Section 93 of the New Jersey Casino Control Act requires annual
registration of unions representing persons employed in casinos or
casino hotels, and provides that a union may be prohibited from
receiving dues from such employees and from administering any
pension or welfare funds if any union officer is disqualified under
the criteria contained in § 86 for the licensing of various
entities and persons. Those criteria include convictions for
enumerated offenses, or any other offenses indicating that
licensure would be inimical to the Act's policy, and association
with other criminal offenders. Appellees, a union whose membership
includes persons employed in casino hotels in Atlantic City and the
union's president, instituted an action against certain state
agencies and officials in Federal District Court, seeking
declaratory and injunctive relief after state administrative
proceedings had been begun to determine whether certain of the
union's officers were disqualified under the criteria of § 86. The
court denied appellees' motion for a preliminary injunction against
the state proceedings, concluding that appellees were unlikely to
succeed on the merits of their claims, which included a claim that
§§ 86 and 93 were preempted by the National Labor Relations Act
(NLRA). The state administrative proceedings resulted in a finding
that certain of the union's officials were disqualified under § 86,
and in an order that, if the officials were not removed from
office, the union would be barred from collecting dues from any of
its members who were casino hotel employees licensed or registered
under the New Jersey Act. The state agency also concluded that it
would be unnecessary to invoke the additional § 93 sanction of
prohibiting the disqualified officials from administering pension
and welfare funds. Thereafter, the Court of Appeals held,
inter
Page 468 U. S. 492
alia, that the District Court erred in refusing to
grant the preliminary injunction, and that § 93, insofar as it
authorizes disqualification of elected union officials, is
preempted by § 7 of the NLRA.
Held:
1. The so-called "local interests" exception to the preemption
doctrine does not apply if the state law regulates conduct that is
actually protected by federal law. Where, as here, the issue is one
of an asserted substantive conflict with a federal enactment, then
the relative importance to the State of its law is not material,
since the federal law must prevail by direct operation of the
Supremacy Clause of the Federal Constitution. Pp.
468 U. S.
500-503.
2. Section 93 of the New Jersey Act, to the extent that it
regulates the qualifications of casino industry union officials,
does not actually conflict with § 7 of the NLRA -- which neither
contains explicit preemptive language nor otherwise indicates a
congressional intent to usurp the entire field of labor-management
relations -- and thus is not preempted by § 7. Although the 1945
decision in
Hill v. Florida, 325 U.
S. 538, interpreted § 7's express guarantee of the right
of employees to choose their bargaining representative as also
conferring an unfettered right on employees to choose the officials
of their bargaining representative, Congress has subsequently
disclaimed any intent to preempt all state regulation which touches
upon the specific right of employees to decide which individuals
will serve as officials of their bargaining representatives.
Specifically, § 504(a) of the Labor-Management Reporting and
Disclosure Act of 1959 generally prohibits persons convicted of
specified crimes from serving as union officers, and § 603(a) of
that Act is an express disclaimer of preemption of state laws
regulating union officials' responsibilities except where such
preemption is expressly provided. Moreover, in approving a compact
between New York and New Jersey, Congress implicitly approved New
York's restrictions (similar to those involved here) on unions
representing waterfront employees, which restrictions were upheld
against a preemption challenge based on § 7 of the NLRA in
De
Veau v. Braisted, 363 U. S. 144.
Thus, Congress apparently has concluded that, at least where the
States are confronted with the public evils of crime, corruption,
and racketeering, more stringent state regulation of the
qualifications of union officials is not incompatible with the
national labor policy as embodied in § 7. Pp.
468 U. S.
503-510.
3. The issue whether the dues collection sanction authorized by
§ 93 of the New Jersey Act to effect the removal of disqualified
union officials abridges the employees' separate rights under § 7
of the NLRA to organize, and thus is preempted, cannot be decided
now, because of the procedural posture of this litigation.
Appellees' factual allegations as to this issue were never
addressed by the courts below. On remand, the
Page 468 U. S. 493
District Court should make the requisite findings of fact to
determine whether imposition of the dues collection ban will so
incapacitate appellee union as to prevent it from performing its
functions as the employees' chosen bargaining agent. Also, the
issue of the validity of § 93's second sanction -- prohibition of a
union's administration of its pension or welfare funds cannot be
decided now, despite the Court of Appeals' holding that the
sanction is expressly preempted by provisions of the Employee
Retirement Income Security Act. Because the state agency never
imposed this sanction on appellee union, no concrete application of
state law is presented, and the issue is hence not ripe for review.
Pp.
468 U. S.
510-512.
709 F.2d 815, vacated and remanded.
O'CONNOR, J., delivered the opinion of the Court, in which
BURGER, C.J., and BLACKMUN and REHNQUIST JJ., joined. WHITE, J.,
filed a dissenting opinion, in which POWELL and STEVENS, JJ.,
joined,
post, p.
468 U. S. 513.
BRENNAN and MARSHALL, JJ., took no part in the decision of the
cases.
JUSTICE O'CONNOR delivered the opinion of the Court.
In 1976, the citizens of New Jersey amended their State
Constitution to permit the legislative authorization of casino
Page 468 U. S. 494
gambling within the municipality of Atlantic City. [
Footnote 1] Determined to prevent the
infiltration of organized crime into its nascent casino industry
and to assure public trust in the industry's integrity, the New
Jersey Legislature enacted the Casino Control Act (Act),
N.J.Stat.Ann. § 5:12-1
et seq. (West Supp.1983-1984),
which provides for the comprehensive regulation of casino gambling,
including the regulation of unions representing industry employees.
Sections 86 and 93 of the Act specifically impose certain
qualification criteria on officials of labor organizations
representing casino industry employees. Those labor organizations
with officials found not to meet these standards may be prohibited
from receiving dues from casino industry employees and prohibited
from administering pension and welfare funds. The principal
question presented by these cases is whether the National Labor
Relations Act (NLRA), as amended, 29 U.S.C. § 141
et seq.,
precludes New Jersey from imposing these criteria on those whom
casino industry employees may select as officials of their
bargaining representatives. We hold that it does not.
I
A
The advent of casino gambling in New Jersey was heralded with
great expectations for the economic revitalization of the
Page 468 U. S. 495
Atlantic City region, but with equally great fears for the
potential for infiltration by organized crime. The state
legislature conducted extensive hearings and, in cooperation with
the Governor, commissioned numerous studies on how best to prevent
infiltration by organized crime into the casino industry. [
Footnote 2] These studies confirmed the
fact that the vast amount of money that flows daily through a
casino operation and the large number of unrecorded transactions
make the industry a particularly attractive and vulnerable target
for organized crime. The New Jersey Commission of Investigation
(NJCI), for example, found that there was a "well-organized highly
functional organized crime network in [New Jersey]" which had
become more interested in investing funds in legitimate
enterprises. [
Footnote 3] The
NJCI feared that such an incursion by organized crime into the
Atlantic City casinos might also be accompanied by extortion,
loansharking, commercial bribery, and tax and antitrust violations.
It was on the basis of these hearings and empirical studies that
New Jersey finally adopted the Act, a comprehensive statutory
scheme that authorizes casino gambling and establishes a rigorous
system of regulation for the entire casino industry.
In order to promote "public confidence and trust in the
credibility and integrity of the regulatory process and of
Page 468 U. S. 496
casino operations," the Act
"extend[s] strict State regulation to all persons, locations,
practices and associations related to the operation of licensed
casino enterprises and all related service industries."
N.J.Stat.Ann. § 5:12-1(b)(6) (West Supp.1983-1984). The Casino
Control Commission (Commission), an independent administrative
body, possesses broad regulatory authority over the casinos and
other related industries, §§ 5:12-63 to 5:12-75. The Division of
Gaming Enforcement (Division), a part of the Attorney General's
Office, is charged with the responsibility for investigating
license and permit applicants and for prosecuting violators of the
Act, §§ 5:12-76 to 5:12-79.
The Act imposes strict licensing requirements on any business
seeking to own and operate a casino hotel, §§ 5:12-84(a)-(c); on
suppliers of goods and services to casino hotels, §§ 5:12-12,
5:12-92; on all supervisory employees involved in casino
operations, §§ 5:12-9, 5:12-89; and on all employees with access to
the casino floor, §§ 5:12-7, 5:12-90. The Act requires
registration, rather than licensing, for employees of casino
hotels. Casino hotel employees include those performing
"service or custodial duties not directly related to operations
of the casino, including, without limitation, bartenders, waiters,
waitresses, maintenance personnel, kitchen staff, but whose
employment duties do not require or authorize access to the
casino."
§ 5:12-8. Most relevant to this litigation, § 93(a) of the Act
also requires labor organizations that represent or seek to
represent persons employed in casinos or casino hotels to register
annually with the Commission, § 5:12-93(a).
All those entities and persons required to be licensed or
registered are subject to the disqualification criteria set forth
in § 86 of the Act. Section 86 specifically lists criteria for the
disqualification of casino licensees. The Commission is authorized
to revoke, suspend, limit, or otherwise restrict the registration
of any casino hotel employees who would be disqualified for a
casino license. N.J.Stat.Ann. §§ 5:12-86, 5:12-91(b) (West
Supp.1983-1984). All industries offering
Page 468 U. S. 497
goods or services to the casinos are also subject to the
disqualification criteria of § 86. § 5:12-92.
Section 93(b) directly subjects registered labor organizations
to the § 86 disqualification criteria and imposes two express
penalties for noncompliance:
"No labor organization, union or affiliate registered or
required to be registered pursuant to this section and representing
or seeking to represent employees licensed or registered under this
act may receive any dues from any employee licensed or registered
under this act and employed by a casino licensee or its agent, or
administer any pension or welfare funds, if any officer, agent, or
principal employee of the labor organization, union or affiliate is
disqualified in accordance with the criteria contained in section
86 of this act. The commission may for the purposes of this
subsection waive any disqualification criterion consistent with the
public policy of this act and upon a finding that the interests of
justice so require."
The disqualification criteria referred to in § 86 include
convictions for a list of enumerated offenses or
"any other offense which indicates that licensure of the
applicant would be inimical to the policy of this act and to casino
operations."
N.J.Stat.Ann. § 5:12-86(c)(4) (West Supp.1983-1984).
Disqualification may also result if an individual is identified
"as a career offender or a member of a career offender cartel or
an associate of a career offender or career offender cartel in such
a manner which creates a reasonable belief that the association is
of such a nature as to be inimical to the policy of this act and to
gaming operations."
§ 5:12-86(f). [
Footnote
4]
Page 468 U. S. 498
B
Appellee Hotel and Restaurant Employees and Bartenders
International Union Local 54 (Local 54) is an unincorporated labor
organization within the meaning of § 2(5) of the NLRA, 29 U.S.C. §
152(5). Local 54 represents in collective bargaining approximately
12,000 employees, 8,000 of whom are employed in casino hotels in
Atlantic City. All of Local 54's casino hotel employees work in
traditional hotel and restaurant service-related positions; none is
employed in direct gambling operations. Appellee Frank Gerace is
the president of Local 54.
In 1978, Local 54 began filing with the Commission the annual
registration statement required by § 93(a) of the Act. Following a
lengthy investigation, the Division in 1981 reported to the
Commission that, in its view, Local 54's President Gerace,
Secretary-Treasurer Robert Lumio, and Grievance Manager Frank
Materio were disqualified under the criteria of § 86. Pursuant to
that section, the Commission scheduled a hearing on the Division's
allegations. When Local 54 raised objections to the
constitutionality of § 86 and § 93, the Commission ruled that it
lacked the authority to consider such challenges to its enabling
statute. In response, appellees filed a complaint in District
Court, [
Footnote 5] seeking
declaratory and injunctive relief on the grounds that § 86 and § 93
impermissibly regulate areas which are preempted by the NLRA, the
Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001
et seq., and the Labor-Management Reporting and Disclosure
Act of 1959
Page 468 U. S. 499
(LMRDA), 29 U.S.C. § 401
et seq., and that § 86(f)
violates the Constitution because it is both overbroad and vague.
Appellees also filed a motion for preliminary injunctive relief
alleging irreparable injury from being forced to participate in
further Commission proceedings.
After a hearing, the District Court denied the motion for a
preliminary injunction, concluding that appellees were unlikely to
succeed on the merits of their claims. [
Footnote 6]
536 F.
Supp. 317 (NJ 1982). Since no preliminary injunction was
entered, the Commission went forward with its disqualification
hearing. The Commission concluded that Gerace and Materio were
disqualified under § 86(f) because they were associated with
members of organized crime in a manner inimical to the policy of
the Act and to gaming operations. Local 54's Business Agent, Karlos
LaSane, was also held disqualified under § 86(c) because he had
been convicted in 1973 of extortion from persons doing business
with Atlantic City while he was a City Commissioner. [
Footnote 7] On the basis of its findings, the
Commission ordered that these individuals be removed as officers,
agents, or principal employees of Local 54, failing which Local 54
would be barred from collecting dues from any of its members who
were licensed or registered employees under the Act.
See
App. to Juris.Statements 206a-207a. The Commission later issued a
supplemental decision, determining that the prohibition against
dues collection would suffice to effectuate the removal of the
three union officials, and that it was therefore unnecessary to
invoke the additional sanction of prohibiting the disqualified
officials from administering pension and welfare funds.
Id. at 208a-215a.
Page 468 U. S. 500
Subsequent to the Commission's decision, a divided panel of the
United States Court of Appeals for the Third Circuit issued a
ruling concluding that the District Court had erred in refusing to
grant the preliminary injunction. 709 F.2d 815 (1983). Reaching the
merits of the underlying complaint, the court decided that § 93 of
the Act is preempted by § 7 of the NLRA insofar as it empowers the
Commission to disqualify elected union officials, and is preempted
by ERISA insofar as it empowers the Commission to prohibit
administration of pension and welfare funds. [
Footnote 8]
We noted probable jurisdiction, and consolidated the separate
appeals of the Commission and the Division to consider the
preemption issue, 464 U.S. 990 (1983). [
Footnote 9]
II
When federal preemption is invoked under the directive of the
Supremacy Clause, it falls to this Court to examine the presumed
intent of Congress.
See Fidelity Federal Savings & Loan
Assn. v. De la Cuesta, 458 U. S. 141,
458 U. S.
152-153 (1982).
Page 468 U. S. 501
Our task is quite simple if, in the federal enactment, Congress
has explicitly mandated the preemption of state law,
see Shaw
v. Delta Air Lines, Inc., 463 U. S. 85,
463 U. S. 95-100
(1983), or has adequately indicated an intent to occupy the field
of regulation, thereby displacing all state laws on the same
subject,
Rice v. Santa Fe Elevator Corp., 331 U.
S. 218,
331 U. S. 230
(1947). Even in the absence of such express language or implied
congressional intent to occupy the field, we may nevertheless find
state law to be displaced to the extent that it actually conflicts
with federal law. Such actual conflict between state and federal
law exists when "compliance with both federal and state regulations
is a physical impossibility,"
Florida Lime & Avocado
Growers, Inc. v. Paul, 373 U. S. 132,
373 U. S.
142-143 (1963), or when state law "stands as an obstacle
to the accomplishment and execution of the full purposes and
objectives of Congress,"
Hines v. Davidowitz, 312 U. S.
52,
312 U. S. 67
(1941).
See Michigan Canners & Freezers Assn., Inc. v.
Agricultural Marketing and Bargaining Board, 467 U.
S. 461,
467 U. S. 469
(1984);
Fidelity Federal Savings & Loan Assn. v. De la
Cuesta, supra.
These preemption principles are no less applicable in the field
of labor law. Section 7 of the NLRA, 49 Stat. 452, as amended, 29
U.S.C. § 157, the provision involved in this case, neither contains
explicit preemptive language nor otherwise indicates a
congressional intent to usurp the entire field of labor-management
relations.
See New York Telephone Co. v. New York State Dept.
of Labor, 440 U. S. 519,
440 U. S. 540
(1979);
Garner v. Teamsters, 346 U.
S. 485,
346 U. S. 488
(1953) ("The national . . . Act . . . leaves much to the states,
though Congress has refrained from telling us how much"). The Court
has, however, frequently applied traditional preemption principles
to find state law barred on the basis of an actual conflict with §
7. If employee conduct is protected under § 7, then state law which
interferes with the exercise of these federally protected rights
creates an actual conflict, and is preempted by direct operation of
the Supremacy Clause.
Page 468 U. S. 502
See, e.g., Nash v. Florida Industrial Comm'n,
389 U. S. 235,
389 U. S.
239-240 (1967) (invalidating state unemployment
compensation law);
Bus Employees v. Missouri, 374 U. S.
74,
374 U. S. 81-82
(1963) (striking down state statute prohibiting peaceful strikes
against public utilities);
Bus Employees v. Wisconsin
Board, 340 U. S. 383,
340 U. S. 394
(1951) (same);
Automobile Workers v. O'Brien, 339 U.
S. 454,
339 U. S.
458-459 (1950) (invalidating state "strike-vote"
legislation).
Appellants argue that the appropriate framework for preemption
analysis in these cases is the balancing test applied to those
state laws which fall within the so-called "local interests"
exception to the preemption doctrine first set forth in
San
Diego Building Trades Council v. Garmon, 359 U.
S. 236,
359 U. S.
243-244 (1959). They contend that, because New Jersey's
interest in crime control is "so deeply rooted in local feeling and
responsibility,"
ibid., the Act may yet be sustained as
long as the magnitude of the State's interest in the enactment
outweighs the resulting substantive interference with federally
protected rights.
See Operating Engineers v. Jones,
460 U. S. 669,
460 U. S. 683
(1983). This argument, however, confuses preemption which is based
on actual federal protection of the conduct at issue from that
which is based on the primary jurisdiction of the National Labor
Relations Board (NLRB).
See, e.g., Railroad Trainmen v.
Terminal Co., 394 U. S. 369,
394 U. S. 383,
n.19 (1969). In the latter situation, a presumption of federal
preemption applies even when the state law regulates conduct only
arguably protected by federal law. Such a preemption rule avoids
the potential for jurisdictional conflict between state courts or
agencies and the NLRB by ensuring that primary responsibility for
interpreting and applying this body of labor law remains with the
NLRB.
See Motor Coach Employees v. Lockridge, 403 U.
S. 274,
403 U. S.
286-289 (1971);
San Diego Building Trades Council v.
Garmon, supra, at
359 U. S.
244-245. This presumption of federal preemption, based
on the primary jurisdiction rationale, properly admits to exception
when unusually "deeply rooted"
Page 468 U. S. 503
local interests are at stake. In such cases, appropriate
consideration for the vitality of our federal system and for a
rational allocation of functions belies any easy inference that
Congress intended to deprive the States of their ability to retain
jurisdiction over such matters. We have, therefore, refrained from
finding that the NLRA preempts state court jurisdiction over state
breach of contract actions by strike replacements,
Belknap,
Inc. v. Hale, 463 U. S. 491
(1983), state trespass actions,
Sears, Roebuck & Co. v.
Carpenters, 436 U. S. 180
(1978), or state tort remedies for intentional infliction of
emotional distress,
Farmer v. Carpenters, 430 U.
S. 290 (1977).
If the state law regulates conduct that is actually protected by
federal law, however, preemption follows not as a matter of
protecting primary jurisdiction, but as a matter of substantive
right. Where, as here, the issue is one of an asserted substantive
conflict with a federal enactment, then
"[t]he relative importance to the State of its own law is not
material . . . , for the Framers of our Constitution provided that
the federal law must prevail."
Free v. Bland, 369 U. S. 663,
369 U. S. 666
(1962). We turn, therefore, to consider whether New Jersey's Act
actually conflicts with the casino industry employees' § 7
rights.
III
Section 7 guarantees to employees various rights, among them the
right "to bargain collectively through representatives of their own
choosing." 29 U.S.C. § 157. In a straightforward analysis, the
Court of Appeals found that this express right of employees to
choose their collective bargaining representatives encompasses an
unqualified right to choose the officials of these representatives.
Because § 93(b) of the Act precludes casino industry employees from
selecting as union officials individuals who do not meet the § 86
disqualification criteria, the Court of Appeals determined that
this provision clearly and directly conflicts with
Page 468 U. S. 504
§ 7 and, under traditional preemption analysis, must be held
preempted.
The Court of Appeals relied heavily on this Court's decision in
Hill v. Florida ex rel. Watson, 325 U.
S. 538 (1945), as support for the threshold proposition
that § 7 confers an unfettered right on employees to choose the
officials of their own bargaining representatives.
Hill
involved a Florida statute that provided for state licensing of
union business agents and prohibited the licensing of individuals
who had not been citizens for more than 10 years, who had been
convicted of a felony, or who were not of "good moral character."
The statute also required the unions to file annual reports.
Pursuant to this law, the Florida Attorney General obtained
injunctions against a union and its business agent, restraining
them from functioning until they had complied with the statute.
On review, the Court found that Florida's statute as applied
conflicted with § 7, explaining:
"The declared purpose of the Wagner Act, as shown in its first
section, is to encourage collective bargaining, and to protect the
'full freedom' of workers in the selection of bargaining
representatives of their own choice. To this end, Congress made it
illegal for an employer to interfere with, restrain or coerce
employees in selecting their representatives. Congress attached no
conditions whatsoever to their freedom of choice in this respect.
Their own best judgment, not that of someone else, was to be their
guide. 'Full freedom' to choose an agent means freedom to pass upon
that agent's qualifications."
325 U.S. at
325 U. S. 541.
The decision in
Hill does not control the present cases,
however, because Congress has, in our view, subsequently disclaimed
any intent to preempt all state regulation which touches upon the
specific right of employees to decide which individuals will serve
as officials of their bargaining representatives. As originally
enacted, and as interpreted by the
Page 468 U. S. 505
Court in
Hill, § 7 imposed no restrictions whatsoever
on employees' freedom to choose the officials of their bargaining
representatives. In 1959, however, Congress enacted the
Labor-Management Reporting and Disclosure Act (LMRDA), designed in
large part to address the growing problems of racketeering, crime,
and corruption in the labor movement.
See S.Rep. No. 187,
86th Cong., 1st Sess., 12-16 (1959); H.R.Rep. No. 741, 86th Cong.,
1st Sess., 9-12 (1959). Title V of LMRDA imposes various
restrictions on labor union officials and defines certain
qualifications for them. Specifically, 29 U.S.C. § 504(a) provides
in pertinent part:
"No person . . . who has been convicted of, or served any part
of a prison term resulting from his conviction of [a series of
enumerated crimes] shall serve . . . as an officer, director,
trustee, member of any executive board or similar governing body,
business agent, manager, organizer . . . of any labor organization
. . . for five years after such conviction or after the end of such
imprisonment. . . ."
By enacting § 504(a), Congress has unmistakably indicated that
the right of employees to select the officers of their bargaining
representatives is not absolute, and necessarily admits of some
exception. Of course, a strong counterargument can be made that
Congress intended § 504(a) to be the very measure of the exception,
thereby cutting back on the preemptive effect of § 7 only to that
extent, and no more. Although this is certainly a conceivable
reading of congressional intent, we are, however, not persuaded by
it.
As the Court has already recognized, another provision of LMRDA,
§ 603(a), [
Footnote 10]
is
"an express disclaimer of preemption
Page 468 U. S. 506
of state laws regulating the responsibilities of union
officials, except where such preemption is expressly provided. . .
."
De Veau v. Braisted, 363 U. S. 144,
363 U. S. 157
(1960) (plurality opinion);
see also id. at
363 U. S.
160-161 (BRENNAN, J., concurring in judgment) (LMRDA
"explicitly provides that it shall not displace such legislation of
the States"). [
Footnote 11]
In affirmatively preserving the operation of state laws, § 603(a)
indicates that Congress necessarily intended to preserve some room
for state action concerning the responsibilities and qualifications
of union officials. Moreover, § 504 itself makes clear that
Congress did not seek to impose a uniform federal standard on those
who may serve as union officials. An individual is disqualified
from holding office for five years under § 504 only if he has been
convicted of certain state law crimes. His eligibility for union
office may be restored earlier depending on the various state laws
providing for the restoration of citizen rights to convicted
felons.
See 104 Cong.Rec. 10991-10994 (1958) (remarks of
Sen. McNamara). Thus, the federal law's disqualification criteria
themselves are premised on state laws which of course vary
throughout the Nation. Finally, our conclusion that Congress might
not view such state regulation as necessarily interfering with
national labor policy is buttressed by consideration of the
concerns that led Congress to enact LMRDA in the first place.
Congress was prompted to take action in large part because the
governmental machinery was not "effective in policing specific
abuses at the local level" and in "stamp[ing] out crime and
corruption [in
Page 468 U. S. 507
unions]." S.Rep. No. 187,
supra, at 6. Consistent with
this overarching legislative purpose, we can more readily presume
that Congress would allow a State to adopt different and more
stringent qualification requirements for union officials to
effectuate this important goal.
In
De Veau v. Braisted, supra, this Court first
squarely confronted the issue of post-
Hill congressional
intent in the context of a challenge to § 8 of the New York
Waterfront Commission Act. The New York statute prohibited any
labor organization representing waterfront employees from
collecting dues if any of its officers or agents had been convicted
of a felony and had not subsequently been pardoned or cleared by
the parole board. The statute had been enacted in furtherance of an
interstate compact between New York and New Jersey, establishing a
bi-state commission intended to combat crime and corruption on the
States' mutual waterfront. The compact had been expressly approved
by Congress pursuant to Art. I, § 10, of the Federal Constitution.
The argument urged upon the Court was that the New York statute was
preempted by § 7 of the NLRA as conflicting with
Hill's
guarantee of "complete freedom of choice in the selection of
[waterfront employees'] representatives." 363 U.S. at
363 U. S. 152.
In an opinion for a four-Justice plurality, Justice Frankfurter
rejected this preemption argument and upheld the challenged
statute.
The plurality opinion began by noting that the NLRA
"does not exclude every state policy that may in fact restrict
the complete freedom of a group of employees to designate
'representatives of their own choosing.'"
Ibid. The plurality reasoned:
"It would misconceive the constitutional doctrine of preemption
-- of the exclusion because of federal regulation of what otherwise
is conceded state power -- to decide this case mechanically on an
absolute concept of free choice of representatives on the part of
employees, heedless
Page 468 U. S. 508
of the light that Congress has shed for our guidance. The
relevant question is whether we may fairly infer a congressional
purpose incompatible with the very narrow and historically
explained restrictions upon the choice of a bargaining
representative embodied in § 8 of the New York Waterfront
Commission Act.
Would Congress, with a lively regard for its
own federal labor policy, find in this state enactment a true, real
frustration, however dialetically plausible, of that
policy?"
Id. at
363 U. S. 153
(emphasis added).
After thus framing the inquiry, the plurality concluded that the
Court need not in fact "imaginatively summon" a hypothetical
congressional response since, in light of Congress' express
approval of the compact, federal preemption could not be found.
Ibid.
DeVeau's direct relevance for these cases lies less in
its approach to determining § 7's preemptive scope than in its
focus on the indicia of congressional intent that can be garnered
from Congress' approval of the compact. At congressional hearings,
labor union officials testified against the compact's ratification
on the specific ground that the New York statute conflicted with
federal labor policy, and that approval of the compact would
therefore appear to sanction all such state restrictions.
See 363 U.S. at
363 U. S. 151
(citing to testimony of International Longshoremen's Association).
In approving the compact over such objections, Congress apparently
concluded that, at least where the States were confronted with the
"public evils" [
Footnote 12]
of "crime, corruption, and racketeering," [
Footnote 13] more stringent state regulation of
the qualifications of union officials was not incompatible with the
national labor policy as embodied in § 7. [
Footnote 14]
Page 468 U. S. 509
In short, given Congress' intent as expressed in its enactment
of LMRDA and its approval of the bistate compact at issue in
De
Veau, it can no longer be maintained that § 7 necessarily and
obviously conflicts with every state regulation that may restrict
the right of employees to select certain individuals to serve as
the officials of their bargaining representatives. Nor can we find
that New Jersey's imposition of its disqualification criteria in
any way "stands as an obstacle to the accomplishment and execution
of the full purposes and objectives of Congress."
Hines v.
Davidowitz, 312 U.S. at
312 U. S. 67. In
its enactment of LMRDA and its awareness of New York's comparable
restrictions when approving the bistate compact, Congress has at
least indicated both that employees do not have an unqualified
right to choose their union officials and that certain state
disqualification requirements are compatible with § 7. This is
particularly true in the case of New Jersey's disqualification
criteria, the purpose of which is identical to that which motivated
those New York restrictions implicitly approved by Congress: both
statutes form part of comprehensive programs designed to "vindicate
a legitimate and compelling state interest, namely, the interest in
combatting local crime infesting a particular industry."
DeVeau
v. Braisted, supra, at
363 U. S. 155.
In the absence of a more specific congressional intent to the
contrary, we therefore conclude that New Jersey's regulation of the
qualifications of casino industry union officials does not actually
conflict with § 7, and so is not preempted by the NLRA.
We emphasize that this conclusion does not implicate the
employees' express § 7 right to select a particular labor union as
their collective bargaining representative, but only their
subsidiary right to select the officials of that union
organization. While the Court in
Hill v. Florida ex rel.
Watson,
Page 468 U. S. 510
apparently assumed that the two rights were undifferentiated and
equally protected, our reading of subsequent legislative action
indicates that Congress has since distinguished between the two,
and has accorded less than absolute protection to the employees'
right to choose their union officials. In this litigation, the
casino industry employees' freedom in the first instance to select
Local 54 to represent them in collective bargaining is simply not
affected by the qualification criteria of New Jersey's Act.
IV
Although the NLRA does not preclude § 93(b)'s imposition of
qualification standards on casino industry union officials,
[
Footnote 15] also at issue
is the separate validity of that provision's dues collection ban
imposed by the Commission to effect the removal of these
disqualified persons from their union positions. As in
Hill v.
Florida ex rel. Watson, a sanction for noncompliance with an
otherwise valid state regulation must, for preemption purposes, be
assessed independently in terms of its potential conflict with the
federal enactment. The Court in
Hill concluded that
Florida's filing requirement, while itself unobjectionable, could
not be enforced by an injunction against the union's "functioning
as a labor union" without contravening the NLRA.
See 325
U.S. at
325 U. S. 543.
Appellees vigorously contend that imposition of the § 93(b)'s dues
collection sanction will similarly prohibit Local 54 from
functioning
Page 468 U. S. 511
as the employees' bargaining representative, thereby directly
abridging the employees' separate § 7 rights to organize and
bargain collectively. According to affidavits submitted in the
District Court, 85% of Local 54's monthly income comes from
membership dues paid by casino hotel employees. Without these
payments, Local 54 claims that it could no longer process employee
grievances, administer collective bargaining agreements, bargain
for new agreements, organize the unorganized, or perform the other
responsibilities of a collective bargaining agent.
See
Brief for Appellees 23-24, and n. 11.
Unfortunately, because of the procedural posture of this
litigation, we cannot decide this issue. Appellees' factual
allegations were never addressed by the District Court and the
Court of Appeals. We are thus confronted with a situation
comparable to that presented in
Alabama State Federation of
Labor v. McAdory, 325 U. S. 450
(1945), in which the Court declined to decide whether the NLRA
preempted a state filing requirement for unions because the statute
had not been
"construed to operate . . . by its penal sanctions . . . to
prevent [the unions] . . . from functioning within the state for
noncompliance. . . ."
Id. at
325 U. S. 466.
We follow the same course here, and remand so that the District
Court can make the requisite findings of fact to determine whether
imposition of the dues collection ban will so incapacitate Local 54
as to prevent it from performing its functions as the employees'
chosen collective bargaining agent.
We observe that even a finding that § 7 prohibits imposition of
the dues collection sanction need not imply that New Jersey's
disqualification standards are not otherwise enforceable by the
Commission. The Act, for example, apparently grants broad powers to
the Commission to impose sanctions directly on disqualified persons
and to limit or restrict a labor organization's registration.
See N.J.Stat.Ann. § 5:12-64 (West Supp.1983-1984). The Act
also provides that the Commission "may exercise any proper power or
authority
Page 468 U. S. 512
necessary to perform the duties assigned to it by law," and that
"no specific enumeration of powers in this act shall be read to
limit the authority of the commission to administer this act." §
5:12-75. The Commission itself has implicitly construed the Act as
granting it the statutory authority to fashion different and less
severe sanctions than those expressly enumerated in § 93(b).
See App. to Juris.Statements 206a; 536 F. Supp. at 330. If
the Commission has correctly interpreted state law, an issue we of
course do not decide, it could then enforce § 93(b)'s
disqualification criteria by numerous other means.
Finally, we also decline to reach the validity of § 93(b)'s
second sanction -- prohibition of a union's administration of its
pension or welfare funds -- despite the Court of Appeals' unanimous
holding that the sanction is expressly preempted by § 514(a) of
ERISA, 29 U.S.C. § 1144(a). In its supplemental decision, the
Commission asserted its general authority to impose this sanction
on Local 54, but, exercising its broad discretion, chose not to do
so at that time. That decision rested both on the Commission's
assumption that the dues collection sanction alone would suffice to
ensure Local 54's compliance with the disqualification order and on
its determination that it lacked adequate information as to whether
Local 54 in fact administers pension and welfare funds within the
meaning of § 93(b), as well as to the manner in which such a
prohibition might impact the membership.
See App. to
Juris. Statements 214a;
supra, at
468 U. S. 499.
Because the Commission never imposed this sanction on Local 54, we
are presented with no concrete application of state law. The issue
is hence not ripe for review, and the Court of Appeals' holding
that the federal ERISA preempts this sanction must therefore be
vacated.
See, e.g., Longshoremen v. Boyd, 347 U.
S. 222,
347 U. S. 224
(1954).
V
We find that § 93 of New Jersey's Act is not preempted by § 7 of
the NLRA to the extent that it imposes certain limitations
Page 468 U. S. 513
on whom casino industry employees may choose to serve as
officials of their bargaining representatives. On remand, the
District Court should determine whether imposition of § 93(b)'s
sanction of prohibiting the collection of dues from casino industry
employees will effectively prevent the union from performing its
statutory functions as bargaining representative for its members.
The judgment of the Court of Appeals is therefore vacated, and the
cases are remanded to the Court of Appeals with instructions to
remand to the District Court for further proceedings consistent
with this opinion.
It is so ordered.
JUSTICE BRENNAN and JUSTICE MARSHALL took no part in the
decision of these cases.
* Together with No. 83-573,
Danziger, Acting Chairman,
Casino Control Commission of New Jersey, et al. v. Hotel &
Restaurant Employees & Bartenders International Union Local 54
et al., also on appeal from the same court.
[
Footnote 1]
That amendment provides in part:
"It shall be lawful for the Legislature to authorize by law the
establishment and operation, under regulation and control by the
State, of gambling houses or casinos within the boundaries, as
heretofore established, of the city of Atlantic City, . . . and to
license and tax such operations and equipment used in connection
therewith. Any law authorizing the establishment and operation of
such gambling establishments shall provide for the State revenues
derived therefrom to be applied solely for the purpose of providing
reductions in property taxes, rentals, telephone, gas, electric and
municipal utilities charges of, eligible senior citizens and
disabled residents of the State. . . ."
N.J. Const., Art. 4, § 7, � 2D.
A subsequent amendment permits revenues to be used as well to
provide health and transportation benefits for eligible senior
citizens and disabled residents.
Ibid.
[
Footnote 2]
See generally Cohen, The New Jersey Casino Control Act:
Creation of a Regulatory System, 6 Seton Hall Legis.J. 2-5 (1982);
Note, The Casino Act: Gambling's Past and the Casino Act's Future,
10 Rutgers-Camden L.J. 279 (1979).
[
Footnote 3]
See NJCI, Report and Recommendations on Casino Gambling
1C-2C (1977). Most relevant to these cases, this study specifically
noted:
"[E]xperience and collected intelligence regarding organized
crime strongly suggests [
sic] that there are few better
vehicles utilized by organized crime to gain a stranglehold on an
entire industry than labor racketeering. Organized crime control of
certain unions often requires the legitimate businessmen who employ
the services of the union members to pay extra homage to the
representatives of the underworld. Moreover, the ready source of
cash which union coffers provide can be employed as financing of
all sorts of legitimate or illicit ventures."
Id. at 1-H.
[
Footnote 4]
A "career offender," in turn, is defined as
"any person whose behavior is pursued in an occupational manner
or context for the purpose of economic gain, utilizing such methods
as are deemed criminal violations of the public policy of this
State."
N.J.Stat.Ann. § 5:12-86(f) (West Supp.1983-1984).
[
Footnote 5]
Defendants in that action, now appellants before this Court,
included G. Michael Brown, the Director of New Jersey's Department
of Law and Public Safety, Division of Gaming Enforcement; the
Division itself; and Thomas Kean, Governor of New Jersey. These
appellants filed an appeal in No. 83-498, and are referred to
collectively as appellant Division. Also defendants below were
Martin Danziger, Acting Chairman of the Commission, along with the
other members constituting the Commission. These appellants are
referred to as appellant Commission, and their appeal, No. 83-573,
has been consolidated with No. 83-498.
[
Footnote 6]
Appellants had, in turn, moved to dismiss the complaint on
abstention grounds, relying on the various strands of that doctrine
as enunciated in
Railroad Comm'n of Texas v. Pullman Co.,
312 U. S. 496
(1941);
Burford v. Sun Oil Co., 319 U.
S. 315 (1943); and
Younger v. Harris,
401 U. S. 37
(1971). The District Court concluded that none of these abstention
doctrines was applicable to this case.
536 F.
Supp. 317, 324-325 (NJ 1982).
[
Footnote 7]
One of the officials earlier identified in the Division's
report, Secretary-Treasurer Lumio, died in June, 1981, prior to the
Commission's decision.
[
Footnote 8]
The Court of Appeals also concluded that the District Court was
correct in declining to abstain. Because its decision on the NLRA
and ERISA preemption issues sufficed to dispose of the appeal, the
Court of Appeals had no occasion to pass on Local 54's overbreadth
and vagueness contentions, nor do we. Local 54 did not challenge on
appeal the District Court's decision that LMRDA does not preempt
the sanctions provided by the Act.
[
Footnote 9]
As a preliminary matter, we note appellant Commission's
contention that, despite the decision below, the case should still
be dismissed under the abstention doctrine of
Younger v.
Harris, supra. The New Jersey Attorney General -- representing
appellants Division, its Director, and the Governor -- does not,
however, press the
Younger abstention claim before this
Court, and instead submits to the jurisdiction of this Court in
order to obtain a more expeditious and final resolution of the
merits of the constitutional issue. Brief for Appellant Division
14, n. 6. Since the State's Attorney General has thereby agreed to
our adjudication of the controversy, considerations of comity are
not implicated, and we need not address the merits of the
Younger abstention claim.
See Ohio Bureau of
Employment Services v. Hodory, 431 U.
S. 471,
431 U. S. 480
(1977).
[
Footnote 10]
Section 603(a), as set forth in 29 U.S.C. § 523(a),
provides:
"Except as explicitly provided to the contrary, nothing in this
chapter shall reduce or limit the responsibilities of any labor
organization or any officer . . . under any other Federal law or
under the laws of any State, and, except as explicitly provided to
the contrary, nothing in this chapter shall take away any right or
bar any remedy to which members of a labor organization are
entitled under such other Federal law or law of any State."
See also 29 U.S.C. § 524 (separate "saving clause"
which explicitly preserves state authority to enforce general
criminal laws).
[
Footnote 11]
It was upon the authority of
De Veau that the District
Court in the instant cases rejected appellees' argument that § 93
of the Act was directly preempted by LMRDA.
See 536 F.
Supp. at 326-328. Appellees no longer press this contention.
[
Footnote 12]
H.R.Rep. No. 998, 83d Cong., 1st Sess., 1 (1953).
[
Footnote 13]
Ibid. See also S.Rep. No. 583, 83d Cong., 1st
Sess., 1-2 (1953).
[
Footnote 14]
In recommending approval of the compact, the House Judiciary
Committee distinguished between state laws directed specifically at
labor-management relations and those state laws directed at
entirely separate problems:
"The compact to which the committee here recommends that
Congress grant its consent is in no sense anti-labor legislation,
but, rather, anti-racketeering legislation."
H.R.Rep. No. 998,
supra, at 6.
[
Footnote 15]
We note that there is apparently no challenge to § 93(a)'s
separate requirement that each labor organization seeking to
represent casino hotel employees must register with the Commission
annually, and must disclose the names of its officers, agents,
affiliated organizations, and pension and welfare funds. Appellees
have not shown that this requirement of registration imposes any
burden on them. Indeed, they effectively concede that this § 93(a)
requirement, standing alone, presents no conflict with federal law
on the authority of
Hill v. Florida ex rel. Watson.
See 325 U.S. at
325 U. S. 543
(finding that the filing requirement "in and of itself " does not
conflict with the NLRA).
See Brief for Appellees
20-21.
JUSTICE WHITE, with whom JUSTICE POWELL and JUSTICE STEVENS
join, dissenting.
Section 93(b) of the New Jersey Casino Control Act restricts the
activities of unions representing workers employed in the casino
industry. In particular, it provides that a union may not collect
dues from casino workers or administer pension or welfare funds if
any of its officials is disqualified under the criteria set forth
in § 86. The Court purports to save some portion of this statute
[
Footnote 2/1] by holding that a
state law restricting the class of individuals who can serve as
officers in a union is not preempted by federal labor law. If §
93(b) did no more than that, I would agree with the Court's
Page 468 U. S. 514
resolution of these cases because, as the Court amply
demonstrates, Congress' actions in enacting the LMRDA indicate that
federal labor law does not preempt state laws which prevent certain
types of individuals from serving as union officials. [
Footnote 2/2] However, § 93(b) is not
directed at the individuals who are disqualified under § 86. It
imposes sanctions on the union itself and, in so doing, infringes
on the employees' federally protected rights.
Section 7 of the NLRA grants covered employees the right "to
bargain collectively through representatives of their own
choosing." 29 U.S.C. § 157. [
Footnote
2/3] A bargaining representative achieves this status by being
"designated or selected for the purposes of collective bargaining
by the majority of the employees
Page 468 U. S. 515
in a unit appropriate for such purposes." 29 U.S.C. § 159(a).
The employees' right to exercise this right is protected from
employer, 29 U.S.C. 158(a)(1), labor organization, 29 U.S.C. §
158(b)(1), and state,
Hill v. Florida ex rel. Watson,
325 U. S. 538
(1945), interference. The employees whose rights are involved in
these cases have exercised this right by selecting Local 54 as
their bargaining representative. [
Footnote 2/4] The State, acting pursuant to § 93(b), has
sought to prohibit Local 54 from collecting dues from these
employees, thereby effectively preventing the union from carrying
out the collective bargaining function and nullifying the
employees' exercise of their § 7 right.
In
Hill v. Florida ex rel. Watson, the Court held that
federal labor policy prohibits a State from enforcing permissible
regulations by the use of sanctions that prevent the union "from
functioning as a labor union."
Id. at
325 U. S. 543.
Allowing the State to so restrict the union's conduct infringes on
the employees' right to bargain collectively through the
representative of their own choosing, because it prevents that
representative from functioning as a collective bargaining agent.
The same effect would occur if New Jersey were to enjoin Local 54
from collecting dues from employees in the casino industry. A union
which cannot sustain itself financially obviously cannot
effectively engage in collective bargaining activities on behalf of
its members. Unlike the Court, I see no need to remand these cases
in order to determine whether, as a factual matter, Local 54 is so
dependent on dues that it will be prevented from effectively
functioning as a bargaining representative if that source of
revenue is cut off. I am willing to hold that, as a matter of law,
a statute
Page 468 U. S. 516
like § 93(b), which prohibits a union from collecting dues from
its members, impairs the union's ability to represent those members
to such an extent that it infringes on their § 7 right to bargain
through the representative of their choice. Since the Court refuses
to strike down the statute on this ground, I respectfully
dissent.
[
Footnote 2/1]
It is not clear what portion of the statute the Court upholds,
since it expressly refuses to decide whether the dues prohibition
and fund administration provisions are valid. Section 93(b) does
nothing more than impose those two restrictions on unions whose
officials are disqualified under the criteria set forth in § 86. It
does not, by its terms, provide a mechanism for disqualifying any
union officer. Therefore, while it appears that the Court holds
that a State is free to disqualify certain individuals from acting
as union officials as long as it does not impose sanctions on the
union itself, it is not clear that anything in § 93(b) enables the
State to do that.
[
Footnote 2/2]
If these cases required us to determine whether New Jersey could
enforce the limits in § 86 by imposing sanctions directly against
the disqualified individual, for example by imposing fines or
criminal penalties on those who hold union office after being
disqualified, I would hold that it could. Section 93(b) does not
purport to do that, however, and it is that statute which we are
asked to review.
[
Footnote 2/3]
The Court correctly recognizes that there is a fundamental
difference between the employees' absolute § 7 right to choose
which labor organization will act as their bargaining
representative and their less absolute right to determine who will
serve as officers in that organization. One need only examine the
actual workings of most unions in order to realize that the two
rights are not coextensive. For example, while a nonunion employee
in an agency shop retains his § 7 right to participate in the
selection of the bargaining representative, he often has no say in
who will serve as officers of the union that represents him in the
bargaining process, since such decisions are generally made by
union members only. Similarly, while only the members of a
particular collective bargaining unit are empowered to decide which
union will act as their bargaining representative, all members of
the union, even those not in the particular bargaining unit, are
generally free to participate in the process of electing union
officials. Thus, in a large union, it is possible that a
substantial majority of the members of a particular bargaining unit
may vote against the union official who is eventually elected. Even
though the members of the bargaining unit are unable to select the
union official of their choice in such situations, there would be
no legitimate claim that this somehow interfered with their § 7
right to bargain through the representative of their choice.
[
Footnote 2/4]
Under the NLRA, an individual, as well as a labor organization,
can serve as the exclusive bargaining representative. 29 U.S.C. §
162(4).
See Loisville Sanitary Wiper Co., 65 N.L.R.B. 88
(1945);
Robinson-Ransbottom Pottery Co., 27 N.L.R.B. 1093
(1940). The employees whose interests are at stake in these cases
have chosen a union (Local 54), rather than an individual as their
bargaining representative.