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

    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.

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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

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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.

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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

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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

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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.

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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.

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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

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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.

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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

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