similar in Jersey City: developers may choose to accept City subsidies, contractors may choose to submit bids to work on these subsidized projects, and workers may choose to seek employment with these contractors. All these parties are free to decide to make money by participating in subsidized projects, or not — but if they do choose to participate, they must do so under the terms the City has set for receipt of the subsidy. In Jersey City, as in Boston, no one is forced to participate in a project with restrictions he or she doesn’t like, but one might say that if you take the king’s coin, you dance the king’s dance. Plaintiff attempts to distinguish Associated Builders by arguing that "the City Ordinance interferes in the marketplace for public and private construction in a matter [sic] prohibited by the NLRA." PI. Br. at 28. This argument, devoid of cited authority, is unpersuasive. The existence of an NLRA violation is of course the very question at issue in this case, as it was in Associated Builders. Regardless, this point, even if it were true, says nothing about the proprietary or regulatory character of the City’s action. Plaintiff also argues that the ordinance’s coverage of projects receiving state- or federally- funded grants distributed by the City "goes beyond its claim that it is merely acting as a market participant." PI. Br. at 29. However, the source of the funds the city chooses to distribute is irrelevant to the market participant inquiry. City Ordinance 96-022 only covers projects subsidized by federal and state grants "requiring the approval of the Municipal Council." City Ordinance § 3.C. Thus, with regard to a particular project, distribution of the grant is subject to the City’s discretion. The City still will be negotiating 12 with individual private parties, rather than regulating, and it will still be trying to get the most for its money, like any private individual. The source of the City’s funding for discretionary expenditures does not affect its status as a market participant.5 Like the challenged requirement in Associated Builders, City Ordinance 96-022 only applies when the City spends funds it controls, and takes effect through negotiated agreements with private parties who participate voluntarily. It entails no exercise of regulatory authority whatsoever. This is a paradigmatic instance of market participation and, under Associated Builders, neither the Machinists nor the Garmon doctrine applies. B. Even If the City Were Not Acting as a Market Participant, City Ordinance 96-022 Would Not Be Preempted Under Garmon Under San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959), states, and by implication localities, "may not regulate activity that the NLRA protects, prohibits, or arguably protects or prohibits." Wisconsin Dept, o f Industry v. Gould, 475 U.S. 282, 285 (1986). "[T]he Garmon rule prevents States not only from setting forth standards of conduct inconsistent with the substantive requirements of the NLRA, but also from providing their own regulatory or judicial remedies for conduct prohibited or arguably prohibited by the Act." Id. The Garmon line of cases thus sets forth two distinct rules: (1) it prohibits states from penalizing conduct that the NLRA protects, and (2) it prohibits states from penalizing conduct already prohibited by the NLRA, and thus subject to disciplinary action by the National Labor Relations Board. A typical claim under the first 5Even if this Court found that the city was not a market participant with respect to its discretionary distribution of state- and federally-funded grants, its status when distributing other types of subsidies would be unaffected. 13 of these rules was presented in Sears, Roebuck & Co. v. San Diego County, 436 U.S. 180 (1978), in which a union asserted that California penalized protected conduct when it enforced a state trespass law against picketing union members. A typical claim under the second of these rules was presented in Wisconsin Dept, of Industry v. Gould, 475 U.S. 282 (1986), in which a private corporation asserted that the state of Wisconsin penalized prohibited conduct when it refused to contract with companies repeatedly punished by the NLRB. City Ordinance 96-022 violates neither Garmon rule. The strongest possible reading of City Ordinance 96-022 would be that it regulates the substance of an area which is often the subject of collective bargaining. Assuming arguendo both that the ordinance constitutes such a substantive regulation and that the City is not acting as a market participant, the ordinance still does not implicate Garmon. The NLRA is unconcerned with the substantive terms which result from the collective bargaining process; regulation that affects these terms without infringing on the collective bargaining process itself cannot violate Garmon. A unanimous Supreme Court made this clear in Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724 (1985). Plaintiffs challenged a Massachusetts statute requiring that certain health insurance policies purchased by employers provide minimum mental health benefits; some of these plans were purchased pursuant to collective bargaining agreements, so the terms of these plans were subject to collective bargaining. Like Plaintiff here, appellants in Metropolitan Life argued that the statute "mandatefd] the terms of collective-bargaining agreements." Metropolitan Life, 471 U.S. at 749. The Court took all of one sentence to reject the applicability of Garmon: "There 14 is no claim here that Massachusetts has sought to regulate or prohibit any conduct subject to the regulatory jurisdiction of the NLRB, since the [NLRA] is silent as to the substantive provisions of welfare-benefit plans." Garmon, 358 U.S. at 748-49. The NLRA is likewise silent as to the substantive provisions of referral systems for construction employment, and Garmon is thus similarly inapplicable. As City Ordinance 96-022 neither penalizes protected conduct, nor penalizes conduct already prohibited by the NLRA, any claim plaintiffs make under Garmon must fail. C. Even if the City Were Not Acting as a Market Participant, City Ordinance 96-022 Would Not Be Preempted Under Machinists Under Lodge 76, Int’l Ass'n o f Machinists v. Wisconsin Employ. Rel. Comm’n, 427 U.S. 132 (1976) ('Machinists"), states and localities may not "impos[e] ... restrictions on economic weapons of self-help." Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 19 (1987), quoting Golden State Transit Corp. v. City o f Los Angeles, 475 U.S. 608, 614 (1986).6 Machinists held that the state of Wisconsin could not designate as an unfair labor practice the concerted refusal of union members to work overtime, as such designation would "deny[] one party to an economic contest a weapon that Congress meant him to have available." Machinists, 427 U.S. at 150 (quoting secondary authority). Like Garmon preemption, Machinists preemption focuses on the process of collective bargaining, rather than the substantive results of that process: "Whether self-help economic activities are employed by employer or union, the crucial inquiry regarding preemption is 6Machinists preemption concerns state regulation of economic weapons neither protected by § 7 nor forbidden by § 8 of the NLRA, and thus outside the scope of Garmon preemption. 15 the same: whether ‘the exercise of plenary state authority to curtail or entirely prohibit self-help would frustrate effective implementation of the Act’s processes.’" Machinists, 427 U.S. at 2557 (emphasis added), quoting Railroad Trainmen v. Jacksonville Term. Co., 394 U.S. 369, 380 (1969). The collective bargaining process is protected in order to maintain the balance of power between labor and management established by the NLRA. See Golden State Transit v. City o f Los Angeles, 475 U.S. 608, 614 (1986); Belknap v. Hale, 463 U.S. 491, 499 (1983); Machinists, 427 U.S. at 146. A city or state might upset this balance of power by pressuring an employer to end a strike, as in Golden State Transit, 475 U.S. at 614, or by penalizing concerted refusal to work overtime, as in Machinists itself. Even if the City were not acting as a market participant when following City Ordinance 96-022, the ordinance would not violate the Machinists doctrine. The ordinance in no way restricts the economic weapons that either plaintiff or area contractors have available, or otherwise alters the balance of power between labor and management. City Ordinance 96-022 is a substantive provision, unrelated to the process of collective bargaining. Plaintiff makes no effort to analogize City Ordinance 96-022 to actions challenged in any of the Machinists cases. Plaintiff simply states that "Since hiring hall provisions are a mandatory subject of negotiations and have been left to the free play of economic forces in the private sector, they are beyond the regulatory ambit of municipalities such as Jersey City." Several cases in the Machinists line do indeed refer to the doctrine as protecting areas meant to be subject to the "free play of economic forces," see, e.g., Golden State Transit, 475 U.S. at 614; this phrase is simply the Court’s term for the protected aspects of 16 the collective bargaining process. Plaintiffs bald assertion that City Ordinance 96-022 falls into this protected category is contradicted by clear Supreme Court precedent. Plaintiffs strongest characterization of City Ordinance 96-022 is that it regulates in an area which is subject to collective bargaining. The Supreme Court has repeatedly rejected the argument that such regulation violates Machinists. See Fort Halifax Packing Co., 482 U.S. 1; Metropolitan Life Ins. C.o, 471 U.S. 724; Malone v. White Motor Corp., 435 U.S. 497 (1978). In Fort Halifax, for example, the Court rejected a Machinists challenge to a state statute requiring severance pay; an employer had argued that the law regulated an area subject to collective bargaining, and thus interfered with the collective bargaining process, in violation of Machinists. In rejecting this argument, the Court explained: [Tjhe mere fact that a state statute pertains to matters over which the parties are free to bargain cannot support a claim of pre-emption, for ‘there is nothing in the NLRA . . . which expressly forecloses all state regulatory power with respect to those issues . . . that may be the subject of collective bargaining.’ Fort Halifax, 482 U.S. at 21-22, quoting Malone, 435 U.S. at 504-05. City Ordinance 96-022 is a substantive law that forms the "backdrop" for negotiations between labor and management, see Fort Halifax, 482 U.S. at 21, like minimum wage laws, occupational safety laws, and the myriad other state and local laws which touch upon areas that might be the subject of collective bargaining. The Supreme Court has recognized that it "cannot declare pre-empted all local regulation that touches or concerns in any way the complex interrelationships between employees, employers, and unions . . . ." Metropolitan Life, 471 U.S. at 757, quoting Motor Coach Employees v. Lockridge, 403 U.S. 274 (1971). As explained in Metropolitan Life and reaffirmed in Fort Halifax, "The NLRA is 17 concerned primarily with establishing an equitable process for determining terms and conditions of employment, and not with particular substantive terms of the bargain that is struck when the parties are negotiating from relatively equal positions." Metropolitan Life, 471 U.S. at 753 (emphasis added); see also Fort Halifax, 482 U.S. at 20. As City Ordinance 96-022 is a purely substantive law that leaves untouched the collective bargaining process, it does not violate the Machinists doctrine.7 D. City Ordinance 96-022 Is Not Preempted by Section 301 of the Labor Management Relations Act. Plaintiff also argues that City Ordinance 96-022 is preempted by Section 301 of the Labor Management Relations Act. PI. Br. at 29-31. This argument stretches preemption under Section 301 far beyond its contours as set forth by the Supreme Court. Section 301 "not only provides federal-court jurisdiction over controversies involving collective bargaining agreements, but also authorizes federal courts to fashion a body of federal law for the enforcement of these collective bargaining agreements." Lingle v. Norge Div. of Magic Chef, 486 U.S. 399, 404 (1988). This core purpose requires that, in interpretation of collective bargaining agreements, "state contract law must yield to the developing federal common law, lest common terms in bargaining agreements be given different and potentially inconsistent interpretations in different jurisdictions." Lividas v. Bradshaw, 129 7Moreover, experience teaches that plaintiffs claims of irreconcilable conflict between union rules and the ordinance are very likely false. When other cities such as Oakland, California have enacted "first source" hiring laws like Jersey City’s, construction trades unions, after first leveling charges like those here, have found ways to accommodate the rules so that unionized firms and workers could continue to work on municipal construction projects. One can be fairly confident that similar solutions can be worked out in Jersey City. 18 L. Ed. 2d 93, 109 (1994). While modern Supreme Court decisions have expanded the reach of Section 301 preemption somewhat beyond this core, the Lividas opinion — unmentioned in plaintiffs papers, and more recent than any of plaintiffs cited authority — delineates its furthest reaches: [T]he preemption rule has been applied only to assure that the purposes animating § 301 will be frustrated neither by state laws purporting to determine "questions relating to what the parties to a labor agreement agreed, and what legal consequences were intended to flow from breaches of that agreement," Lueck, 471 U.S. at 211, nor by parties’ efforts to renege on their arbitration promises by "relabeling" as tort suits actions simply alleging breaches of duties assumed in collective-bargaining agreements, id. at 219 [(citing Republic Steel Corp. v. Maddox, 379 U.S. 650 (1965))]. Lividas, 129 L. Ed. 2d at 109 (emphasis added). City Ordinance 96-022 does not remotely touch upon the purposes of Section 301. The ordinance in no way encourages inconsistent adjudications as to the meaning of a collective bargaining agreement: if a lawsuit involving City Ordinance 96-022 somehow turned on interpretation of a collective bargaining agreement, that interpretation would, consistent with Section 301, be made under federal law. Nothing in City Ordinance 96-022 says otherwise. The ordinance does not invoke state tort or contract law to interpret the meaning of a collective bargaining agreement, cf Teamsters v. Lucas Flour Co., 369 U.S. 95 (1962), and it has no connection with disputes over arbitrability, cf. Textile Workers v. Lincoln Mills, 353 U.S. 448 (1957). City Ordinance 96-022 is wholly consistent with even a broad construction of Section 301. 19 III. CITY ORDINANCE 96-022 DOES NOT VIOLATE THE EQUAL PROTECTION CLAUSE Plaintiff also argues that by creating a job referral and outreach system for its residents, City Ordinance 96-022 impermissibly discriminates against non-residents in violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. This argument is frivolous. Under federal equal protection doctrine, a "strict scrutiny" standard of review applies to government policies or laws that either (1) make distinctions on the basis of certain inherently suspect characteristics (such as race, ethnicity, national origin, and religion); or (2) restrict the exercise of certain "fundamental" rights (such as the right to vote or of access to the courts). Plyler v. Doe, 457 U.S. 202, 216-17 (1982). There is no support in the authorities for the contention that either (1) "discrimination" against non-residents of a municipality implicates a suspect classification, or (2) access to a referral program for jobs on municipally subsidized projects implicates a fundamental right. Rather, binding Supreme Court and Third Circuit precedent both hold that municipal laws establishing local residency requirements for city jobs are not subject to strict scrutiny. Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 313 (1976); Salem Blue Collar Workers Ass’n v. City of Salem, 33 F.3d 265, 271 (3d Cir. 1994). Indeed, these and other cases hold squarely that municipal residency requirements are subject only to deferential "rational basis" review under the Equal Protection Clause and that, under that lenient standard, such measures are unquestionably constitutional. McCarthy v. Philadelphia Civil Serv. Comm’n, 424 U.S. 645, 647 (1976); Salem Blue Collar Workers Ass’n, 33 F.3d at 271. These cases concern laws establishing absolute local residency requirements — in 20 effect, a 100% quota — as a condition of eligibility for certain municipal jobs. If such sweeping measures that bar all non-residents from city employment are constitutional, there can be no question that City Ordinance 96-022, which simply gives Jersey City residents a special opportunity to be interviewed by employers benefiting from City subsidies — with absolutely no guarantee or requirement of employment — is surely legal. Indeed, the Supreme Court has gone to great lengths to stress the extraordinary deference of rational basis review: In areas of social and economic policy, a [legislative] classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. This standard of review is a paradigm of judicial restraint. The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process, and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted. On rational-basis review, a classification in [a piece of legislation] comes to us bearing a strong presumption of validity, and those attacking the rationality of the legislative classification have the burden to negative every conceivable basis which might support it. Moreover, because we never require a legislature to articulate its reasons for enacting a statute, it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature. Thus, the absence of legislative facts explaining the distinction on the record has no significance in rational basis analysis. In other words, a legislative choice is not subject to courtroom factfinding, and may be based on rational speculation unsupported by evidence or empirical data. FCC v. Beach Communications, Inc., 124 L. Ed. 2d 211, 221-22 (1993) (citations and internal quotation marks omitted). Attacking the entrenched unemployment and poverty that afflict Jersey City is surely a legitimate government purpose. The City’s chosen means — City Ordinance 96-022 mandating that City residents have the opportunity to be 21 interviewed for jobs on City-subsidized projects — is an eminently "rational" strategy for pursuing that end. In the portion of its brief addressing this claim, see PI. Br. at 21-23, plaintiff cites but a single legal authority: Alaska v. Enserch Alaska Constr., Inc., 787 P.2d 624 (Alaska 1989). Enserch, however, interprets the equal protection provision of the Alaska Constitution, using different standards than those applicable in Fourteenth Amendment cases. The Alaska Supreme Court there observed that the Alaska Constitution "often provides greater protection for individual rights than does the U.S. Constitution," 787 P.2d at 631, as was the case in that instance. Enserch simply provides no support for plaintiffs federal claim. Plaintiff notes that City Ordinance 96-022 fails to afford unemployed non-residents access to the job referral system that it creates, PI. Br. at 22. This objection is of no moment. First, Jersey City has obvious economic reasons for being more concerned about poverty and unemployment in Jersey City than elsewhere: such poverty burdens the City’s social service systems, erodes its tax base, and contributes to crime in Jersey City. Second, "[the Supreme Court] has made clear that a [governmental body] need not strike at all evils at the same time or in the same way, and that a [governmental body] may implement its program step by step, . . . adopting regulations that only partially ameliorate a perceived evil and deferring complete elimination of the evil to future regulations. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 466 (1981) (citations and internal quotation marks omitted). Plaintiff also notes that the ordinance does not "prioritize" relief since it does not give poor and unemployed Jersey City residents preference for job referrals over other City 22 residents, PI. Br. at 22. This point too is unavailing. [C]ourts are compelled under rational basis review to accept a legislature’s generalizations even when there is an imperfect fit between means and ends. A classification does not fail rational basis review because it is not made with mathematical nicety or because, in practice, it results in some inequality. The problems of government are practical ones and may justify, if they do not require, rough accommodations -- illogical, it may be, and unscientific." Heller v. Doe, 125 L. Ed. 2d 257, 271 (1993) (citations and internal quotation marks omitted). There can be no question that City Ordinance 96-022 easily satisfies the rational basis standard. 23 CONCLUSION For the foregoing reasons, amici respectfully suggest that plaintiffs motion for summary judgment be denied. Respectfully submitted, Elaine R. Jones Director-Counsel Theodore M. Shaw Norman J. Chachkin Paul K. Sonn NAACP Legal Defense & Educational Fund, Inc. 99 Hudson Street, 16th fl. New York, New York 10013 (212) 219-1900 William C. McNeill III Julian A. Gross Employment Law Center of the Legal Aid Society of San Francisco 1663 Mission Street, Suite 400 San Francisco, California 94103 (415) 864-8848 (RS-4209) Public Interest Law Center of New Jersey 15 Washington Street Newark, New Jersey 07102 (201) 648-5687 James E. Ryan Crummy, Del Deo, Dolan, Griffinger & Vecchione One Riverfront Plaza Newark, New Jersey 07102 (201) 596-4711 Attorneys for Amici Curiae September 10, 1996 24