Opinion
Civil Action 01 cv 00950 (HHK)
January 2, 2002
MEMORANDUM OPINION
Executive Order 13,201 ("Executive Order" or "Order") requires employers who have federal government contracts to post notices informing their employees of their rights not to join a union or pay certain union fees. Federal government contractors who do not comply face cancellation of their contracts and debarment from future government contracts. Contending that the Order is preempted by the National Labor Relations Act, 29 U.S.C. § 151 et seq., ("NLRA"), and was issued without authority, plaintiffs seek a declaration that the Order is invalid and to enjoin its continued implementation. Before the court are defendant's motion to dismiss and the parties' cross-motions for summary judgment. Upon consideration of the motions, the opposition thereto, and the record of the case, this court concludes that defendant's motions to dismiss and for summary judgment must be denied. Also, because the Executive Order is preempted by the National Labor Relations Act, plaintiffs' motion for summary judgment and request for injunctive and declaratory relief must be granted.
I. FACTUAL BACKGROUND
Executive Order 13,201 was signed into law by the President on February 17, 2001, and became effective on April 18, 2001. The Order operates by requiring "all Government contracting departments and agencies" to include a number of clauses in "every Government contract" worth over $100,000 solicited after the Order's effective date. Order § 2(a). The first required clause mandates that the contractor post at its workplaces a notice that includes the following information:
NOTICE TO EMPLOYEES
Under Federal law, employees cannot be required to join a union or maintain membership in a union in order to retain their jobs. Under certain conditions, the law permits a union and an employer to enter in a union-security agreement requiring employees to pay uniform periodic dues and initiation fees. However, employees who are not union members can object to the use of their payments for certain purposes and can only be required to pay their share of union costs relating to collective bargaining, contract administration, and grievance adjustment.
If you do not want to pay that portion of dues or fees used to support activities not related to collective bargaining, contract administration, or grievance adjustment, you are entitled to an appropriate reduction in your payment. If you believe that you have been required to pay dues or fees used in part to support activities not related to collective bargaining, contract administration, or grievance adjustment, you may be entitled to a refund and to an appropriate reduction in future payments.
For further information concerning your rights you may wish to contact the National Labor Relations Board (NLRB) either at one of its Regional Offices or at the following address . . . [address printed].
Order § 2(a)(1).
The second and third contract clauses required by the Order authorize the Secretary of Labor to impose substantial penalties on those employer-contractors who do not post the above notice, including canceling their current government contracts and debarring them from obtaining future government contracts. See Order § 2(a)(2) (3). The fourth required clause applies the notice requirement to subcontractors and "those who sell goods to" prime contractors (i.e., vendors), and requires prime contractors to "take such action . . . as may be directed by the Secretary" towards subcontractors and vendors, including imposing sanctions for noncompliance with the Order. Order § 2(a)(4).
Although the Order authorizes the Secretary to exempt from the notice requirement those facilities of covered employers which "are in all respects separate and distinct from activities related to the performance of the contract," it states that "in the absence of an exemption all facilities shall be covered." Order § 3(c). The Secretary has not provided for any exemptions, and thus all the facilities of covered employers, even those without employees working under a federal contract covered by the Order, are required to post the notice.
As the source of its authority, the Order cites the Federal Property and Administrative Services Act, 40 U.S.C. § 471 et seq. ("Procurement Act"), which provides the President with the authority to issue executive orders to promote "economy and efficiency" in government procurement. The Order states its relationship to this goal as follows: "When workers are better informed of their rights, including their rights under the Federal labor laws, their productivity is enhanced. The availability of such a workforce from which the United States may draw facilitates the efficient and economical completion of its procurement contracts." Order § 1(a).
Challenging the Order are a non-profit corporation and three unions. The bylaws of the corporate plaintiff, UAW-Labor and Employment Training Corporation, states that its purpose is to "provide job training and jobs for eligible economically disadvantaged persons; . . . to obtain participation from private industry employers; and . . . to meet the specific needs of such employers." The Corporation claims it is an "employer" within the meaning of the NLRA and that it is party to several contracts with the federal government. The Corporation is also party to a collective bargaining agreement with the Office and Professional Employees International Union Local 537 ("OPEIU Local 537"), one of the union plaintiffs. This collective bargaining agreement is subject to a "union-security agreement," an agreement between an employer and a union providing that employees represented by the union are required to pay certain dues to the union as a condition of retaining employment.
Plaintiff International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America ("UAW") is an international labor organization that claims a membership of over 800,000 employees. UAW represents employees of federal government contractors, such as General Motors Corporation and Ford Motor Corporation, with which it has collective bargaining agreements that are subject to union-security agreements. Plaintiff OPEIU is an international labor organization that claims a membership of over 140,000 employees worldwide. Like UAW, it represents employees of federal government contractors with whom it has union-security agreements. Plaintiff OPEIU Local 537 is an OPEIU affiliate that represents the employees of the Corporation, with whom it has an union-security agreement.
II. ANALYSIS
A. Defendant's Motion to Dismiss
Defendant moves to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) on the basis that plaintiffs lack standing to prosecute this action. Specifically, defendant argues that plaintiffs' averments in their complaint are insufficient to show that plaintiffs have been injured. Defendant's arguments are without merit.
Standing doctrine arises from the requirement in Article III of the Constitution that a "case or controversy" exist in order for federal courts to exercise jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). To establish standing under Article III, a plaintiff must show: 1) injury in fact — a concrete and imminent violation of a legally protected interest; 2) causation — a causal connection between the challenged action and the injury in fact; and 3) redressability — the likelihood that a decision in the plaintiff's favor will redress the injury in fact. See id. at 560. These requirements, as with "any other matter upon which the plaintiff has the burden of proof," must be supported with "the manner and degree of evidence required" at the particular stage of litigation. Id. at 561. On a motion to dismiss, "general factual allegations of injury resulting from the defendant's conduct may suffice [to establish standing], for . . . we `presum[e] that general allegations embrace those specific facts that are necessary to support the claim'." Id. (quoting Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 889 (1990)). As with any motion to dismiss, "[f]or purposes of ruling on a motion to dismiss for want of standing, both the trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party." Warth v. Seldin, 422 U.S. 490, 501 (1975); see also Chavous v. District of Columbia, 154 F. Supp.2d 40, 44 (D.D.C. 2001). The plaintiff need only allege facts demonstrating "a realistic danger of . . . sustaining a direct injury." Bristol-Myers Squibb Co. v. Shalala, 91 F.3d 1493, 1497 (D.C. Cir. 1996) (quoting Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979)). Thus, as long as a plaintiff can allege facts, that, if true, would demonstrate a legally cognizable injury, then the court will not dismiss for want of standing.
The union plaintiffs allege that they have been injured by the Executive Order in two respects. First, they argue that the notice required by the Order is likely to be viewed by employees as an attempt by employers to discourage participation in unions. Second, the unions contend that the Order removes their opportunity to bargain with employers over communications regarding employee rights and thus to modify the content of such communications or obtain other concessions.
Because the court concludes that the averments of the union plaintiffs are sufficient to withstand defendant's motion to dismiss, the court need not address the standing of the UAW-Labor and Employment Training Corporation.
1. Discouragement of Union Activity
Because employees are economically dependent on their employers, the unions argue, they are likely to interpret an official notice informing them that they do not have to join or pay certain fees to a union "not as a neutral statement regarding the NLRA's meaning and effect but as a pointed employer admonition to resign their union membership and to withdraw financial support from their union." Pl.'s Reply Memo. at 16. See also Supplemental Declaration of David Curson, UAW International President at 3. The unions point out that the notice required by the Order only notifies employees of their NLRA rights against unions, and not of their NLRA rights against employers, including their right to participate in union activity without employer interference. The unions contend that employees will perceive this as an indication of employers' anti-union bias and thus feel pressured to disassociate themselves from unions.
Although the notice does not expressly direct employees to resign from or cease paying dues to their union, or make any other overtly anti-union statement, the Supreme Court has recognized that employees are prone to read such meanings into employer statements regarding unions. In NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), which held that an employer's statements to its employees regarding unionization constituted an unfair labor practice under the NLRA, the Court noted that "[a]ny assessment of . . . employer expression [to employees] . . . must take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear." Id. at 617.
Defendant argues that this theory is flawed for two reasons. First, defendant observes that the unions have not identified individual employees who have resigned from a union or curtailed their payments of union fees because of the notice, and thus have failed to show actual injury. Second, defendant contends that even if the unions could show that employees resigned from unions due to the notice, they would not have standing because they are not and will never be "subject to" the Executive Order. In other words, defendant argues that the resignations would be due not to its actions but to those of an independent third party, the employer, because it is the employer who is regulated by the Order and who posts the notice. Therefore, defendant argues, the unions also have failed to show the causation and redressability elements of standing.
Defendant's arguments cannot be sustained. With respect to the significance defendant draws from the absence of evidence that employees have resigned from a union or curtailed their payments of union fees because of the notice, defendant misconstrues the showing necessary to establish standing at the pleading stage. To survive a motion to dismiss, the unions need only allege facts which if true would show injury, and general allegations are assumed to "embrace those specific facts that are necessary to support the claim." Lujan, 504 U.S. at 561. Not until the summary judgment stage — if the issue is raised — do plaintiffs have to "`set forth' by affidavit or other evidence `specific facts'." Id. at 561; see Fed. Rule Civ. Proc. 56(e). The unions have satisfied the applicable burden by alleging that employees are likely to view the Order as an anti-union message from their employer, and therefore are likely to resign from or reduce their fees to their unions in the near future. The unions do not have to include allegations that specific individuals have already resigned at this stage.
We note that only three employers who have union-security agreements with the plaintiff unions are known to have posted the notices, although plaintiffs contend that others intend to post the notices shortly. See Carson Dec. Thus, the Order's effect, whatever it may or may not be, has only begun to be felt by members of the plaintiffs' unions.
The unions have submitted an affidavit from David Curson, International President of UAW, stating that the notice required by the Executive Order is likely to be understood by employees as an anti-union statement by employers. See id. at 3.
As for defendant's argument that the resignation of union members would be due not to its actions but to those of an independent third party, this argument also results from an erroneous interpretation of governing law. Defendant's argument in this regard is based upon a distinction drawn by the Supreme Court in Lujan v. Defenders of Wildlife between parties who are "objects" of the action at issue, and parties whose injury "arises from the government's regulation . . . of someone else," a third party. Id. at 561. For parties who are objects of the action, there is "ordinarily little question" of injury, but for parties who are not, injury is ordinarily "substantially more difficult to establish" because they must show that the third party's "choices have been or will be made in such manner as to produce causation and permit redressability of injury." Id. at 561-62. In Lujan, the Court held that the trial court was correct when it granted summary judgment to the defendant on the grounds that the plaintiff, a wildlife preservation organization, did not have standing on behalf of its members to challenge a Department of the Interior ("DOI") regulation. The challenged regulation required other federal agencies to consult with DOI to ensure that federally funded projects located in the United States complied with the Endangered Species Act, but did not require such consultation for federally funded projects located overseas. Because the regulation in Lujan regulated the activities of federal agencies, but was challenged by private citizens (who argued that the rule would deprive them of an opportunity to observe endangered species overseas), the distinction between parties who were objects of the action and those who were not was clear.
The distinction is not nearly as clear in this case. While it is the employer who must take the action mandated by the Executive Order — posting the notice — the content of the notice deals exclusively with the relations between unions and their members. As defendant acknowledges in its briefs, the Order is intended to "inhibit the unions from engaging in the practice of using union fees" improperly and to "protect employees from impermissible uses [by unions] of fees." See Def.'s Mot. at 3-4, 31-32. Thus, the Order targets union behavior and seeks to modify it. To argue that the union is nonetheless not an "object" of the rule because it is not technically "subject" to it — because it is not the one posting the notices — is to contort the principle underlying the distinction made in Lujan.
In Bennett v. Spear, 520 U.S. 154 (1997), the Supreme Court indicated that Lujan does not impose so rigid a construction. In Bennett, the plaintiff ranch owners challenged a Fish and Wildlife Service ("FWS") biological opinion rendered pursuant to the Endangered Species Act on the basis that it would cause the Bureau of Reclamation ("Bureau"), a third party, to reduce their supply of water for irrigation. Citing Lujan, FWS argued that the plaintiffs lacked standing because any reduction in their water supply would be the result of action taken by the Bureau, not FWS. The Court rejected FWS's argument, finding that it had "wrongly equate[d] injury `fairly traceable' to the defendant with injury as to which the defendants actions are the very last step in the chain of causation." Id. at 170. The Court noted that while Lujan held that injuries resulting from "`the independent action of some third party not before the court'" were not sufficient for standing, "that does not exclude injury produced by determinative or coercive effect upon the action of someone else." Id. (quoting Lujan, 504 U.S. at 560-61) (emphasis in original). The Court found that the biological opinion had such a "coercive effect" on the Bureau even though the Bureau was technically free to disregard it, because the Bureau ran a "substantial risk" of incurring substantial penalties if it did so without an adequate explanation. See id. at 169-71. In this case, employers subject to the Executive Order are not free to disregard it, even in a "technical" sense, and the sanctions if they do are not a "risk" but a certainty. Thus the employers in this case are not "independent" third parties in the Lujan sense. 2. Removal of Bargaining Opportunity
See also Motor Equipment Manuf Ass'n v. Nichols, 142 F.3d 449 (D.C. Cir. 1998) (holding that sellers of car parts had standing to challenge EPA rule regulating automobile manufacturers because nearly all manufacturers had decided to comply with the rule, even though they were not required to and would not face sanctions if they did not, and compliance could reduce demand for sellers' parts).
The unions argue that the Executive Order also injures them by removing their opportunity to bargain with employers over employers' communications to employees regarding employee rights. If the Order did not mandate that the notice be posted, the unions contend, then they could have offered concessions to prevent employers from communicating such a message to employees or modify the message communicated so that it included notification of employees' rights against employers as well as their rights against unions.
Defendant counters that the alleged loss opportunity does not constitute an injury because unions would not otherwise have a right to bargain over such a notice. An employer's posting of such a notice, defendant argues, does not "significantly affect" a "term or condition of employment" such that collective bargaining is required under Section 8 of the NLRA. See Seattle First Nat'l Bank v. NLRB, 444 F.2d 30, 33 (9th Cir. 1971). However, nowhere does Section 8 state that a term or condition of employment must be "significantly affected" to activate the NLRA's requirement of collective bargaining, see 29 U.S.C.A. § 158(a)(1), (5), nor does any decision of the D.C. Circuit set forth such a test. Nor does defendant cite any case applying Section 8 to a notice like the one in this case. In fact, in the only case applying Section 8 cited by defendant for its facts, NLRB v. Proof Co., 242 F.2d 560 (7th Cir. 1957), the Seventh Circuit held that use of company bulletin boards for union postings is a subject of mandatory collective bargaining under the NLRA. See id. at 562.
Defendant's argument regarding the scope of Section 8 is largely beside the point, however, because the unions maintain that even if bargaining was not required by the NLRA, they would have had the opportunity to bargain with employers over the notice. The Order therefore deprives them of an opportunity they would otherwise have had. This Circuit has recognized that a lost opportunity can supply the injury in fact necessary for standing. In Competitive Enterprise Institute v. National Highway Traffic Safety Administration, 901 F.2d 107 (D.C. Cir. 1990), the court held that the plaintiffs, two consumer associations, had standing to challenge fuel economy guidelines issued by the National Highway Safety Administration because the guidelines would reduce the incentive for automobile manufacturers to produce large passenger cars, thus reducing consumers' opportunities to buy such cars. The court found this lost opportunity to be "sufficiently personal and concrete to satisfy Article III requirements." Id. at 113.
Defendant counters that no opportunity would have existed in the first place in this case because, as the unions acknowledge, there was no general practice of employers posting a similar notice of their own accord prior to the issuance of the Order. At the motion to dismiss stage, however, the unions do not have to identify specific employers who have conducted such bargaining in the past or would have done so in the future in the absence of the Order; it is sufficient to allege that the Order removes employers' incentive to so bargain. In Center for Auto Safety v. National Highway Traffic Safety Administration, 793 F.2d 1322 (D.C. Cir. 1986), another case involving a challenge by consumers to fuel-efficiency regulations, the D.C. Circuit held that the plaintiffs had standing even though they did not allege that the availability of fuel-efficient vehicles had already changed due to the new regulations, but only that the regulations would reduce the availability of such vehicles in the future. See id., 793 F.2d at 1332.
Employers have, however, engaged in bargaining over their communications to employees regarding unions, and have agreed not to exercise their NLRA right to advocate against unions in exchange for union concessions. See Hotel Employees Local 2 v. Marriott Corp., 961 F.2d 1464, 1470 (9th Cir. 1992). The value to unions of striking such a bargain has been diminished due to the Order, as employers can still accomplish through the required notice what they bargain away. Thus, the unions may have lost a bargaining opportunity even as to employers who would not otherwise post such a notice.
Defendant also argues that because unions themselves have an existing obligation under the NLRA to inform employees of their Beck and General Motors rights, the unions cannot claim to have suffered harm from a notice that provides employees with the same information. It is not the information contained in the notice per se that the unions claim causes their injury, however, but the source of that information. Information communicated on a notice posted by employers, the unions contend, has a different impact on employees than information coming from the unions. The former is likely to be perceived as indicating an employer's anti-union bias, while the latter is not. Moreover, when the information is conveyed by the unions pursuant to their NLRA obligations, it is likely to be supplemented by information on the positive rights of employees regarding unions, rights which the notice does not mention. Thus, the unions' NLRA obligations do not prevent them from being harmed by the Order.
B. NLRA Preemption
Plaintiffs and defendant have both moved for summary judgement on the question of whether the Executive Order is preempted under the NLRA. Plaintiffs contend that the Executive Order is preempted by the NLRA because it regulates in a field in which the NLRA as construed by the National Labor Relations Board ("NLRB") precludes Procurement Act regulation, including presidential executive orders. Defendant argues the opposite position.
The court applies the well recognizes standards governing motions for summary judgment. Summary judgement should not be granted unless there is no genuine issue as to any material fact and the moving party is entitled to judgement as a matter of law. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, 477 U.S. 242, 248-49 (1986). Here, because the issue of preemption is a pure question of law, it is ripe for summary judgement. Swan v. Clinton, 100 F.3d 973, 976 (D.C. Cir. 1996). The court observes that defendant does not raise the issue of plaintiffs' standing in its motion for summary judgment.
The foundation for plaintiffs' argument is the D.C. Circuit's decision in Chamber of Commerce v. Reich, 74 F.3d 1322 (D.C. Cir. 1996). In Chamber of Commerce, the court invalidated as preempted by the NLRA Executive Order 12,954, an Executive Order issued under the Procurement Act that debarred from federal government contracts employers who hired permanent replacement workers during a strike. The court held that the order was in "unacceptable conflict" with the NLRA because the NLRA does not prohibit hiring permanent striker replacements. Id. at 1333. The government argued that the order did not conflict with the NLRA because the NLRA does not require employers to hire permanent striker replacements; i.e., beeause the order did not prohibit conduct the NLRA requires. See id. at 1330. The court rejected the government's argument, finding its definition of conflict too narrow to comport with the broad-sweeping NLRA preemption rule laid down by the Supreme Court in San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959). See Chamber of Commerce, 74 F.3d at 1337-39.
Defendant argues that the Chamber of Commerce ruling was based not on the Garmon preemption rule but on the preemption rule laid down by the Supreme Court in Lodge 76, Int'l Ass'n of Machinists Aerospace Workers v. Wisconsin Employment Relations Comm'n, 427 U.S. 132 (1976). " Machinists preemption" prohibits regulation in an area that Congress intended to be unregulated and left to the free play of the market. See Chamber of Commerce, 74 F.3d at 1334. The Chamber of Commerce court very clearly stated, however, that the Executive Order under consideration ran "afoul not only of Machinists but . . . Garmon preemption doctrine." Id. at 1338.
The Garmon rule holds that the NLRA preempts laws regulating any activity that is "arguably" protected or prohibited under the NLRA, not merely activities expressly protected or prohibited by the statute. See Garmon, 359 U.S. at 244. This rule bars state and federal regulators both from setting their own standards for conduct regulated by the NLRA and from providing their own remedies for such conduct. See Wisconsin Dep't of Indus. v. Gould, 475 U.S. 282, 286 (1986); Chamber of Commerce, 74 F.3d at 1334. The Garmon rule is thus designed to avert "conflict in the broadest sense" with the NLRA's "complex and interrelated . . . scheme of law, remedy, and administration." Garmon, 359 U.S. at 243; Chamber of Commerce, 74 F.3d at 1333 (quoting Garmon).
Plaintiffs argue that the Executive Order in this case, like that in Chamber of Commerce, conflicts with the NLRA in the broad Garmon sense because it sets a different standard of conduct for employers than that set by the NLRA. Plaintiffs base this argument on Rochester Manufacturing Co. v. NLRB, 323 N.L.R.B. 260 (1997), in which the NLRB, the administrative body charged with interpreting and adjudicating NLRA rights, held that the NLRA does not require employers to post notices informing workers of their rights under Beck and General Motors. Plaintiffs thus argue that just as the Executive Order in Chamber of Commerce was preempted because it prohibited conduct the NLRA does not prohibit, the Order in this case is preempted because it requires conduct the NLRA does not require.
Defendant attacks plaintiffs' argument on two grounds. First, it contends that the Executive Order is not preempted by the NLR.A because the NLRA does not prohibit employers from posting notices of the relevant employee rights. Rochester Manufacturing, defendant points out, held merely that employers cannot be required to post such notices under the NLRA, not that they could not do so. In fact, defendant argues, employers have an affirmative right to post such notices under Section 8 of the NLRA, the provision of the statute protecting employer expression. See 29 U.S.C. § 158(c). Defendant reasons that if the Order does not require conduct that the NLRA prohibits, and if employers would be free to post notices even in its absence, it cannot conflict with the NLRA.
While defendant's statements of the law under Rochester Manufacturing and Section 8 of the NLRA are correct, its reasoning is not. The question is not whether the NLRA prohibits employers from posting Beck/General Motors notices — defendant is correct that it does not — but whether the NLRA prohibits requiring employers to post the notices. Rochester Manufacturing makes clear that it does. Therefore, an employer who refrains from posting the notice complies with the NLRA, but violates the Executive Order — just as an employer in Chamber of Commerce who hired permanent replacement workers complied with the NLRA, but violated the Clinton order. This is a clear conflict under the Garmon rule. Defendant's argument is simply the corollary to the argument rejected by the D.C. Circuit in Chamber of Commerce, and fails because it depends on the same narrow notion of conflict.
The only other court to consider whether a regulation that requires employers to do something that the NLRA does not require them to do is preempted by the NLRA reached the same conclusion. In Aeroground, Inc. v. City and County of San Francisco, No. C-01-1628, slip op. (N.D. Cal. July 9, 2001), the Northern District of California held that a regulation requiring employers to recognize a union based on union authorization cards signed by a majority of employees was preempted under the NLRA, because the NLRA allows — but does not require — employers to refrain from such recognition pending an election conducted by the NLRB. The court found that the regulation "set forth standards inconsistent with the substantive requirements of the NLRA" by imposing a requirement that "conflicts with . . . options for employers that are protected by the NLRA." Id. at 9.
Any remaining doubt as to the outcome of applying Chamber of Commerce to the facts of this case is erased by that court's own statement that it would rule the same way if asked to pass on an executive order exactly like the one at issue here. Referring to Executive Order 12,800, an order issued by former President Bush and repealed by then President Clinton prior to the court's ruling, the court stated, "We also are dubious that [Bush's order], which required government contractors to post notices informing their employees that they could not be required to join or remain a member of union, was legal. It may well have run afoul of Garmon preemption which reserves to NLRB jurisdiction arguably protected or arguably prohibited conduct." Id., 74 F.3d at 1337 n. 10.
Next, defendant contends that even if the Executive Order would be preempted under Garmon doctrine, NLRA preemption does not apply to this case because the Order "implicates" the unions' duty of fair representation. The duty of fair representation requires unions that are parties to union security agreements to provide fair representation to all employees when conducting collective bargaining with employers, regardless of whether a particular employee is a union member. See Beck, 486 U.S. at 742-44. As part of this duty, unions must inform employees of their right not to join or pay certain fees to a union. Defendant argues that because the Order advises employees of these same rights, it implicates the unions' duty of fair representation. Since the NLRB does not have exclusive primary jurisdiction over duty of fair representation claims, see id.; Vaca v. Sipes, 386 U.S. 171 (1967), defendant concludes that the Order is not governed by Garmon or Rochester Manufacturing and therefore is not preempted by the NLRA.
There are two major flaws in this reasoning. First, the fact that actions to enforce the duty of fair representation do not have to be adjudicated by the NLRB before being heard in state court does not mean that attempts to regulate this duty are not preempted by the NLRA. In fact, numerous cases have held that, although they may be heard in state court in the first instance, state law duty of fair representation claims are preempted. See, e.g., BIW Deceived v. Local 56, 132 F.3d 824, 830 (1st Cir. 1997); In re Glass Workers Local No. 173, 983 F.2d 725, 729 (6th Cir. 1993). In addition, insofar as this case deals with employers' obligations under the NLRA, the section of the NLRA setting forth employers' obligations (Section 8) is separate from the section setting forth unions' duty of fair representation (Section 9), and therefore the jurisdictional rules applying to the latter may not apply to the former. In Nielsen v. International Association of Machinists, 94 F.3d 1107 (7th Cir. 1996), the only case on point, the Seventh Circuit held that the NLRB does have exclusive primary jurisdiction over the question of whether the NLRA requires employers to notify employees of their Beck and General Motors rights. Therefore, the NLRB's decision in Rochester Manufacturing governs.
Second and more importantly, this case is not a duty of fair representation claim. Such claims are brought by an employee against a union to force the union to comply with its duty of fair treatment. As the Supreme Court has noted, this duty serves "as a bulwark to prevent arbitrary union conduct against individuals," and it is because of this public policy goal that such claims are not left solely to the NLRB to prosecute. Vaca, 386 U.S. at 181-83 (emphases added). This case involves a challenge by unions and employers to a government regulation; the fact that the regulation requires employers to post a notice of certain employee rights, of which unions must also notify employees pursuant to the duty of fair representation, does not confer that duty onto employers or transform this case into a duty of representation claim. The cases cited by defendant, all claims by individual employees against unions, are therefore inapposite.
In sum, the Executive Order would regulate in a core labor-management area regulated by the NLRA by imposing a duty on employers that the NLRA, as construed by the NLRB, does not impose. Therefore, the Order is in conflict with the NLRA and is preempted by it under Garmon and Chamber of Commerce.
There is no need to address plaintiffs' additional claim that the Executive Order is invalid under the Procurement Act, because even if the court were to find for defendant on that claim, it would still hold the Order invalid under the NLRA. See Chamber of Commerce, 74 F.3d at 72 (rejecting the argument that the Procurement Act "trumps" the NLRA such that a finding that an Order is valid under the former obviates the need to assess its validity under the latter).