The opinion of the court was delivered by: NEAL McCURN, Senior District Judge
MEMORANDUM-DECISION AND ORDER
Plaintiffs are a group of five health care organizations, whose
members or affiliates provide a broad range of health care
services, such as operating "220 acute care hospitals," "nearly
300 residential health care facilities," and providing services
to individuals "with mental retardation and other developmental
disabilities[.]" Amended Complaint ("Co.") at 4, ¶¶ 6 and 8; and
at 5 ¶ 9. Plaintiffs are suing the Governor, the Attorney General and the
Commissioner of Labor for the State of New York, seeking to
overturn section 211-a of New York's Labor Law (hereinafter
collectively referred to as "the State").
In a nutshell, that statute prohibits the use of "state funds,"
including Medicaid (which provides a substantial portion of the
funding for plaintiffs), from "encourag[ing] or discourag[ing]
union organization[.]" N.Y. LAB. LAW § 211-a (McKinney Supp.
2004). Supporters of the law, such as the AFL-CIO, depict it as a
"`union neutrality law[,]'" 66 BNA Daily Labor Report A-5, 2003,
whereas plaintiffs describe it as an "`Employer Gag Law.'" Co. at
11, ¶ 28.
Given the chasm between labor and management with respect to
the impact of § 211-a on labor relations in the workplace, it is
not surprising that several groups moved to appear as amicus
curiae in this action. The court assumes familiarity with its
May 27, 2004, decision granting amicus status to the Business
Council; the Coalition and the Brennan Center.
In this declaratory judgment action, plaintiffs allege that the
National Labor Relations Act ("NLRA") and the Labor Management
Reporting and Disclosure Act ("LMRDA") preempt section 211-a.
Plaintiffs are also mounting several constitutional challenges to
section 211-a, claiming that it violates their rights under the
First and Fourteenth Amendments.
In its original form, section 211-a of the New York State Labor
Law read as follows:
Notwithstanding any other provision of law, no monies
appropriated by the state for any purpose shall be
used or made available to employers to train
managers, supervisors or other administrative
personnel regarding methods to discourage union organization.
N.Y. LAB. LAW § 211-a (McKinney 2002) (emphasis added). Effective
December 29, 2002, the scope of that statute was greatly
expanded. Under the amended version of section 211-a,
organizations that receive state funding, including Medicaid, are
barred from using such monies to either encourage or
discourage union organizing. Prohibited activities include the
hiring of attorneys or consultants or the training of managers or
hiring employees "to encourage or discourage union organization,
or to encourage or discourage an employee from participating in a
union organizing drive[.]" Id. § 211-a(2) (McKinney Supp.
2004). In addition, § 211-a contains detailed reporting
requirements "sufficient to show that state funds were not used
to pay for . . . activities [prohibited thereunder.]" Id. §
211-a(3). The statute goes on to grant the State Attorney General
enforcement powers in the form of seeking the "return of
unlawfully expended funds?" and the imposition of civil
penalties. See id. at § 211-a(4). Finally, in its amended
form § 211-a directs the State Labor Commissioner to, inter
alia, promulgate regulations pertaining to the financial
recordkeeping requirements thereunder. See id. at § 211-a(5).
As noted at the outset, the parties have widely divergent views
of section 211-a. The plaintiff health care associations which
allegedly are "either currently facing union organizing campaigns
or reasonably expect to be subjected to [same] in the near
future[,]" refer to it as the "`Employer Gag Law.'" Co. at 10, ¶
23; and at 11, ¶ 28. In their view section 211-a is nothing more
than an "ill-conceived statute," which the State has enacted
"[i]n its fervor to defeat employer opposition to union
organization[.]" Pl. Memo. at 1.
Conversely the State refers to section 211-a as a "labor
neutrality bill[,]" which, according to Governor Pataki, "will protect taxpayers by
ensuring that State tax dollars are used for their intended
purpose, instead of being diverted to promote or discourage union
organizing activities[.]" Co., exh. B thereto at 1. Despite being
touted as labor "neutral," unions clearly view section 211-a as
sending a pro-union message. In the Governor's press release
announcing the amendment of section 211-a, the President of New
York State's AFL-CIO proclaimed that that statute "`ensures that
taxpayer dollars will not be used to interfere with a worker's
constitutional right to join a union.'" Id. Another supporter
of section 211-a claims that that statute will "`provide much
needed protection for workers seeking to organize unions.'" Id.
There is one minor procedural issue which needs to be
clarified. In its Notice of Motion, arguing that plaintiffs have
failed to state a claim upon which relief may be granted, the
State is moving for dismissal pursuant to Fed.R.Civ.P.
12(b)(6). Alternatively, in their opposition memorandum, in
accordance with Fed.R.Civ.P. 12(c), the State is seeking to
have its Rule 12(b)(6) motion converted to a motion for summary
judgment. As alluded to during oral argument, the court views the
preemption issues which these motions present as "predominately
legal," and hence it sees no need to convert the State's motion
to one for summary judgment. See Pac. Gas & Elec. v. St.
Energy Resources Conserv., 461 U.S. 190, 201, 103 S.Ct. 1713,
1720 (1983). Consistent with the foregoing, in deciding
plaintiffs' cross-motion for summary judgment the court will take
into account only those documents which would be otherwise
permissible in connection with a Rule 12(b)(6) motion. II. Scope of Record
Clearly the court's decision to treat the State's motion as a
Rule 12(b)(6) motion rather than a Rule 56 motion, limits the
scope of the record herein. Included in the State's supporting
papers is the affidavit of an attorney representing UNITE, a
labor union which "organizes and represents employees employed by
agencies which receive funding from" New York State. Affidavit of
Brent Garren (Dec. 17, 2003), at 1-2, ¶¶ 1 and 2. Currently UNITE
is involved in litigation before the National Labor Relations
Board ("NLRB"). In that matter the employer, Independent
Residences, Inc. ("IRI"), alleges "that the [union] election
should be overturned because New York State Labor Law Sec. 211-A
interfered with its ability to campaign against UNITE." Id. at
2, ¶ 5. Attached to the Garren affidavit are a number of
documents pertaining to that NLRB matter.
During oral argument the court directed the State to provide a
copy of the exceptions filed to the Administrative Law Judge's
decision in IRI. See Transcript (Sept. 13, 2004) ("Tr.") at
46. It also directed the State to provide the court with a copy
of the transcript of the argument. Id. at 76. The State
complied, but in its post-argument submissions it included 20
additional documents which the court did not request. Among
those documents are newspaper articles, excerpts from several
books and articles as well as the State Comptroller's 2003-04
Budget Analysis. Plaintiffs and one of the amici, the Chamber
of Commerce of the United States ("the Chamber"), objected to
these additional documents being made a part of the record on
these motions. Thereafter, the court informed the parties that
insofar as those objections were concerned, it would "advise
the[m] . . . as to its determination in due course." Dkt. # 61.
Having had the opportunity to carefully consider the State's
post-hearing submissions and the objections to same as to whether such should
be made a part of the record herein, the court sustains the
objections to same.
The court will address NLRA preemption first. If the court
finds that the NLRA preempts section 211-a, then there is no need
to address the issue of LMRDA preemption, see Tr. at 62, and
there would be no need to address the constitutionality of that
statute. See Piazza's Seafood World, LLC v. Odom, No. Civ.A.
04-690, 2004 WL 1375306, at *4 (E.D.L.A. June 17, 2004) ("In
light of the Court's finding that federal law preempts [a
Louisiana State statute,] the constitutional challenges are now
moot and need not be decided."); see also Greater NY
Metropolitan Food Council v. Giuliani, 195 F.3d 100, 110 (2d
Preemption has its origins in the Supremacy Clause of the
United States Constitution, which provides in pertinent part that
"the Laws of the United States which shall be made in Pursuance
thereof . . . shall be the supreme Law of the Land[.]" U.S.
Const. Art. VI, cl. 2. "Although not a source of a federal right
by itself, th[is] . . . Clause secure[s] federal rights by
according them priority whenever they come in conflict with state
law." Rondout Electric, Inc. v. NYS Dept. of Labor,
335 F.3d 162, 166 (2d Cir. 2003), cert. denied, 540 U.S. 1105 (2004)
(internal quotation marks and citations omitted).
Preemption can be either explicit or implicit. "State law is
preempted explicitly where Congress states an intent to occupy a
field and to exclude state regulation." Id. Implicit preemption
results "where the federal interest in the subject matter
regulated is so pervasive that no room remains for state action, indicating an implicit intent to occupy the field, or where the
state regulation at issue conflicts with federal law or stands as
an obstacle to the accomplishment of its objectives." Id.
(citing, inter alia, Pac. Gas & Elec. Co. v. State Energy Res.
Conservation & Dev. Comm'n, 461 U.S. 190, 203-04 (1983)).
"Preemption, whether express or implied, may partially, as well
as totally, displace state law." Drake v. Laboratory Corporation
of America Holdings, 290 F.Supp.2d 352, 364 (E.D.N.Y. 2003).
The NLRA, 29 U.S.C. §§ 151-169 (2002), which governs
labor-management relations in the private sector, contains no
express pre-emption provision. Bldg. & Const. Trades Council of
the Metro. Dist. v. Associated Builders & Contractors of
Mass./R.I., Inc., 507 U.S. 218, 224, 113 S.Ct. 1190, 1194
(1983)) ("Boston Harbor"). Nonetheless in 1986 the Supreme
Court declared, "It is by now a commonplace that in passing the
NLRA Congress largely displaced state regulation of industrial
relations." Wisconsin Dept. of Industry v. Gould Inc.,
475 U.S. 282, 286, 106 S.Ct. 1057 (1986)). This is consistent with the
presumption under the Supremacy Clause "in favor of preemption in
fields that are inherently federal in character and that the
states have not traditionally occupied." Drake, 290 F.Supp.2d at 363-64 (citing Buckman Co.
v. Plts' Legal Comm., 513 U.S. 341, 347 (2001)). Two distinct
lines of preemption jurisprudence have emerged under the NLRA. At
this juncture only a brief outline of the two strands of NLRA
preemption is necessary.
The first line of NLRA preemption, Garmon preemption,
"developed from a line of cases that focused on the primary
jurisdiction of the NLRB." New England Health Care, Employees
Union, District 1199, SEIA/AFL-CIO v. Rowland,
221 F.Supp.2d 297, 324 (D.Conn. 2002) (citation omitted). It "corresponds to
the `actual conflict category of general preemption theory[.]"
Aeroground, Inc. v. City and County of San Francisco,
170 F.Supp.2d 950, 955 (N.D.Cal. 2001) (citation omitted). "Sections
7*fn2 and 8*fn3 of the [NRLA] regulate `concerted activities' and `unfair labor practices,' respectively, seeking
to protect the former and stamp out the latter." Building Trades
Employers' Ass'n v. McGowan, 311 F.3d 501, 508 (2d Cir. 2002)
(citing 29 U.S.C. §§ 157, 158 (codifying § 7 and § 8 of the
NLRA)) (footnotes added). "`Garmon pre-emption,' . . . forbids
state and local regulation of activities that are `protected by §
7 of the [NLRA], or constitute an unfair labor practice under §
8." Boston Harbor, 507 U.S. at 224, 113 S.Ct. at 1194 (internal
quotation marks and citations omitted). Garmon preemption is
relatively broad in that it "prohibits regulation even of
activities that the NLRA only arguably protects or prohibits."
Id. (citation omitted). The purpose of Garmon pre-emption is
"to prevent conflict between, on the one hand, ...