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Preemption of Worker-Retention and Labor-Peace Agreements at Airports (2017)

Chapter: PREEMPTION OF WORKER-RETENTION AND LABOR-PEACE AGREEMENTS AT AIRPORTS

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Suggested Citation:"PREEMPTION OF WORKER-RETENTION AND LABOR-PEACE AGREEMENTS AT AIRPORTS." National Academies of Sciences, Engineering, and Medicine. 2017. Preemption of Worker-Retention and Labor-Peace Agreements at Airports. Washington, DC: The National Academies Press. doi: 10.17226/24692.
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Suggested Citation:"PREEMPTION OF WORKER-RETENTION AND LABOR-PEACE AGREEMENTS AT AIRPORTS." National Academies of Sciences, Engineering, and Medicine. 2017. Preemption of Worker-Retention and Labor-Peace Agreements at Airports. Washington, DC: The National Academies Press. doi: 10.17226/24692.
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Suggested Citation:"PREEMPTION OF WORKER-RETENTION AND LABOR-PEACE AGREEMENTS AT AIRPORTS." National Academies of Sciences, Engineering, and Medicine. 2017. Preemption of Worker-Retention and Labor-Peace Agreements at Airports. Washington, DC: The National Academies Press. doi: 10.17226/24692.
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Suggested Citation:"PREEMPTION OF WORKER-RETENTION AND LABOR-PEACE AGREEMENTS AT AIRPORTS." National Academies of Sciences, Engineering, and Medicine. 2017. Preemption of Worker-Retention and Labor-Peace Agreements at Airports. Washington, DC: The National Academies Press. doi: 10.17226/24692.
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Suggested Citation:"PREEMPTION OF WORKER-RETENTION AND LABOR-PEACE AGREEMENTS AT AIRPORTS." National Academies of Sciences, Engineering, and Medicine. 2017. Preemption of Worker-Retention and Labor-Peace Agreements at Airports. Washington, DC: The National Academies Press. doi: 10.17226/24692.
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Suggested Citation:"PREEMPTION OF WORKER-RETENTION AND LABOR-PEACE AGREEMENTS AT AIRPORTS." National Academies of Sciences, Engineering, and Medicine. 2017. Preemption of Worker-Retention and Labor-Peace Agreements at Airports. Washington, DC: The National Academies Press. doi: 10.17226/24692.
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Suggested Citation:"PREEMPTION OF WORKER-RETENTION AND LABOR-PEACE AGREEMENTS AT AIRPORTS." National Academies of Sciences, Engineering, and Medicine. 2017. Preemption of Worker-Retention and Labor-Peace Agreements at Airports. Washington, DC: The National Academies Press. doi: 10.17226/24692.
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Suggested Citation:"PREEMPTION OF WORKER-RETENTION AND LABOR-PEACE AGREEMENTS AT AIRPORTS." National Academies of Sciences, Engineering, and Medicine. 2017. Preemption of Worker-Retention and Labor-Peace Agreements at Airports. Washington, DC: The National Academies Press. doi: 10.17226/24692.
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Suggested Citation:"PREEMPTION OF WORKER-RETENTION AND LABOR-PEACE AGREEMENTS AT AIRPORTS." National Academies of Sciences, Engineering, and Medicine. 2017. Preemption of Worker-Retention and Labor-Peace Agreements at Airports. Washington, DC: The National Academies Press. doi: 10.17226/24692.
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Suggested Citation:"PREEMPTION OF WORKER-RETENTION AND LABOR-PEACE AGREEMENTS AT AIRPORTS." National Academies of Sciences, Engineering, and Medicine. 2017. Preemption of Worker-Retention and Labor-Peace Agreements at Airports. Washington, DC: The National Academies Press. doi: 10.17226/24692.
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Suggested Citation:"PREEMPTION OF WORKER-RETENTION AND LABOR-PEACE AGREEMENTS AT AIRPORTS." National Academies of Sciences, Engineering, and Medicine. 2017. Preemption of Worker-Retention and Labor-Peace Agreements at Airports. Washington, DC: The National Academies Press. doi: 10.17226/24692.
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Suggested Citation:"PREEMPTION OF WORKER-RETENTION AND LABOR-PEACE AGREEMENTS AT AIRPORTS." National Academies of Sciences, Engineering, and Medicine. 2017. Preemption of Worker-Retention and Labor-Peace Agreements at Airports. Washington, DC: The National Academies Press. doi: 10.17226/24692.
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Suggested Citation:"PREEMPTION OF WORKER-RETENTION AND LABOR-PEACE AGREEMENTS AT AIRPORTS." National Academies of Sciences, Engineering, and Medicine. 2017. Preemption of Worker-Retention and Labor-Peace Agreements at Airports. Washington, DC: The National Academies Press. doi: 10.17226/24692.
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Suggested Citation:"PREEMPTION OF WORKER-RETENTION AND LABOR-PEACE AGREEMENTS AT AIRPORTS." National Academies of Sciences, Engineering, and Medicine. 2017. Preemption of Worker-Retention and Labor-Peace Agreements at Airports. Washington, DC: The National Academies Press. doi: 10.17226/24692.
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Suggested Citation:"PREEMPTION OF WORKER-RETENTION AND LABOR-PEACE AGREEMENTS AT AIRPORTS." National Academies of Sciences, Engineering, and Medicine. 2017. Preemption of Worker-Retention and Labor-Peace Agreements at Airports. Washington, DC: The National Academies Press. doi: 10.17226/24692.
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Suggested Citation:"PREEMPTION OF WORKER-RETENTION AND LABOR-PEACE AGREEMENTS AT AIRPORTS." National Academies of Sciences, Engineering, and Medicine. 2017. Preemption of Worker-Retention and Labor-Peace Agreements at Airports. Washington, DC: The National Academies Press. doi: 10.17226/24692.
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Suggested Citation:"PREEMPTION OF WORKER-RETENTION AND LABOR-PEACE AGREEMENTS AT AIRPORTS." National Academies of Sciences, Engineering, and Medicine. 2017. Preemption of Worker-Retention and Labor-Peace Agreements at Airports. Washington, DC: The National Academies Press. doi: 10.17226/24692.
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Suggested Citation:"PREEMPTION OF WORKER-RETENTION AND LABOR-PEACE AGREEMENTS AT AIRPORTS." National Academies of Sciences, Engineering, and Medicine. 2017. Preemption of Worker-Retention and Labor-Peace Agreements at Airports. Washington, DC: The National Academies Press. doi: 10.17226/24692.
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Suggested Citation:"PREEMPTION OF WORKER-RETENTION AND LABOR-PEACE AGREEMENTS AT AIRPORTS." National Academies of Sciences, Engineering, and Medicine. 2017. Preemption of Worker-Retention and Labor-Peace Agreements at Airports. Washington, DC: The National Academies Press. doi: 10.17226/24692.
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Suggested Citation:"PREEMPTION OF WORKER-RETENTION AND LABOR-PEACE AGREEMENTS AT AIRPORTS." National Academies of Sciences, Engineering, and Medicine. 2017. Preemption of Worker-Retention and Labor-Peace Agreements at Airports. Washington, DC: The National Academies Press. doi: 10.17226/24692.
×
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Suggested Citation:"PREEMPTION OF WORKER-RETENTION AND LABOR-PEACE AGREEMENTS AT AIRPORTS." National Academies of Sciences, Engineering, and Medicine. 2017. Preemption of Worker-Retention and Labor-Peace Agreements at Airports. Washington, DC: The National Academies Press. doi: 10.17226/24692.
×
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Suggested Citation:"PREEMPTION OF WORKER-RETENTION AND LABOR-PEACE AGREEMENTS AT AIRPORTS." National Academies of Sciences, Engineering, and Medicine. 2017. Preemption of Worker-Retention and Labor-Peace Agreements at Airports. Washington, DC: The National Academies Press. doi: 10.17226/24692.
×
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Suggested Citation:"PREEMPTION OF WORKER-RETENTION AND LABOR-PEACE AGREEMENTS AT AIRPORTS." National Academies of Sciences, Engineering, and Medicine. 2017. Preemption of Worker-Retention and Labor-Peace Agreements at Airports. Washington, DC: The National Academies Press. doi: 10.17226/24692.
×
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Suggested Citation:"PREEMPTION OF WORKER-RETENTION AND LABOR-PEACE AGREEMENTS AT AIRPORTS." National Academies of Sciences, Engineering, and Medicine. 2017. Preemption of Worker-Retention and Labor-Peace Agreements at Airports. Washington, DC: The National Academies Press. doi: 10.17226/24692.
×
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Suggested Citation:"PREEMPTION OF WORKER-RETENTION AND LABOR-PEACE AGREEMENTS AT AIRPORTS." National Academies of Sciences, Engineering, and Medicine. 2017. Preemption of Worker-Retention and Labor-Peace Agreements at Airports. Washington, DC: The National Academies Press. doi: 10.17226/24692.
×
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Suggested Citation:"PREEMPTION OF WORKER-RETENTION AND LABOR-PEACE AGREEMENTS AT AIRPORTS." National Academies of Sciences, Engineering, and Medicine. 2017. Preemption of Worker-Retention and Labor-Peace Agreements at Airports. Washington, DC: The National Academies Press. doi: 10.17226/24692.
×
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Suggested Citation:"PREEMPTION OF WORKER-RETENTION AND LABOR-PEACE AGREEMENTS AT AIRPORTS." National Academies of Sciences, Engineering, and Medicine. 2017. Preemption of Worker-Retention and Labor-Peace Agreements at Airports. Washington, DC: The National Academies Press. doi: 10.17226/24692.
×
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Suggested Citation:"PREEMPTION OF WORKER-RETENTION AND LABOR-PEACE AGREEMENTS AT AIRPORTS." National Academies of Sciences, Engineering, and Medicine. 2017. Preemption of Worker-Retention and Labor-Peace Agreements at Airports. Washington, DC: The National Academies Press. doi: 10.17226/24692.
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3PREEMPTION OF WORKER-RETENTION AND LABOR-PEACE AGREEMENTS AT AIRPORTS By Eric T. Smith, Kaplan Kirsch & Rockwell, LLP I. INTRODUCTION AND OVERVIEW A. Introduction to Topic A growing trend in the United States is that air- port sponsors are imposing—or considering imposing on parties with whom they contract—provisions that are generally referred to as “labor-harmony” or “labor- peace” requirements. In a similar manner, airport sponsors are also increasingly imposing—or consid- ering imposing—“worker-retention” provisions in contracts that involve concessions programs. The reasons for these trends are multifold, but they are all based on labor-union–related matters. The legality of imposing such contractual require- ments on airport businesses is complex, and the air- port sponsor faces the risk of being sued by both airport-based employees and on-airport businesses. Airport concessionaires, airlines, and the major air- line trade organization in the United States, Airlines for America (A4A), have already filed suits that involve these types of provisions. Although the facts and causes of action vary from situation to situation, the core assertions remain the same: The airport sponsor has allegedly overstepped the limitations placed on it under federal law or, in other words, the sponsor-initiated rules, regulations, or requirements are preempted by federal law. Several federal labor laws, including the National Labor Relations Act (NLRA) and Railway Labor Act (RLA), are the subject of these arguments. Other federal statutes that are related to airline opera- tions, such as the Airline Deregulation Act (ADA), are also the subject of the preemption arguments made in these cases. An understanding of the legal limits of locally based labor initiatives, the “standard” model for union organizing, and how labor-harmony require- ments may modify those standard protocols is essen- tial for airport management personnel, as well as for governing personnel (such as board members or elected officials) who may be asked to initiate a labor-harmony requirement at a given airport.1 B. Structure of Analysis—A Brief Synopsis This digest begins in Section Two with an over- view of the basic foundational legal principles that underpin labor-harmony agreements and worker- retention programs, including federal labor protec- tion laws, preemption, and the proprietary rights exception. Section Two includes discussion of the primary federal laws governing labor–management relationships in the airport context, the RLA and NLRA. It provides an outline of the particular parameters set out by these laws. Next, it discusses the concept of federal preemption and the preemp- tory effect of congressional action in the field of labor relations. Finally, it ends with a discussion of the development of an exception to preemption, known as the proprietary rights exception or market- participant doctrine. Section Three defines and describes the character- istics of labor-harmony agreements and worker- retention programs and explains their development under—and relationship to—federal labor law. This section covers particular mechanisms used by unions to their advantage in unionizing airport workers. Section Four more expressly connects the back- ground discussions in the previous sections to union- ization efforts at airports. This section includes specific data on unionization at airports, previous approaches used by airport employers and unions, and the implications and impacts that labor har- mony has on airport operations. Section Five specifically identifies sources of legal risk to airports that arise from the development and implementation of labor-harmony agreements. Section Six concludes the digest. In addition, sev- eral appendices provide ready reference points for airports that are dealing with labor-harmony and worker-retention issues. II. FEDERAL LABOR PROTECTION LAWS, PREEMPTION, AND THE PROPRIETARY RIGHTS EXCEPTION When implemented in a typical fashion (as dis- cussed in the following Section III), labor-harmony agreements alter the baseline protocols, procedures, and rights granted to employers and employees under the applicable federal labor laws. It is this 1 Readers should note that the scope of this digest’s subject matter is limited to issues involving labor- harmony agreements and worker-retention programs. Accordingly, while there are a number of other labor- related issues that can and do come up in the context of airports, such as living wage measures, part-time off, and scheduling, these are beyond the scope of this digest.

4alteration of statutorily granted rights that forms the basis for claims of preemption. In order to fully comprehend those arguments, it is necessary to first understand the foundation on which those arguments are constructed. The follow- ing is a brief outline of the legal and practical refer- ence points utilized in those claims. A. The NLRA and RLA—A Brief Summary and Introduction Two federal laws, the RLA and NLRA, control labor relations in most domestic industries, includ- ing those that involve airports and their employees, contractors, and entities with whom they contract. In 1926, Congress enacted the RLA to reduce the threat of work stoppages and other costly effects of labor–management disputes within the railway industry.2 At the time, railroads constituted the most important domestic transportation mode and were a significant driver of economic activity nationally.3 The RLA, as amended, establishes limits on railroad laborers’ and carriers’ use of self-help measures, such as strikes and worker lockouts, in disputes over labor issues. The RLA helps minimize labor disruption through regulation of the labor–management rela- tionship between workers and railroad and airline carriers by establishing standardized procedures for selecting union representation, setting ground rules for interactions between carriers and labor, and structuring negotiations between the parties.4 In 1936, Congress extended most of the RLA’s provi- sions to commercial airline carriers operating in interstate or foreign commerce.5 In 1935, in the midst of the Great Depression, Congress enacted the NLRA, which guarantees most private-sector workers’ rights to organize and collectively bargain over wages, hours, and other working conditions.6 Like the RLA, the NLRA seeks to regulate and lessen the impact of labor– management disputes.7 The NLRA dictates a process for workers to seek union representation, proscribes the issues that can be the subject of bargaining, and regulates how the parties can interact with each other and with workers during union selection and the collective bargaining process.8 The NLRA applies to private-sector employees other than railroad and airline carrier workers, as well as agricultural labor- ers, family domestic workers, supervisors, and inde- pendent contractors.9 Airports have a mix of workers: employees of airlines, employees of the companies that provide direct support to the airlines, and a large group of employees that more generally support airport operations, such as concession workers, cleaners, maintenance workers, and the like. Together, the RLA and the NLRA provide the legal background for labor issues at airports. Determining which statutory structure is appli- cable to a given group of employees is an essential initial analysis point. As previously indicated, the RLA controls labor issues that involve airline carri- ers and their employees, as well as potentially sub- contracted, underwing services and providers such as baggage handlers, aircraft fuelers, and aircraft cleaning personnel. The NLRA is potentially impli- cated in practically all other labor dispute contexts that involve private employers at airports, including those that involve concessions operations. In the case of an airport sponsor who directly employs affected personnel, an entirely different set of factors come into play. In that case, due to the public nature of the employer, it is likely that nei- ther the RLA nor the NLRA applies. A different case still may be presented in which the sponsor directly contracts with the affected entity. The analysis for determining which statute applies is fact-specific and must be done on a case-by-case basis, and thus is beyond the scope of this digest.10 2 Act of May 20, 1926, ch. 247, 44 Stat. 577 (codified as amended at ch. 8, tit. 45 of the United States Code). 3 See AlexAndrA Hegji, CongressionAl reseArCH serviCe, FederAl lAbor relAtions stAtutes—An overview 1 (2012). 4 See id. at 3–4. 5 Act of Apr. 10, 1936, ch. 166, 49 Stat. 1189 (codified at 45 U.S.C. § 181 et seq.); Hegji, supra note 3, at 3. 6 Act of July 6, 1935, Pub. L. No. 74-198, 49 Stat. 449 (codified as amended at ch. 7, tit. 29 of the United States Code). 7 Hegji, supra note 3, at 16. 8 29 U.S.C. § 151; Hegji, supra note 3, at 15–16. 9 29 U.S.C. § 152(3). 10 See, e.g., Aeroground, Inc., 28 NMB 510 (2001) (NMB describing, in finding airline subcontractor to be subject to the RLA, its two-part test: (1) First, the NMB determines whether the nature of the work is that traditionally performed by employ- ees of rail or air carriers—the “function” test. Second, the NMB determines whether the employer is directly or indirectly owned or controlled by, or under common control with a carrier or carriers—the “control” test. Both parts of the test must be satisfied for the NMB to assert jurisdiction). United Parcel Service, Inc. v. Nat’l Labor Relations Bd., 92 F.3d 1221, 1227 (D.C. Cir. 1996) (D.C. Circuit describ- ing, in affirming NLRB’s decision that United Parcel Ser- vice (UPS) was subject to the NLRA rather than the RLA, the standard for trucking services subject to the RLA: “(1) the trucker must perform services principally for an RLA carrier with which it is affiliated; (2) the trucker must be an integral part of that affiliate; and (3) the trucker must provide services ‘essential to the [RLA] carrier’s opera- tions.’” The decision distinguished UPS from a rival, Federal Express, which is subject to the RLA.). See also 45 U.S.C. § 151, which defines “carrier” for purposes of the RLA. This digest only provides an introduction to the analysis involved in application of the RLA and NLRA.

5Although both the RLA and NLRA contain numer- ous provisions relevant to the airport context, the focus for the purposes of this digest will be on the process for—and restrictions on—establishing union representation prior to collective bargaining, as these have been the most relevant to labor-harmony and worker-retention issues at airports. 1. Representation Elections To understand the significance of alternative means for a union to become an authorized bargain- ing agent for a given set of airport-based employees, which is the pivotal issue in the labor-harmony and worker-retention context, one must understand the “standard” procedure for unionization under both the RLA and NLRA. Both the RLA and NLRA provide for employee unionization by secret-ballot election. Differences in coverage, methodology, and impact on the employ- er’s nonairport work sites exist, however. The basics are covered in the following sections. a. An Overview of the Process.— 1. RLA.—Elections under the RLA generally pro- ceed along the following timeline: Either due to employee-generated requests or a union-centered initiative, a union sets out to assess whether a given group of employees can be organized at a particular company. The putative union seeks to garner sup- port among the company’s employees by a variety of means, ranging from holding one-on-one meetings to handing out informational materials. As discussed briefly in the previous section, the RLA was designed to deal with the threat of nation- wide disruptions to interstate commerce. For that reason, the scope of a putative bargaining union is much wider than under the NLRA (which, as dis- cussed in the following section, is usually focused on a single location). The bargaining unit is defined based on a particular “craft” or “class” whose con- stituents are established prior to voting. The National Mediation Board (NMB), the primary fed- eral entity in charge of administrating and enforc- ing the RLA, has interpreted the scope of a bargaining unit to include all employees of a partic- ular “class” or “craft” within the entire company, including all offices and work locations.11 Thus, there is a national consequence to a union drive in an RLA-covered company.12 If early assessments by the union indicate that there is sufficient level of interest to invest time, energy, and money into the organizational efforts, then the union will seek to obtain signed authoriza- tion cards from bargaining unit employees. The reason for the union to obtain the authoriza- tion cards is twofold. First, if the union has signed cards from a sufficient number of employees, then it may petition NMB to hold an election. Second, the union may attempt to use the signed cards to have the employer voluntarily recognize the union with- out an election. With respect to the election procedure, NMB usu- ally requires that a union seeking to gain recogni- tion as the bargaining representative submit an application to investigate a dispute (Form NMB-3), accompanied by authorization cards signed by more than 50 percent of the craft or class of employees.13 The appointed mediator determines whether there is a sufficient showing of interest to hold an election and assesses the validity of the cards submitted. If the mediator concludes that there are an insufficient num- ber of eligible cards, then the case is dismissed. If a sufficient number of cards has been filed to warrant an election, however, then an election date is scheduled. Noteworthy is the fact that under the RLA, another union may petition to put itself on the ballot by filing cards from more than 50 percent of employees.14 The election is operated under NMB direction and conducted via a secret ballot.15 NMB requires preelection campaigning by the parties to be con- ducted within certain bounds. These will be dis- cussed in Sections II.A.1.c and II.A.3 and 4. Generally speaking, however, the secret ballot must be implemented “without interference, influence, or coercion exercised by the carrier.”16 Historically, elec- tions take around 40 days from the time a petition is filed,17 but campaigning on the part of the union often begins in secret months before the filing.18 12 This fact may have a significant impact upon the dynamics involved in how a company views airport- or municipality-based initiatives that could result in union- ization of the company’s employees. 13 45 U.S.C. § 152, Twelfth; see also Hegji, supra note 3, at 7. 14 29 C.F.R. § 1206.2(a). 15 45 U.S.C. § 152, Ninth. 16 Id. 17 See Lafe E. Solomon, Acting General Counsel, Summary of Operations (Fiscal Year 2010), Memorandum GC 11-03 (Jan. 10, 2011) at 5 (median time between filing of petition and election was 38 days in 2010). 18 Marshall J. Coleman, The Manager’s Practical Guide to Union Organizing (Dec. 2003), at 5 (discussing union- ization in the context of electrical workers). 11 See 45 U.S.C. § 151, Fifth (“The term ‘employee’ as used herein includes every person in the services of a car- rier….”); 45 U.S.C. § 152, Fourth (“The majority of any craft or class of employees shall have the right to deter- mine who shall be the representative of the craft or class”); National Mediation Board, Frequently Asked Questions, http://www.nmb.gov/services/representation/frequently- asked-questions-representation/ (Revised Mar. 2013) [hereinafter NMB FAQ], Question 14.

6If more than 50 percent of the number of employees who voted choose a particular union, NMB will certify that union as the workers’ representative.19 If there are multiple unions seeking to represent the class or workers and no selection wins a majority, NMB may conduct a runoff election between the two choices that receive the most votes (including, if applicable, the choice of not unionizing).20 Once a union is selected, collective bargaining can commence. As mentioned previously, an alternative path to this result is for the union to request that the com- pany voluntarily recognize the union as the autho- rized bargaining representative, usually upon the union presenting a sufficient number of signed cards to the employer. This “card-check” procedure is dis- cussed in Section III.A.2.b. 2. NLRA.—The process for determining whether a given union may be certified as the authorized bargaining representative of a given group of employees under the NLRA is similar, but not iden- tical, to the process under the RLA. As with the RLA, the NLRA provides procedures for employees to unionize through secret-ballot election.21 A union, worker, or employer may petition the National Labor Relations Board (NLRB) to determine if a union should be recognized and certified as the represen- tative of a particular bargaining unit.22 NLRB serves a purpose similar to NMB: adminis- tering and enforcing the NLRA by conducting investi- gations and adjudicating representation disputes, complaints of unfair labor practices, and contract dis- putes.23 At least 30 percent of employees in a particu- lar previously established bargaining unit must sign a petition or authorization cards for NLRB to order an election.24 Despite this relatively low threshold, unions do not usually petition for an election unless they have well over 50 percent of the employees’ signed cards. Unlike under the RLA, NLRB has determined that under the NLRA, a bargaining unit is generally determined on a location-by-location basis, rather than on a company-wide basis.25 Bargaining units are determined by a process that precedes the elec- tion process. In general, after submission of the peti- tion or authorization cards, the employer and the union may enter into a consent election agreement, under which the employer and union agree to the procedures for the election.26 If an agreement is not reached, NLRB will hold a hearing and, if it determines it to be appropriate, will establish the parameters for a secret-ballot election to determine unionization.27 Thereafter, if a majority of workers who are members of the appropriate bargaining unit vote in favor of unionization, NRLB can certify the union as the workers’ representatives.28 In December 2014, NLRB made significant revi- sions to the procedural rules that govern representa- tion hearings and elections.29 The rules have been the subject of much debate, including in the courtroom and in Congress.30 The details of the new rules are beyond the scope of this digest. It is important to note, however, that one of the main components of the new rules is aimed at streamlining and reducing what NLRB calls “unnecessary delays” in the election pro- cess.31 These changes have had the effect of reducing the time between the petition and an election to 24 days, as compared with the prior median time of 38 days, with even shorter time periods possible.32 Although proponents for the new rules argue that the rules will address delays in election voting, critics argue that the rules result in employees being less informed on the merits of unionization and employ- ers being less prepared to respond to a vote.33 Despite opposition to the new rules from the business com- munity, the U.S. District Court for the District of Columbia recently rejected arguments that opposed 19 29 C.F.R. § 1202.4. Before 2012, the regulations pro- vided that a union needed a majority of all workers eligi- ble to vote, rather than voting workers, to vote in its favor in order to win the election. See Hegji, supra note 3, at 8. 20 FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95. 21 29 U.S.C. § 159(e). 22 29 U.S.C. § 159(c)(1). Establishment of a particular bargaining unit is a separate analysis that precedes deter- mination of representation and is typically done on a site- by-site basis. 23 Hegji, supra note 3, at 17. 24 29 U.S.C. § 159(e)(1); Hegji, supra note 3, at 21. 25 NRLB, bAsiC guide to tHe nAtionAl lAbor relAtions ACt (1997) (“NLRB Guide”); Hegji, supra note 3, at 20. 26 Hegji, supra note 3, at 21. 27 29 C.F.R. § 102.66-102.67; Hegji, supra note 3, at 21. 28 29 U.S.C. § 159; Hegji, supra note 3, at 21. 29 Representation—Case Procedures, 79 Fed. Reg. 74308 (Dec. 15, 2014). 30 U.S. Chamber of Commerce v. NLRB, Civ. Action No. 15-0009 (ABJ) (D. D.C. July 29, 2015); Tim Devaney, House Votes to Scrap Union Election Rule, Defying Veto Threat, tHe Hill, http://thehill.com/regulation/labor/236290- congress-votes-to-roll-back-ambush-election-rule (Mar. 19, 2015). Detractors have dubbed this rule the “ambush rule.” 31 79 Fed. Reg. at 74308; NLRB Representation Case- Procedures Fact Sheet, https://www.nlrb.gov/news-out- reach/fact-sheets/nlrb-representation-case-procedures- fact-sheet (visited Jan. 14, 2015). 32 Robert Combs, Analysis of NLRB Elections Shows Quicker Elections, More Union Wins, bloomberg BNA (Jan. 4, 2016), http://www.bna.com/analysis-nlrb-elections- b57982065730/; Dan DiMaggio, New Rule Speeds Union- ization Votes, Say Organizers, lAbor notes, http:// labornotes.org/2015/06/new-rule-speeds-unionization- votes-say-organizers (Jun. 19, 2015). 33 79 Fed. Reg. at 74318-23.

7the rules, and the Obama administration has like- wise opposed congressional measures to undo them.34 As a result of the rule changes, employers can likely expect less time to prepare for unionization elections or conduct an opposition campaign. Airport owners should be aware of this new limitation for airport-based businesses that desire to keep their operations union-free. b. Union-Organizing Activity: The Norm.—Within the previously cited time and legal framework, a labor union that seeks to represent a set of employ- ees will work toward (1) obtaining enough authori- zation cards to justify petitioning for an election and (2) winning the election when it is held. Although the specifics vary among particular situations, some generally applicable events appear in most union- organizing campaigns. Once a union becomes involved in organizing a group of employees, it will seek means to establish and broaden its support base within the identified company. Most often, a single or a small group of employees will act as the core around which this sup- port base will be built. The union will deploy person- nel to meet with the core rank-and-file employees to learn more about the workplace issues at play. The union personnel will then equip these employees with information and train them in how to approach other employees to gauge interest in joining a union.35 The union personnel initially act as “coaches” for the employees, but will take a more active role in recruitment via one-on-one meetings with other employees. A series of off-site meetings will be scheduled. Locations for these meetings vary from ad hoc discussions in parking lots to more formal- ized meetings at off-site locations such as restau- rants, bars, or even at the local union’s offices.36 The union will also often prepare and distribute written materials in the form of handouts, emails, or a Web site that are intended to convey the union’s argu- ments for unionization.37 If an election is scheduled, the union personnel and their employee agents are deeply involved in continuing to convey the union’s message and respond to employer-generated communication ini- tiatives that may oppose unionization. Often there is extensive back-and-forth (a sort of “tit for tat”) between those in favor and those opposed to union- ization. All of this requires an all-encompassing level of attention by the union and a substantial expenditure of resources in terms of time, personnel, and monetary outlays.38 Sources have calculated the average cost of union organizing (i.e., from the begin- ning to commencement of initial contract negotia- tions) to be between $1,000 and $3,500 per worker.39 c. Employer Activity.—Employers opposed to unionization engage in their own campaigns to counter organizing drives. The timing of employer campaigns depends on when the employer learns about the union’s efforts; from an employer stand- point, the earlier the better. If an employer is sur- prised by the filing of a petition seeking an election, it will have very little time to present its viewpoints, especially given the new rules on election schedul- ing previously detailed in this digest. If it begins such communication initiatives before authoriza- tion cards are signed, however, it will have a greater chance to present its arguments against unioniza- tion to its employees. Whatever the timing, employers often vigorously oppose organizing efforts. Employers will use vari- ous means and methods to get their messages out. An entire industry exists that provides services to employers to aid them in these efforts, ranging from collecting and providing information about particu- lar unions to supplying advisors who actively engage employees and present communications from the employer perspective. To say that these efforts are often time-intensive and expensive would be an understatement. One reported campaign at a nursing facility cost the employer in excess of $100,000.40 Figure 1 on Page 8 is a typical “preelection calendar” that shows the high level of organization and intensity involved in some preelection campaigns.41 38 This is especially true when legal issues exist with respect to the conduct of the election campaign. Legal fees related to challenges and responses to challenges (by both parties) can be significant. 39 riCHArd b. FreemAn & joel rogers, wHAt workers wAnt 189–90 (2006). 40 Elliot Grossman, Anti-Union Drive at Cederbrook Cost $115,000, tHe morning CAll (Mar. 23, 1994), http:// articles.mcall.com/1994-03-23/news/2957183_1_union- vote-union-campaign-union-drive. 41 winning nlrb eleCtions. Avoiding unionizAtion tHrougH PreventAtive emPloyee relAtions ProgrAms 167 (Jackson Lewis/CCH, 4th ed. 1995). Reproduced subject to fair use. See 17 U.S.C. § 107. 34 See supra, note 30. 35 See Organizing the Unorganized!, 57th Convention of the Amalgamated Transit Union, San Diego, Cal. (Aug. 26–30, 2013), at 3–5. 36 See lArry w. bridgesmitH, six stePs to stAying union- Free 2–3 (2007); Organizing the Unorganized!, 57th Con- vention of the Amalgamated Transit Union, San Diego, Cal. (Aug. 26–30, 2013), at 3–5. 37 See, e.g., unite Here! Airport Group Web site, avail- able at https://web.archive.org/web/20120126005223/http:// www.airportgroup.info/ (archived Jan. 26, 2012) (last visited Jan. 14, 2016).

8The allowable scope, content, means, and meth- ods that may be utilized by employers in conducting this campaign are outlined in Section II.A.3. 2. The Authorization Card In addition to certification by secret-ballot election, unions may also be recognized through other means under both the RLA and NLRA. Authorization cards, which are used to support petitions for elections, may also be used by unions to negotiate with employers for voluntary recognition of the union’s role as the workers’ representative. As discussed in Section III.A.2, the potential use of authorization cards is a key element in the labor-harmony equation. Authorization cards are physical cards that an employee uses to signify in writing to an employer the employee’s application for membership to a union or authorization for the union to represent him or her as an authorized bargaining representa- tive.42 Cards that only contain language asking for an election have also been held by NLRB to be valid under the NLRA.43 In contrast, under the RLA, NMB will not accept authorization cards that merely request an election as an indication of intent that the worker desires to unionize.44 The RLA provides that NMB can either conduct elections or use “any [other] appropriate method” to determine union representation.45 If a majority of employees sign authorization cards, then the RLA allows NMB to certify a union based on a carrier’s voluntary recognition that the union is the repre- sentative of its workers.46 In a similar manner, the NLRA provides that an employer may voluntarily recognize a union when presented with authorization cards signed by a major- ity of employees in a bargaining unit.47 The union and employer may also enter into a card-check agreement, discussed later in this section, under which an employer agrees it will recognize a union if the union obtains a certain number of authorization cards before the union officially begins to collect cards. Agreements may also require the union to collect a “supermajority” of cards under such an agreement.48 In addition, NLRB may require an employer to recognize a union if a majority of employees sign authorization cards and the employer is found to have engaged in unfair labor practices that make a fair election unlikely.49 An example of an authorization card is repro- duced in Figure 2. From Winning NLRB Elections, 4th Edition Figure 1. Preelection calendar. Figure 2. Example of a union authorization card. 42 National Labor Relations Board, Office of the Gen- eral Counsel, An Outline of Law and Procedure in Repre- sentation Cases 5–200 (Aug. 2012) (“NLRB Outline”). 43 Potomac Electric Co., 111 NLRB 553, 554–55 (1955); NLRB Outline, 5–200. 44 NMB FAQ, supra note 11, Question 5. 45 45 U.S.C. § 152, Ninth. 46 NMB FAQ, Question 19; Hegji, supra note 3, at 8. 47 gerAld mAyer, Cong. reseArCH serv., rl 32930, lAbor union reCognition ProCedures: use oF seCret bAllots And CArd CHeCks (2007). 48 Id. at 11. 49 Id. at 8; Nat’l Labor Relations Bd. v. Gissel Packing Co., 395 U.S. 575, 614–15 (1969).

93. Employer Rights to Engage Its Employees in Discussions About Unions Employers have a substantial number of rights with respect to efforts to inform employees about their viewpoints on potential unionization of their work- force. The surrender of these rights is used as a factual basis for asserting that labor-harmony require- ments violate federal labor law (see Section V). The RLA states that a carrier shall not “interfere… influence or coerce” its employees in the choice of representative.50 The Supreme Court has held, how- ever, that this provision of the RLA does not take away a carrier’s free speech rights. In interpreting this section of the RLA, the Supreme Court recognizes that influence does not mean simple expression of views, that the statute does not repeal the First Amendment, and that employer free speech is allowed.51 Therefore, the carrier is free to express its views, as long as there is no threat of retribution for supporting a union and no promise of benefits for not supporting a union.52 The RLA prohibits carriers from interfering with employees’ rights to organize and select a union representative.53 Carriers cannot deny or question employees’ rights to unionize or require prospec- tive employees to sign an agreement to join or not join a union.54 The carrier may not engage in surveillance, polling, or interrogation and may not discharge, transfer, or withhold benefits from an employee for his or her participation in union or organizing activities.55 Carriers also cannot unilaterally change pay rates, rules, and working conditions during the unionization process and within 30 days after NMB issues a decision.56 Although the RLA does not specifically list what constitutes unfair labor prac- tices, it does provide that NMB will look to general considerations of fair dealing, including the respon- sibility to bargain in good faith and refrain from interfering with the other party’s rights.57 In a similar manner, the NLRA cannot take away an employer’s rights under the First Amendment.58 Therefore, unless the employer activity constitutes an unfair labor act, it is permissible speech.59 In fact, Congress added Section 8(c) to the NLRA, which affirmed the right of employers to engage in free speech during election campaigns: (c) [Expression of views without threat of reprisal or force or promise of benefit] The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or prom- ise of benefit. Again, it is the modification or elimination of these federal rights that forms the challenge to many labor-harmony requirements (see Section V). With regard to that which is not allowed, the NLRA expressly prohibits employers from engaging in unfair labor practices, which it defines to include coercion of employees, interference with the forma- tion or administration of unions, or discrimination regarding employment in order to encourage or 55 45 U.S.C. § 152, Fourth, Fifth; Hegji, supra note 3, at 9. 56 45 U.S.C. § 156; Hegji, supra note 3, at 2, 9. 57 Hegji, supra note 3, at 9. 58 49 U.S.C. § 158(c). 59 Id. Note that an examination of the legislative history to 8(c) reflects that the purpose of this provision was to protect employers’ right of free speech by prohibiting the Board’s previous practice of using employers’ speeches and publications concerning labor organizations or collective bargaining as evidence that a subsequent employer act was undertaken with illegal motive. See H.R. ConF. reP. no. 80-510, at 45 (1947). Numerous examples of legislative history confirm and indicate that the provision was meant to allow employers to be heard, at their discretion, without being penalized; there is no evidence that Congress con- templated an audience’s right to receive information. See, e.g., 93 Cong. reC. 3953 (1947) (remarks of Sen. Taft); id. at 4261, 4266 (1947) (remarks of Sen. Ellender); id. at A3233 (1947) (remarks of Sen. Ball); H.R. reP. no. 80-245, at 33 (1947); S. reP. no. 80-105, at 23–24 (1947); 93 Cong. reC. 7487 (1947) (veto message of President Truman). 50 45 U.S.C. § 152. 51 Texas & N.O. R.R. v. Brotherhood of Ry. & S.S. Clerks, 281 U.S. 548, 568 (1930) stating that “Interference” with freedom of action and “coer- cion” refer to well-understood concepts of the law. … The use of the word [“influence”] is not to be taken as interdicting the normal relations and innocent com- munications which are part of all friendly intercourse, albeit between employer and employee. “Influence” in this context plainly means pressure, the use of the authority or power of either party to induce action by the other in derogation of what the statute calls “self- organization.” The phrase covers the abuse of relation or opportunity so as to corrupt or override the will…. 52 US Airways v. NMB, 177 F.3d 985 (D.C. Cir. 1999); Teamsters v. Braniff, 70 L.R.R.M. (BNA) 3333 D.D.C. (1969). But see, In US Air, Inc., 17 N.M.B. 377 (1990), where NMB disapproved of routinely used campaign strategies found acceptable under the NLRA, such as a poster criticizing past experiences of other groups of employees with the Teamsters. NMB also found US Airway’s speech to be coercive when the carrier predicted that the likelihood of strikes would increase and that the employ- ees would have to pay union dues if the union was certi- fied as the authorized bargaining representative. See also In US Airways, 24 N.M.B. 354 (1997), rev’d, 177 F.3d 985 (D.C. Cir. 1999), where NMB found “interference” when the carrier stated that employee committees were an alternative to having a union and that the committees would be disbanded if a union was elected. 53 45 U.S.C. § 152, Third. 54 45 U.S.C. § 152, Fourth, Fifth; Hegji, supra note 3, at 9.

10 discourage union membership.60 Under the NLRA, employers may campaign on company property and may require employees to attend so-called “captive audience” meetings at which the employer’s repre- sentatives can assert the employer’s position; how- ever, audience meetings cannot be held within 24 hours before an election.61 Employers can also give employees written information and hold individual meetings with employees, absent an agreement with the union stating otherwise.62 Under the NLRA, however, it is considered an unfair labor practice for an employer to restrain or coerce employees with regard to union activities.63 An employer cannot threaten to close operations or discriminate against an employee because of his or her union activities.64 An employer also cannot raise wages to discourage workers from joining or forming a union.65 Distilling all of the above, employers are prohib- ited from: 1. Threatening employees in any way (adverse job actions such as lowering pay, terminating employ- ment, closing the site, reducing staffing, etc.). 2. Promising employees anything (e.g., “if you don’t support the union, we will give you a raise”). 3. Interrogating employees (asking them any questions about whether they support the union, what the issues are within the workplace, what it would take to make employees happy, etc.). 4. Spying on employees (e.g., conducting surveil- lance of meetings with the union personnel).66 Although at first glance this appears to substan- tially limit the ability of an employer to discuss any- thing union-related with the employees, in practice, it leaves significant room for open communications. The law does not prevent employers from informing their employees of the reasons why a union is not necessary. As highlighted in Table 1, employers or their representatives may actively campaign against the union organization by providing factual state- ments or opinions to employees, as well as by provid- ing actual examples of matters with which there may be a discussion. Table 1. Permissable Employer Statements to Employees Under NLRA Means/ Method Examples Facts Joining a union means you would have to pay dues. The only meaningful tool a union has at the negotiating table is to threaten or engage in a strike. Opinions I don’t believe that it is in your best interest to join a union. I think that it would harm the work environment here if a union was placed between our employees and us. Examples It took over 2 years for that other company to get a contract, and they only got 2 percent raises. Unions can’t prevent an employer from cutting staff; just look at what happened to the airlines after 9/11. Thus, as long as the employer conforms to the above-described parameters, it is within its First Amendment rights. 4. Employee and Union Rights and Limitations As with carriers, under the RLA unions are pro- hibited from interfering with employees’ process of selecting (or not selecting) union representation.67 In a similar manner, unions are required to deal fairly with employers in organizing employees.68 Other than the general prohibition against coercion or threats,69 however, and some limited restrictions on campaigning on company property,70 union organizers are generally not restricted from other campaigning approaches.71 With respect to employee rights, the NLRA pro- vides substantial rights and protections. Employees have the right to be unionized and to “engage in other concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection.”72 Perhaps most important for purposes of the instant analysis, Section 7 of the NLRA specifically states that employees also have the right not to union- ize or engage in union or organizing activities.73 60 29 U.S.C. §§ 158(a), 160(c). 61 Peerless Plywood Co., 107 NLRB 427 (1953). 62 mAyer, supra note 47, at 5. 63 29 U.S.C. § 158(a)(1); mAyer, supra note 47, at 5. 64 mAyer, supra note 47, at 5. 65 Id. 66 Coleman, supra note 18, at 16–17 (discussing “TIPS”). 67 45 U.S.C. § 152, Third; Hegji, supra note 3, at 6. 68 Hegji, supra note 3, at 9. 69 29 U.S.C. 158(b)(1)(A), (2); mAyer, supra note 47, at 5. 70 mAyer, supra note 47, at 5. 71 Id. (discussing unions’ rights to engage employees in public areas and contact employees at their homes or by personal phone number or email address). 72 29 U.S.C. § 157. 73 29 U.S.C. § 158(b).

11 B. The General Rule—Labor Relations Matters Are Preempted By Federal Statutes, Rules, and Regulations The ground rules established by the RLA and NLRA have profound implications on state and local governments’ ability to regulate or otherwise alter labor relations due to the doctrine of federal preemp- tion. The Supremacy Clause of Article VI of the U.S. Constitution grants Congress the power to preempt state or local law.74 Under the doctrine of preemp- tion, a federal law displaces state law if that state law is found to be in conflict with the text or scope of the federal law.75 There are three kinds of preemption: (1) express preemption, (2) “actual conflict” preemption, and (3) “field preemption.”76 Express preemption exists when Congress enacts an explicit statutory demand that state law be displaced.77 Conflict preemption is found “where compliance with both federal and state regu- lations is a physical impossibility,” or where state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”78 Field preemption exists “where the scheme of federal regulation is sufficiently comprehen- sive to make reasonable the inference that Congress left no room for supplementary state regulation.”79 Courts have held that both the RLA and NLRA preempt the areas of state law regarding labor rela- tions in certain circumstances.80 Preemption under the RLA exists when (1) a state seeks to prohibit collective bargaining altogether by railway and air- line employees, (2) a state law cause of action depends on the interpretation of a collective bargaining agree- ment, and (3) a state law will frustrate the purpose of the RLA.81 Courts have held that many labor-related state and local regulations are generally preempted by the NLRA, either through conflict or field preemp- tion.82 The Supreme Court has in particular outlined two types of implied preemption applicable to NLRA cases: Garmon preemption and Machinist preemp- tion.83 Under Garmon preemption, courts prohibit regulation of “activit[ies] that the NLRA protects, prohibits, or arguably protects or prohibits.”84 Under Machinist preemption, courts will prohibit “state and municipal regulation concerning those aspects of labor–management relations that Congress intended ‘to be controlled by the free play of economic forces.’”85 According to this doctrine, states may not impose additional restrictions on economic approaches such as strikes or lockouts, unless such restrictions were presumably contemplated by Congress.86 C. Proprietary Rights Exception Although the case law makes clear that state and local governments generally cannot interfere with the laws and policies of the RLA and NLRA, there is an exception when a government entity is acting in a proprietary capacity rather than a regulatory capacity with respect to the challenged action.87 This is often referred to as the “market-participant doc- trine” or “proprietary rights exception.” 1. Genesis of the Proprietary Rights Exception The Supreme Court first acknowledged the market-participant doctrine in discussing the con- stitutionality of state action under the Commerce Clause in Hughes v. Alexandria Scrap Corporation.88 81 Air Transport Ass’n v. City and Cty. of San Francisco, 266 F.3d 1064, 1076 (9th Cir. 2001). 82 Hotel Employees & Restaurant Employees Union, Local 57 v. Sage Hospitality Res., LLC, 390 F.3d 206, 216 (3d Cir. 2004); San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 247–48 (1959); Machinists v. Wis. Employ- ment Relations Comm’n, 427 U.S. 132, 149–51 (1976); Wis. Dep’t. of Industry v. Gould, Inc., 475 U.S. 282, 286 (1986); Hegji, supra note 3, at 19. One particular provision in the NLRA, 29 U.S.C. § 164(b), provides that states may enact “right to work” laws, which are laws that require union membership as a condition of employment. 83 Sage, 390 F.3d at 216. 84 Sage at 212 (quoting Wis. Dep’t of Industry v. Gould, Inc., 475 U.S. 282, 286 (1986)). 85 Id. (quoting Machinists, 427 U.S. at 140). 86 Id. 87 See Air Transport Ass’n v. City and County of San Francisco, 266 F.3d 1064, 1076 n.4 (9th Cir. 2001). 88 426 U.S. 794 (1976). See White v. Mass. Council of Construction Employers, Inc., 460 U.S. 204, 206 (1983). 74 U.S. Const. art. VI, § 2. 75 Olympic Pipe Line Co. v. City of Seattle, 437 F.3d 872, 877 (9th Cir. 2006) (citing Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 299–300 (1988); Cal. Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 280–81 (1987)). 76 Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372–73 (2000). Courts and observers sometimes combine the latter two types of preemption into a single category, implied preemption. See English v. General Elec. Co., 496 U.S. 72, 79 n.5 (1990). 77 Olympic Pipe Line, 437 F.3d at 877 n.13 (citing Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383 (1992)). 78 Id. (citing Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142–43 (1963); Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). 79 Olympic Pipe Line, 437 F.3d at 877 n.13 (citing Moldo v. Matsco, Inc. (In re Cybernetic Servs., Inc.), 252 F.3d 1039, 1045–46 (9th Cir. 2001) (internal quotation marks omitted)). 80 Air Transport Ass’n v. City and Cty. of San Francisco, 266 F.3d 1064, 1076 (9th Cir. 2001); Fitz-Gerald v. Sky- West Airlines, Inc., 65 Cal. Rptr 3d 913, 919 (Cal. App. Ct. 2007) (citing Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246 (1994)) (RLA preempts state law causes of action that depend upon interpretation of a collective bargaining agreement); Machinists v. Wis. Employment Relations Comm’n, 427 U.S. 132, 149–51 (1976) (NLRA preempts state law).

12 In Hughes, the Court upheld a Maryland statute that had the effect of providing special state-funded incen- tives to in-state automobile scrappers to encourage the recycling of abandoned automobiles. In upholding the constitutionality of the statute, the Court stated that “[n]othing in the purposes animating the Commerce Clause prohibits a State, in the absence of congressional action, from participating in the market and exercising the right to favor its own citizens over others.”89 Because Maryland was participating in the market rather than regulating the market, the Court concluded that no constitutional violation existed.90 In several subsequent decisions, the Court considered additional types of state and local economic actions under the market-participant doctrine.91 In Wisconsin Department of Industry v. Gould Inc.— the first Supreme Court case that squarely addressed the market-participant doctrine in the context of the NLRA—the Court invalidated a Wisconsin law that prohibited state procurement agents from purchasing any product sold or manufactured by a firm that had violated the NLRA in three separate cases within any 5-year period.92 The Court stated that [b]ecause Wisconsin’s debarment law functions unambigu- ously as a supplemental sanction for violations of the NLRA, it conflicts with the Board’s comprehensive regulation of industrial relations in precisely the same way as would a state statute preventing repeat labor law violators from doing any business with private parties within the State.93 The Court rejected Wisconsin’s argument that it was exercising its proprietary rights because “it simply is not functioning as a private purchaser of services.”94 In 1993, the Court took the market-participant doctrine a step further by applying it to state control over contracts that affect unionization rights under the NLRA.95 In Boston Harbor, the Court ruled that a state water resources authority could require private companies bidding on Boston Harbor envi- ronmental cleanup work to adhere to a union- supported project labor agreement negotiated to avoid labor-related disruptions.96 Noting that private- sector companies were free to enter into such agree- ments with unions, the Court stated that “[t]o the extent that a private purchaser may choose a contractor based upon that contractor’s willingness to enter into a pre-hire agreement, a public entity as purchaser would be permitted to do the same.”97 Because the state water resources authority sought to complete the cleanup “as quickly and effectively as possible at the lowest cost,” the Court found that “[t]here is therefore no basis on which to distinguish the incentives at work here from those that operate elsewhere in the construction industry, incentives that this Court has recognized as legitimate.”98 Accordingly, the Court held that the bid specification was not a government regulation and thus not subject to preemption under the NLRA.99 The Court distinguished the case from the regulation in Gould, which it described as “a state agency’s attempt to compel conformity with the NLRA.”100 As stated by the Court, the conduct in Gould “was a state agen- cy’s attempt to compel conformity with the NLRA.”101 As a consequence, Gould “left open the question whether a State may act without offending the pre-emption principles of the NLRA when it acts as a proprietor and its acts therefore are not ‘tanta- mount to regulation’ or policymaking.”102 2. Development of the Exception and Identification of Limits Since Boston Harbor, a number of state and local governments have sought to mandate private-sector relationships with unions under the market- participant doctrine and, as a result, courts from around the country have occasionally considered application of the doctrine in a range of contexts. As articulated in Boston Harbor, state action falls within the market-participant exception to preemp- tion when the state (or local) public entity directly participates in the market by purchasing goods or services.103 Although in theory the distinction between government regulation and participation in the 89 Id. at 810. 90 Id. at 809. 91 See Reeves, Inc. v. Stake, 447 U.S. 429 (1980) (South Dakota policy of restricting sale of state-produced cement to state residents held constitutional); White v. Mass. Council of Construction Employers, Inc., 460 U.S. 429 (1983) (mayor’s executive order requiring, among other things, at least half of all workers hired under city-funded construction projects be bona fide city residents was consti- tutional). 92 475 U.S. 282 (1986). 93 Id. at 288. 94 Id. 95 Building Trades Council v. Associated Builders and Contractors of Mass./R.I., Inc., 507 U.S. 218 (1993) (“Boston Harbor”). 96 Id. at 221–22. 97 Id. at 231 (emphasis in original). 98 Id. at 232 (citing Woelke & Romero Framing Co. v. NLRB, 456 U.S. 645, 662 and n.14 (1982)). 99 Id. at 233. 100 Id. at 229. 101 Id. at 228. 102 Id. at 229. 103 See Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist., 498 F.3d 1031, 1040 (9th Cir. 2007) (describing the “single inquiry” in market-participant cases as “whether the challenged program constituted direct state participa- tion in the market”).

13 market might be easy enough to state, in practice, however, distinguishing between the two can become difficult.104 For instance, as indicated in Gould, if a state’s direct participation in the market is “tanta- mount to regulation,” the market-participant doctrine will not exempt the state’s action from preemption.105 The particular test used to determine whether the market-participant doctrine applies differs slightly between jurisdictions, although the general effect appears to be largely the same. The Fifth, Second, and Ninth Circuits have adopted a test known as the Cardinal Towing test. The Cardinal Towing test asks: First, does the challenged action essentially reflect the enti- ty’s own interest in its efficient procurement of needed goods and services, as measured by comparison with the typical behavior of private parties in similar circumstances? Second, does the narrow scope of the challenged action defeat an inference that its primary goal was to encourage a general policy rather than address a specific proprietary problem?106 Applying the Cardinal Towing test, the Ninth Circuit has explained that “[t]hese questions ‘seek to isolate a class of government interactions with the market that are so narrowly focused, and so in keep- ing with the ordinary behavior of private parties, that a regulatory impulse can be safely ruled out.’”107 The Third Circuit has identified a similar test, which asks whether (1) the challenged regulation serves to advance or preserve the state’s proprietary interest in a project or transaction as an investor, owner, or financier, and (2) the scope of the regula- tion is specifically tailored to the proprietary inter- est.108 A leading Third Circuit case, Hotel Employees and Restaurant Employees Union, Local 57 v. Sage Hospitality Resources, LLC. provides an example of the application of this test. In Sage, a hotel developer appealed a district court decision that required arbi- tration of a dispute with the union representing the developer’s employees.109 The developer argued that the NLRA preempted a municipal resolution requir- ing the developer to enter into labor agreements that include binding arbitration provisions as a con- dition to accepting tax-increment financing.110 Applying its preemption doctrine test, the Third Circuit held that the resolution was not preempted because the municipality, in passing the resolution, was acting as a market participant.111 First, the court noted that unlike other forms of government taxation, the revenues from the tax-increment financing provided to the developer were allocated specifically to benefit the tax-increment district, either for debt service or for other development activities.112 Second, the resolution was specifically tailored to protect the municipality’s proprietary interest, applying only to hotels and hospitality proj- ects receiving tax-increment financing.113 The reso- lution did not require participating contractors to sign labor agreements extending to other projects outside of the tax-increment projects.114 As a result, because the municipality was acting as a reasonable private investor, federal preemption did not apply. More recent cases have provided additional judi- cial gloss to the application of the market- participant doctrine. For instance, in Johnson, the Ninth Circuit addressed NLRA preemption of a project labor agreement between a district and trade council that required contractors on many district construction projects to use union hiring halls and also required workers to become union members within 7 days of their employment.115 The court held that the agreement constituted market participa- tion not subject to preemption by the NLRA, reason- ing that under the first question in the Cardinal Towing test, the agreement was for the purpose of efficiently procuring services for district construc- tion projects and, under the second question in the test, the agreement addressed construction projects that were paid for with specific allocated funds within a 3-year period of time.116 109 Id. at 208. 110 Id. 111 Id. at 218. 112 Id. at 216–17. 113 Id. at 217–18. 114 Id. at 218. 115 Johnson, 623 F.3d at 1016. 116 Id. at 1025–28. 104 See Sage, 390 F.3d at 214 (“[T]he line between state regulation that is subject to preemption and market par- ticipation that escapes preemption must be drawn more finely than by simply distinguishing between regulation through mandatory laws and regulation achieved through the spending or procurement power.”); see Associated Builders & Contrs., Inc. v. City of Jersey City, 2:14-cv- 05445-SDW-SCM (D. N.J. Aug. 3, 2015) (dismissing chal- lenge to an ordinance requiring Project Labor Agreements under Sage because the City was acting in its proprietary interest as a financier of a tax-abated project); George v. Richter, No. 11 Civ. 8648 (S.D.N.Y. Apr. 25, 2014) (dismiss- ing child caregivers union’s preemption challenge to City’s interference with collective bargaining agreement negoti- ations because the City’s efforts at cost savings were part of a larger effort to restructure public health insurance payments). 105 Wis. Dep’t of Indus., Labor & Human Relations v. Gould, 475 U.S. 282, 289 (1986). 106 Cardinal Towing and Auto Repair v. City of Bedford, 180 F.3d 686, 693 (5th Cir. 1999). 107 Johnson v. Rancho Santiago Cmty. College Dist., 623 F.3d 1011, 1022–1023 (9th Cir. Cal. 2010) (quoting Cardinal Towing). 108 Sage, 390 F.3d at 216.

14 III. LABOR-HARMONY AGREEMENTS AND WORKER-RETENTION PROGRAMS The previous sections describe the rules of the game when it comes to labor relations under the RLA and NLRA. The rules of the game can change, however, and the vehicles for doing so are local government-mandated agreements between employ- ers and unions to set their own rules. Although local government authority over labor relations is gener- ally preempted by federal labor laws, namely the RLA and NLRA, the mechanism for bypassing preemption is the proprietary-interest doctrine, as previously discussed. A. Definition of “Labor Peace” or “Labor Harmony” Labor-harmony agreements, also known as labor- peace agreements, are agreements that local govern- ments require private employers to enter into with unions to bid on public contracts or subcontracts.117 Thus, they are usually prerequisites to the private employer doing business with the municipality or on municipal property. The ostensible purpose of such agreements is to provide local governments as proprietors with assur- ance that there will be no labor disputes that dis- rupt the public goods or services provided through the private employer, although more often than not, there are more complicated political factors at play. As discussed in the following section, although local governments cannot mandate any specific terms to be included in the agreements between the private employers and the unions, the fact that an agree- ment must be negotiated in the first place provides unions with significant leverage in seeking conces- sions from employers. 1. “Book” Definition and Example Valid local ordinances that require labor-harmony agreements are uniformly open-ended and gener- ally straightforward. The primary elements are: (1) a proprietary basis for mandating labor-harmony agreements between private employers and unions, (2) the requirement to enter into a labor-harmony agreement with a union that seeks to organize the employer’s employees, and (3) the requirement that the terms of the labor-harmony agreement prevent strikes, work stoppages, and other disruptions. For example, the City of Philadelphia has enacted the following ordinance that covers ground handling services at the Philadelphia International Airport: (8) All lease and use agreements the City enters into with any air carrier operating at Philadelphia International Airport, including any amendments, extensions or renewals thereof, shall contain provisions which provide the follow- ing commitments to ensure uninterrupted services: (a) The air carrier shall require that any service contractor it retains to provide Ground Handling Services…at Philadelphia International Airport shall secure a Labor Peace Agreement with any labor organization representing, or seeking to represent, the employees of such contractor which shall be in effect on or before the effective date of the air carrier’s service agreements for such Ground Handling Services….118 Under Philadelphia’s labor-peace provision for ground handling services, a labor-peace agreement is defined as: [A] collective bargaining agreement, or other written agree- ment as defined under 29 U.S.C. § 185, between Ground Handling Services contractor and a labor organization which represents or is seeking to represent for purposes of collective bargaining the employees of such Ground Han- dling Services contractor. The Labor Peace Agreement shall contain terms prohibiting the labor organization and its members, and in the case of a collective bargaining agree- ment, the employees covered by the agreement, from engag- ing in picketing, strikes, work stoppages, boycotts or any other forms of interference with, or disruptions to, Ground Handling Services during the duration of the air carrier’s service agreement with such Ground Handling Services contractor….119 Philadelphia’s proprietary interest in avoiding strikes, reflected in the law’s reference to “ensure uninterrupted service,” is more expressly stated in the bill accompanying the law. The preamble to the bill states in part: The City of Philadelphia has a strong proprietary interest in protecting the substantial revenues it receives from the efficient operations of air carrier transportation at the Philadelphia International Airport (“the Airport”) and the volume of passenger enplanements at the Airport…. A requirement that air carriers who lease Airport terminal space from the City retain only those Ground Handling Ser- vice contractors who have a proper Labor Peace Agreement in effect to ensure the continuity of such service at the Air- port effectively protects the City against any loss of volume- based revenues the City receives from Airport operations by preventing labor disputes among these employees….120 Likewise, some local governments have also required nonaeronautical concessionaires at airports 117 Labor-harmony agreements resemble “project labor agreements,” which are specifically referenced in the NLRA. The difference between the two is that of process; labor-harmony agreements involve state and local govern- ments invoking their proprietary interest in order to require private employers working on publicly funded projects to agree to agreements resembling project-labor agreements. See U.S. CHAmber oF CommerCe, lAbor PeACe Agreements—government As union AdvoCAte 3 (2013); infra, § III.A.2. 118 PHilA. Code § 18-201(8). 119 PHilA. Code § 18-201(8)(c). 120 Phila. Bill No. 140829, Preamble (Jan. 15, 2015).

15 to abide by labor-harmony agreements, although the specific terms of the agreements to be entered into are not provided. For instance, a Miami-Dade County resolution provides: WHEREAS, Miami-Dade County has a financial and pro- prietary interest in the success of the concessionaires doing business at Miami International Airport… NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MIAMI-DADE COUNTY, FLORIDA, that all Requests for Proposals, Requests for Qualifications and bids for food/beverage, retail/news/gifts and hotel services at Miami International Airport (“MIA”) shall require the proposer to sign a labor peace agreement with the labor organization(s) that seeks to represent the proposer’s employees and submit such agreement as part of its proposal to assure that no labor dispute or unrest will disrupt their operations at MIA; and further requiring that all contracts for such concessions at MIA shall include a provision giving the County the right, in the event of a labor disruption, to suspend the County’s obligations under the contract while the labor disruption is ongoing and to use alternative means to provide the service that is affected by the labor disruption.121 An airport’s proprietary interest in avoiding strikes is generally stronger when its contractual relationship with potentially unionizable employees is more direct. For instance, the airport’s proprietary interest may be stronger when it is contracting directly with an employer of unionizable employees, rather than with an employer who contracts with a separate employer that has unionizable employees. 2. The Practical Definition—A Short Discussion While the terms of labor-harmony requirements imposed on private employers are open-ended and facially neutral with respect to unions’ and employ- ers’ interests, the practical effect of such laws is to provide unions with significant negotiating leverage over employers who oppose unionization. In prac- tice, unions can use this leverage to establish an environment in which they are more likely to suc- ceed in unionizing private employees. How, or to what extent, a public entity becomes involved in the implementation of a labor-harmony requirement can trigger preemption concerns. In the context of a public entity directly contracting or subcontracting, such terms may also implicate preemption issues. With a labor-harmony law that requires an agree- ment with the union in exchange for the union’s for- bearance from labor disruptions, what remains to be negotiated between the employer and the union is the concessions that the employer will grant to the union for this forbearance of union rights. Thus, although the applicable labor-harmony ordinance does not explicitly require a private employer to forego its rights under federal labor laws—which the employer could argue would be preempted— when implemented in the real world, such ordi- nances do, in practice, usually result in employers forfeiting some of their federal rights and thus trig- gering preemption issues. This “reading between the lines” is often a source of confusion between elected officials and airport management personnel. The fact that in most, if not all, cases where labor-harmony agreements are implemented, several common items are included in the final agreements between the private employers and the unions demonstrates how the requirements work and, ultimately, come under fire from both employers and employees. Two of the most important terms that unions seek in order to establish conditions advantageous to unionization are known as “neutrality” and “card- check” provisions. a. Introduction of Concept of “Neutrality.”— “Neutrality” in the context of unionization is the concept that the employer not take any position that supports or opposes efforts to unionize its employ- ees.122 In the airport context, it essentially means that the employer will not take any action to oppose the union’s efforts to obtain signed authorization cards. An employer’s concession to remain “neutral” with regard to unionization is extremely helpful for a union, as it allows the union to present its own uncontested, unopposed arguments in favor of unionization to the employees. As discussed previously in the digest, employer speech is protected under both the NLRA and the First Amendment. Under Section 8(c) of the NLRA, any views, arguments, or opinions may be expressed by an employer so long as they contain “no threat of reprisal or force or promise of benefit.”123 Thus, under the NLRA, employers are free to provide facts, examples, and opinions to their employees on their premises and on company time. The Supreme Court has previously stated that this statutory provision “merely implements the First Amendment” protec- tion of free speech.124 An employer may also waive its constitutional right to free speech if it does so “voluntarily, intelligently, and knowingly” in advance “with full awareness of the legal consequences.”125 This “freedom” to waive free speech rights is the basis for the enforceability of neu- trality agreements between employer and union. 122 See Laura J. Cooper, Privatizing Labor Law: Neu- trality/Card Check Agreements and the Role of the Arbi- trator, 83 ind. L. J. 1589, 1590 (2008). 123 29 U.S.C. § 158(c). 124 NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1970). 125 Int’l Union, United Auto. v. Dana Corp., 679 F.2d 634, 645 (6th Cir. 1982) (citing D.H. Overmyer v. Frick Co., 405 U.S. 174 (1972)). 121 Miami-Dade Cty. Res. No. R-148-07 (Feb. 6, 2007).

16 In the context of a labor-harmony agreement, the public entity merely requires the parties to agree to a labor-harmony agreement without imposing any specific terms, such as neutrality (the proverbial “agreement to agree”). The inclusion of such provi- sions in the agreement between the on-airport busi- ness and the union appears voluntary in nature. In reality, however, because the company seeking to do business at an airport must have an agreement with a union as a prerequisite to performing work at the airport, the union has significant—and at times, arguably, overwhelming—bargaining power. Some have asserted that the union has what amounts to a veto power over the question as to whether the company can do business at the airport. Thus, employers argue that they have no choice in agreeing to whatever is proposed by a union if they desire to continue conducting business with the public entity. Unions would argue that this situation may be viewed merely as the cost of doing business with the public entity and/or at an airport. Regard- less, it is these questions surrounding the lack of choice and union bargaining power that give rise to preemption issues—in this case, the forfeiture of the employer’s free speech rights. b. Introduction to Concept of Card Check.—Card- check certification is a method for an employer to recognize a union as the authorized bargaining rep- resentative without conducting an election. A card check involves the union obtaining “authorization cards” from employees and then submitting them to the employer, which in turn examines them to see if more than 50 percent of its employees are reflected in the signed cards. Under a card-check agreement between employer and union, the employer agrees ahead of time to voluntarily recognize and bargain with the union if the union obtains authorization cards from a majority of its employees.126 Card-check provisions allow a union to forego the substantial effort, time, and expense necessary to petition for and then engage in an active campaign seeking to be certified as the bargaining representative to the subject group of employees. As with neutrality provisions, a card-check agree- ment requires the employer to forego rights it other- wise would have under federal law.127 In the case of a card-check provision, the employer foregoes its rights under the RLA or NLRA to have an election to determine whether its employees unionize. Although voluntary card-check certification has long been a mechanism available to recognize unions, employers and their advocates argue that being required to forego elections, a well-established default mechanism for unionization, violates the fundamental tenants of federal labor law.128 In this respect, they cite federal court and NLRB cases sup- porting the primacy of elections.129 For their part, unions respond that the substantial cost and time required to undergo an election process—which may be prolonged by resistant employers—create an undue burden on unionization, and therefore, shorter, alternative means to recognition are justified. As previously discussed with respect to neutral- ity, the voluntary nature of a business agreeing to a card-check procedure gives rise to preemption issues—in this case, the forfeiture of the right to have an election via a secret-ballot procedure. With respect to card check, it can be argued that both the employer and employees are involuntarily surren- dering federally guaranteed rights, and thus, both groups may bring actions against the public entity. B. Other Employee-Centered “Benefits” that May Be Topics of Negotiation Other topics invariably become the subject of bar- gaining between an on-airport employer and a puta- tive union. One such topic that may be the subject of union–airport negotiations is so-called “worker retention” programs. Worker-retention programs are programs designed to facilitate the retention of employees during a tran- sition from one private contractor to another. Under a worker-retention program, an incoming contractor must consider hiring employees from the outgoing contractor. As with labor-harmony agreements, worker-retention programs may vary in process and substance. Some programs may require only volun- tary measures, such as job fairs, while others may include mandatory contractual requirements. For example, worker-retention programs for com- mercial airport concessionaires commonly require successor concessionaire employers to offer employ- ment to qualified persons previously employed with the predecessor concessionaire employer; these programs also prohibit successor concessionaire employers from firing retained employees without 126 Cooper, 83 ind. L. J. at 1591. 127 Since the late 2000s, there have been congressional efforts to amend the NLRA to provide card check as an alternative to elections. See, e.g., Employee Free Choice Act, H.R. 800, 110th Cong. (2007). None of these bills, how- ever, has passed both houses of Congress. 128 See Jonathan Kane & Christopher P. Zubowicz, Con- sequence of the Employee Free Choice Act: What’s Left of Section 7?, American Bar Association 2007 Annual Labor and Employment Law Conference, http://apps.american- bar.org/labor/annualconference/2007/materials/data/ papers/v2/070.pdf (discussing card-check certification in the context of the proposed Employee Free Choice Act). 129 Id. at 2–3 (citing Linden Lumber Div., Summer & Co. v. NLRB, 419 U.S. 301, 310 (1974); Dana Corp. and Metaldyne Corp., 351 NLRB No. 28 (2007)).

17 cause within 90 days of the transition.130 Worker- retention programs can be established on their own or may be established as part of or alongside labor- harmony agreement requirements. The stated purpose of worker-retention programs is to (1) attempt to lessen the impact on employees of an airport-based business after its closure and (2) assist incoming employers in obtaining employees who have already proved that they can pass the security checks required to obtain clearance into sterile areas. Worker-retention provisions could arguably benefit unions as well, assuming that a previously unionized workforce might desire to unionize again under a new employer. Other employee-centered terms may be a topic of negotiation, either between the on-airport employer and a union or between a union and the airport. One topic that appears to come up often is access to the airport. This topic specifically covers union access to workplaces that are otherwise prohibited. Additional topics are those centered on union access to employers’ employee contact information and arbitration provisions.131 The impact and importance of these types of mat- ters, both individually and collectively, cannot be understated. Access to the workplace in the airport setting, especially with respect to concessions opera- tions, may be critical for making and continuing contact with putative union members. Concession operations often operate in the sterile areas of an airport (i.e., those areas beyond the security check- points) and thus present an obstacle to union organizers. Unions are increasingly including provi- sions in labor-harmony agreements that provide for employer-assisted access to union organizers. This often takes the form of an agreement that an employer will provide escorted access to the sterile areas. Employers may find this term problematic because such activities may be perceived as tenant- sanctioned solicitation on airport premises.132 In some instances, the union may approach the airport directly and request that it consider certain access arrangements. For many reasons that are not covered herein, both of these scenarios present many issues for the airport owner/operator. Most of these airport owner issues could require the airport to reject such access proposals to avoid security or liti- gation by third parties against the airport. Along the same lines, to aid union access to puta- tive members, unions often request lists of employ- ees, along with home addresses, email addresses, and telephone numbers, prior to petitioning for an elec- tion and before the union is certified as the autho- rized bargaining representative. Such requests are usually made to the on-airport businesses, but they could also be made to the airport. Regardless of to whom the request is made, airport owners and busi- nesses may express concerns with regard to employee rights to privacy and the potential liability that may attach to releasing such private information. Finally, another example of an employee-centered benefit that has recently been the subject of negoti- ated agreements between employers and unions is the application of local “living wage” ordinances. With respect to airports, significant airport-centered pushes by unions for legislatively mandated increases in on- airport wages have taken place in many cities.133 With respect to the on-airport businesses, it appears that in some cases unions have advocated for organized workers to be exempt from living wage laws (more accurately, that employees covered by collective bargaining agreements need not be paid the minimum wage otherwise required under the law). It is possible that in the process of negotiating a labor-harmony agreement, this fact may come into play and could act as an incentive for the employer to assent to union demands.134 For example, the City of Philadelphia’s living wage ordinance provides that compliance with its require- ments “may be waived by a bona fide collective bargaining agreement.”135 As a result, unions seeking 130 See, e.g., San Jose Mun. Code 25.11.711.700–.740; SeaTac Municipal Code 7.45.060 (upheld in Filo Foods, LLC v. City of SeaTac, Case No. 89723-9 (Wash. 2015)). 131 See, e.g., Los Angeles Department of Airports Con- struction Project Labor Agreement, Art. IV (Nov. 19, 1999) (providing union access to premises). 132 If the agreement to provide for tenant-escorted access to sterile areas occurred after a union was certified as the authorized bargaining representative of the tenant’s employees, then a strong case may be made for the union personnel having a business purpose to visit the tenant. When the agreement addresses precertification activities (essentially a union soliciting employees for support), the case is not so clear. 133 Broward County, Florida, in October 2015, after an extended effort by SEIU, enacted an ordinance requiring the payment of certain minimum wages for workers at Ft. Lauderdale International Airport. Similar initiatives are occurring across the United States, including efforts focused on New York and Washington, D.C., area airports. See Luz Lazo, Airport Workers Plan Disruptions in Nine U.S. Cities on MLK Day, wAsH. Post (Jan. 15, 2016), https:// www.washingtonpost.com/news/dr-gridlock/wp/2016/ 01/15/airport-workers-plan-disruptions-in-nine-us-cities- on-mlk-day/. 134 Peter Jamison, David Zahniser & Emily Alpert Reyes, L.A. Labor Leaders Seek Minimum Wage Exemption for Firms with Union Workers, L.A. times (May 27, 2015), http://www.latimes.com/local/lanow/la-me-ln-los-angeles- minimum-wage-unions-20150526-story.html. For com- mentary on unions’ use of living wage laws, see Maxford Nelson, “Living Wage” Laws Are Union Lifesaver, wAll street journAl (Oct. 3, 2014). 135 PHilA. Code § 17-1304(10).

18 recognition by Philadelphia government subcon- tractors can offer exemption from Philadelphia’s living wage law, thereby reducing the employer’s costs, in return for recognition. This example demonstrates how rights and benefits outside the NLRA and RLA may become intertwined with union recognition negotiations. These and other rights may provide additional bargaining tools between the employer and union, although in general they are not as central as the issues of neutrality and card check. These topics are accordingly not the focus of this digest and are only briefly addressed. IV. APPLICABILITY TO AIRPORTS A. Relevance of Labor Laws and Preemption in the Airport Context—A Survey of Matters that Impact Airports, Challenges to Organizing Airport-Based Employees, and Related Political and Practical Factors Depending on the size of a particular airport, hundreds—or sometimes thousands—of persons work on airport property. A large portion of these persons do not work for the airlines (which are typi- cally already unionized) or the airport itself, but rather are employed by companies that contract with the airport or the airlines to provide certain services. Especially at larger airports, a substantial number of employees work for concessions busi- nesses and for companies with whom airlines con- tract to service their aircraft. Unions’ major source of income is the dues paid by members. For decades, unions have been facing declining membership and, therefore, declining income. Specific data on declining union member- ship is discussed in the next subsection. Unions have increased efforts to obtain new private-sector members, and concessions and aircraft service workers represent a tremendous area for recruit- ing new members. As discussed in the following section, however, unions face many challenges to obtaining new members, and these hurdles are even more substantial at airports. These challenges are at the root of the reasons why unions are increasingly looking to nontraditional organizing techniques, such as use of labor-harmony agree- ments, to obtain new members. 1. General Statistics on Union Organizing a. Unionization Statistics.—It is well docu- mented that union membership has been sliding for decades. The number of unionized workers, both in absolute numbers and as a proportion of the overall workforce, has been declining for many years.136 Since 1983, the overall union membership has decreased from approximately 20 percent of the working population to just over 11 percent in 2014.137 Although unions have been better able to maintain unionization in the public sector, result- ing in proportionally higher unionization rates there, the private-sector unionization rate has fallen to less than half of what it was 25 years ago and now stands around 6.5 percent.138 According to research literature, since the 1990s the “vast majority” of new union members in the pri- vate sector have unionized outside of NLRB’s elec- tion procedures.139 Union elections were three times more common in 2000 than they were in 2012, and the number of new workers organized has dropped from 100,000 to 40,000 during the same time.140 Even though fewer private sector workers become union members through the election pro- cess, unions’ success rates in elections have improved, indicating that unions have become more strategic in utilizing the election process.141 In 2015 the unionization success rate was 66 percent, com- pared to 50 percent in 1997.142 Although unions may be more selective in utilizing the formal election process, and more successful in the elections they participate in, they still face an overall dwindling number of unionized members. The statistics are also consistent with the assertion that unions are less willing to risk their limited resources to engage in the formal election process and instead seek recognition through alternative means. 136 Henry S. Farber, Union Organizing Decisions in a Deteriorating Environment: The Composition of Represen- tation Elections and the Decline in Turnout, Princeton University Industrial Relations Section, Working Paper No. 577, at 1, http://arks/Princeton.edu/ark:/88435/dsp- 01mg74qm23v (Nov. 4, 2013). 137 Bureau of Labor Statistics, U.S. Dep’t of Labor, Union Members–2015, USDL-16-0158 (Jan. 28, 2016) [hereinaf- ter BLS 2015], at 1. 138 BLS 2015, at 1 (private-sector rate for 2015 was 6.7 percent); Barry T. Hirsch & David A. Macpherson, Union Membership and Coverage Database from the Current Population Survey, at www.trinity.edu/bhirsch/unionstats (Jan. 5, 2009). 139 Dorian T. Warren, Union Organizing in National Labor Relations Board Elections, Roosevelt Institute (Oct. 7, 2015), at 1. 140 Warren at 2–3. 141 Id. See also NLRB, eleCtion rePorts FY 2011–FY 2015 (available at https://www.nlrb.gov/reports-guidance/ reports/election-reports) and bureAu oF lAbor stAtistiCs, emPloyee union rePresentAtion eleCtions, 1997–2009, http://www.bls.gov.opub/ted/2010/ted_20100709.htm (July 9, 2010) [hereinafter BLS 1997–2009] (showing success rates increasing while elections decreasing). 142 NLRB, FY 2015 NLRB eleCtions–summAry (avail- able at https://www.nlrb.gov/reports-guidance/reports/ election-reports/election-reports-fy-2015); BLS 1997–2009.

19 b. Costs to Union to Organize a Work Unit.— Organizing workers is both a costly and uncertain process.143 The costs to a union in organizing a unit can include monitoring and responding to management activity, engaging with employees, and campaigning to collect signatures.144 As discussed in Section II.A.1.a, “campaigning” before petitioning for an election and then between the petition and the election is a long and involved process that includes numerous persons on the ground, as well as a litany of supporting person- nel such as counsel and research staff. There are few formally researched estimates of unions’ organizing costs. One commonly cited paper estimated the cost per each new member to be just over $3,000 (adjusted for inflation to 2015 dollars).145 Although this estimate reflects analysis of organizing data that is now decades old, it provides at least a baseline for the mercurial costs associated with unionizing.146 The literature has also noted that the costs required to maintain or increase union numbers likely far exceed the amount unions spend on orga- nizing.147 Because the costs of organization are based on federal labor rules, i.e., the election process, unions have directed considerable effort and resources to reforming the labor organization process.148 Considering the overall success rate for unions is still only around 66 percent, substantial risk exists for unions investing such sums.149 2. Practical Airport-Centered Realities for Unions Compounding the general challenges for unions, from a practical standpoint there are numerous spe- cific or unique obstacles that present themselves to unions that are attempting to organize employees at airports, including the characteristics of the workforce and the workplace. These make it particularly difficult to organize employees and show why unions are increasingly looking for alterna- tives to traditional organizing. a. The Relevance of the Security Identification Display Area (SIDA) and Related Security Concerns.— Security at airports presents a unique challenge to unions that are attempting to conduct organizing activities within SIDAs in airports. Federal and local security requirements request that all employ- ees and visitors be screened and display badges within certain areas of the airport; this potentially prevents unions from campaigning or conducting other union activities in employer areas that might be accessible outside SIDAs. The practical impact of this is an almost insur- mountable barrier to having a nonemployee come near the workplace to actively engage employees about the potential for being represented by a union. Further, most airports forbid use of SIDA credentials to gain access to secured areas when not on company time. This similarly constructs a barrier to having employees serve as agents for the union to actively engage other workers when they are not working. In addition, most airports have security require- ments that prohibit any activity that may adversely impact passenger movement through the terminal. This further hinders most attempts to engage in large-scale informational activities. b. Nature of Potential Units at Airports.—The characteristics of employee units at airports also present a particular problem for unions trying to organize on-airport private employees. These characteristics include: 1. Size.—Airport employee units are relatively small, resulting in fewer employees unionized as a result of each campaign. For example, under the “developer” and “fee manager” concession models, the concessions programs are made up of many independently operated entities who may only employ 20 employees each. In light of the costs of organizing employees, the potential return on investment may be small. 2. Cost and Work-Rule Sensitivity.—In general, doing business on an airport presents some added financial challenges. Costs to start the business are often high, and businesses face considerable uncertainty. Large-scale disruptions in passenger throughput (such as the Severe Acute Respiratory Syndrome (SARS) epidemic or the terrorist attacks of September 11, 2001) can decimate a business in a short period of time. Major changes can occur even without such far-reaching events. Airlines may 143 Emin Dinlersoz, Jeremy Greenwood & Henry R. Hyatt, Who Do Unions Target? Unionization Over the Life- Cycle of U.S. Businesses, IZA Discussion Papers, no. 8416, hdl.handle.net/10419/102342 (2014). 144 Id. at 9 n.13. 145 Henry S. Farber & Bruce Western, Accounting for Decline of Unions in the Private Sector, 1973–1998, journAl oF lAbor reseArCH, vol. XXII, no. 3, at 479 (Summer 2001) (citing Paula Voos, Trends in Union Organizing Expendi- tures, 1953–1977, industriAl And lAbor relAtions review, 38(1): 52–63 (1984) (adjusting Voos’s numbers to 1998 dol- lars)). 146 Emin Dinlersoz, Jeremy Greenwood & Henry R. Hyatt, Who Do Unions Target? Unionization Over the Life- Cycle of U.S. Businesses, IZA Discussion Papers, no. 8416, hdl.handle.net/10419/102342 (2014), at 12 n.16 (Noting that Voos’s estimates on “real organizing expenditures per organizable worker remained relatively constant over the years she studied.”). 147 Farber & Western, supra note 145, at 479–80 (esti- mating that based on 1998 figures for amounts unions spent on organizing, unions would have to increase expen- ditures 500 percent to maintain steady union numbers.). 148 Farber & Western, supra note 145, at 479. 149 See supra note 142 (Bureau of Labor Statistics and NLRB data).

20 drastically reduce service or even pull out of a market altogether—events that will have a major impact on a business’s cash flow. Further, staffing challenges are present with on-airport businesses. The times that the businesses may have to remain open are often a challenge, especially when sched- ules are required to be adjusted based on air traffic and air service. This makes the prospect of unioniz- ing certain on-airport workforces and the potential implementation of strict work rules a point of concern for both unions and businesses. 3. Turnover Rates.—Turnover rates for nonunion- ized, low-paying jobs are high at airports just as they are in other areas.150 Having a constantly changing workforce makes it harder for unions to establish and build relationships with these employees that would lead to an agreement to allow the union to obtain authorization cards from employees. B. Attempts to Overcome the Obstacles— Union Initiatives to Utilize “Proprietor Rights” 1. Challenges to and Strategies for Unionizing Airport Employees a. Short Introduction to Union Elections and Challenges Faced by Unions Seeking to Organize Airport-Based Employees.—As previously noted, unions face unique challenges in organizing airport employees. Practically speaking, the often isolated location and unique security requirements to access the targeted places of businesses at airports make it particularly difficult for union organizers to conduct the various identification and outreach operations necessary to engage in a unionizing election cam- paign. In addition, the concessions management structure at some airports, where concession busi- nesses are run by many different employers rather than one prime or master concessionaire, signifi- cantly increases the burden of organizing each group of employees and initiating the elections process with each employer. As a result, unionization through elections is an especially burdensome pro- cess at third-party developer-managed airports. b. How a “Labor-Peace” Requirement Assists a Union in Organizing Airport-Based Employees.— Labor-peace requirements streamline the process for unionization in several ways. First, under labor- harmony ordinances, employers are often required to negotiate some form of agreement with the union. Securing the requirement to enter into a labor- harmony agreement at the airport-sponsor or concessions-developer level reduces the burdens of seeking out each individual airport employer. By default, each employer must confer some benefit to the union and consequently give up some rights it retains under federal labor laws. In some cases, the right to negotiate a labor peace agreement may even be a pre- requisite to entering into a contract with the responsi- ble public authority, which further decreases the leverage private employers have with the union by making the union a gatekeeper to the public con- tract.151 In addition, it is possible, although not com- mon, for labor-harmony ordinances to expressly dictate some terms of the required labor-harmony agreements, such as card check and neutrality provisions.152 c. Current Trends in Union Organizing at Airports.—As airport-concessions management models have changed over the past few decades, so have union-organizing methods. With the growth of third-party developer concessions models, in which airport sponsors contract with independent compa- nies to serve as developer and landlord for the concessions side of the airport,153 unions have been forced to change approaches. At airports managed by third parties, unions are no longer able to negoti- ate with one prime or master concessionaire. Rather than negotiate with each individual employer directly, unions have instead sought alternatives to reduce the administrative and logistical burdens of organizing different employers at an airport. 1. Unions Turning to Nontraditional Organizing Techniques.—Due to the practical and structural difficulties previously outlined, and in light of the historical success of unionizing public sectors that was discussed in Section IV.A.1.a, unions have increasingly sought to unionize private employees through public sector approaches over the last two decades, including legislative requirements to unionize. Public entities’ proprietary interest in property and services they own and control provides the lynchpin for union efforts to extend their influ- ence from public sector matters into the private sec- tor, where they have been losing members for years. 2. Unions Couple Employee-Rights Issues to Organizing Efforts.—To attract new members at airports, unions (UNITE HERE and Service Employ- ees International Union (SEIU) in particular) have been affirmatively taking on issues important to air- port employees. Employee-rights issues, such as 150 See Allegra Kirkland, New York Airport Workers Organize to End Two-Tier System, tHe nAtion (Nov. 26, 2013), http://www.thenation.com/article/new-york-airport- workers-organize-end-two-tier-wage-system/. 151 See, e.g., San Jose Mun. Code Ord. 25.11.1100. 152 See, e.g., Airport Commission, City and Cty. of San Francisco, Rule 12 (Nov. 2009). 153 See resourCe mAnuAl For AirPort in-terminAl ConCessions (Airport Cooperative Research Program, Report No. 54, Transportation Research Board, 2011), at ch. 1 for evolution of concessions management in the United States and ch. 8 for a discussion on various conces- sions management models.

21 “living wage” requirements and healthcare benefits, including paid sick time off, have featured promi- nently in recent union activity.154 Unions have helped spearhead many rights-focused campaigns, such as Fight for $15, the much-publicized campaign to urge fast food restaurants to pay employees a $15 base wage.155 This and other such campaigns have specifi- cally targeted airports.156 These campaigns have allowed unions to rally new public and political support. They also serve as a new recruitment method. Research suggests that unions are moving toward this strategy as the result of an adoption of the rights-based discourse used in international human rights.157 3. AIRMALLed Initiative—Union Opposition to Airport Concessionaire Model.—A particularly good case study for the most recent approaches used by unions to organize at airports is the campaign led by UNITE HERE, a labor organization representing airport concessionaire employees at Baltimore/ Washington International Thurgood Marshall Airport (BWI). BWI’s concessions program is operated by AIRMALL USA, a concessions developer. In 2011, UNITE HERE initiated a multipronged campaign to unionize BWI that focused on multiple business lev- els, including individual employers, AIRMALL, and the public officials in charge of the airport.158 At the individual employer level, UNITE Here focused on numerous businesses by recruiting individual employees and then utilizing those indi- vidual’s rights under the NLRA to engage in work- condition protests, informational demonstrations, or card-signing drives. Such unionization activities were met with opposition by management.159 At the airport-wide level, UNITE HERE implemented a thoroughly researched campaign that criticized both AIRMALL individually and the airport-concessions developer model in general.160 Through a series of white papers, UNITE HERE’s Airport Group chal- lenged the value proposition to public airport owners of the concessions developer model, criticized AIRMALL’s business performance and purported de facto public subsidization, and recommended that airports avoid “risks posed to the quality of conces- sions jobs by utilizing the prime and direct leasing concessions model.”161 In addition, UNITE HERE lobbied state officials to criticize AIRMALL’s busi- ness practices and urge improved worker benefits.162 As previously discussed, when an airport has small, widely dispersed businesses, such as may be found in a decentralized concessions program, orga- nizing employees is a challenge. It was thus a ratio- nal approach for UNITE HERE to seek to change the nature of the on-airport concessions program. An additional effect of this strategy was to pressure AIRMALL to require individual concessionaires to enter into labor-harmony agreements with UNITE HERE.163 As described by the media, UNITE HERE believed that “Airmall occupies a strategic spot between the concessions companies and the owners of the airport itself….”164 159 See Vail, supra note 158 (“Action in favor of conces- sion workers at the NLRB has been a recurring element of Unite Here’s campaign at BWI. In addition to the local McDonald’s franchise, Lavan Enterprises, the union has threatened unfair labor practice charges against a num- ber of other individual concession operators.”). 160 See UNITE HERE, Airport Group, www.airport- group.info (visited Oct. 29, 2015, and through archive.org); UNITE HERE!, You’ve Been AIRMALLed!, http://youve- beenairmalled.tumblr.com/ (visited Oct. 29, 2015). 161 Bhav Tibrewal, Airport Group, UNITE HERE, AIRMALLed: Failures of the Airport Concessions Devel- oper Model—Less Rent Generated Under the Developer Model” (2011); Bhav Tibrewal, Airport Group, UNITE HERE, AIRMALLed: Failures of the Airport Concessions Developer Model—Sales Not Enough to Justify Lower AIRMALL Rents (May 2011); Bhav Tibrewal, Airport Group, UNITE HERE, AIRMALLed: Failures of the Airport Concessions Developer Model—Poverty Jobs Hurt Workers and Taxpayers Under the Developer Model (Dec. 2011) (UNITE HERE, Dec. 2011 White Paper), at 2. 162 See Vail, supra note 158. 163 Vail, supra note 158 (“According to Abdul-Malik, a critical goal of the campaign is to hammer out a ‘labor peace’ agreement with AirMall that could set the ground- work for better labor conditions at BWI.”). 164 Vail, supra note 158. 154 See Peter Jamison, David Zahniser & Emily Alpert Reyes, L.A. Labor Leaders Seek Minimum Wage Exemp- tion for Firms with Union Workers, L.A. Times (May 27, 2015), http://www.latimes.com/local/lanow/la-me-ln-los- angeles-minimum-wage-unions-20150526-story.html; Jenny Brown, Minimum Wage Momentum–at the Airport, lAbor notes (Nov. 15, 2013), http://www.labornotes. org/2013/11/minimum-wage-momentum-airport. 155 See Fight for $15, http://www.fightfor15.org (visited Feb. 13, 2016); Matt Surrusco, New York Airport Workers Strike, Telling Management “Poverty Wages Don’t Fly,” trutH out (Apr. 26, 2015), http://www.truth-out.org/news/ item/30438-new-york-airport-workers-strike-telling- management-poverty-wages-don-t-fly. 156 See Its Our Airport, itsourairport.org (visited Feb. 13, 2016) (focusing on Sea-Tac Airport). 157 Lance Compa, Trade Unions and Human Rights, in bringing HumAn rigHts Home: A History oF HumAn rigHts in tHe united stAtes 209, 228–29 (C. Soohoo, C. Albisa & M.F. Davis eds., 2008). 158 See Bruce Vail, United Here Campaign Takes Flight at Baltimore-Washington Airport, inthesetimes.com (Dec. 20, 2013): Overall, the BWI campaign is making process at several levels…. The on-the-ground organizing effort has built support for workers at McDonald’s, Silver Diner and elsewhere, while the corporate-targeted initiative of the campaign is increasing pressure on AirMall. And the timing appears good for elected officials to make their influence felt, as well.

22 The success of the AIRMALLed campaign is said to be mixed. AIRMALL has refused to negotiate, and UNITE HERE has been forced to defend its business practices and seek other measures to address labor issues, including implementing new educational pro- grams for employees.165 AIRMALL has faced labor and political pressure at other airports for which it is seeking to bid for developer rights.166 More broadly speaking, the events at BWI have brought unioniza- tion to the forefront of discussions surrounding new and renewed contracts for concessions development around the country. The union’s efforts at BWI con- tinue, most recently with efforts seeking to termi- nate the current concessions contract.167 2. Political Initiatives: Change the Playing Field Via Sponsor-Required Contractual Provisions As previously indicated, unions are leveraging their political clout to alter the labor–management dynamics at airports.168 The last decade in particu- lar has seen this move exemplified through efforts to establish labor-harmony and other labor-related requirements as prerequisites to doing business with airport sponsors. In doing so, unions and local governments are utilizing the market-participant doctrine to effectively adjust the labor-management relationship standards set out by federal laws such as the NLRA. Under new labor-harmony ordinances, employer rights, such as the right to hold an election and to free speech, which are enshrined as the baseline for conduct in the NLRA, may be set aside. Likewise, union rights to strike are effectively and contractually abdicated as a regular course of busi- ness in exchange for easier recognition. In a similar manner, new “ground rules” for worker retention, including a 90-day firing freeze after concessionaire succession, are becoming increasingly normal. C. Context in Which Labor-Peace and Worker- Retention Programs Arise and Implications for Airport Sponsors The matters discussed herein can arise in a vari- ety of on-airport settings. 1. Concessions Unions are currently particularly focused on boost- ing membership among concession businesses. Sev- eral unions, particularly SEIU and UNITE HERE, have instituted concerted efforts to organize many airports’ concessions workers by using labor-harmony strategies. When a master concessionaire model is in place (i.e., one company operates a large portion, if not all, of the concession sites within the airport), a union will advocate for the addition of a labor- harmony requirement to the set of prerequisites needed to have a valid agreement with the airport and thereafter will set out to organize the large group of employees that work for the master concessionaire. When a more decentralized arrangement exists (e.g., a developer model or fee manager model), the desirability from a union perspective for a labor- harmony requirement may be more critical, due to the challenges it faces in organizing such situations (see Section IV.A.1.b). Therefore, it is in these situ- ations that unions have focused most of their attention in recent years. Another point with respect to concessions opera- tions is that concessions management–labor rela- tions are generally covered by the NLRA. Due to the NLRA’s location-specific standard for unioniza- tion—and because of the applicability of the NRLA from a legal standpoint—concessions employees are potentially easier to organize. 2. Ground Services Workers Ground services workers, such as under-wing personnel (baggage handlers, lavatory service personnel, contracted maintenance workers, etc.); on-aircraft personnel (such as aircraft cleaners); and passenger service personnel (such as wheelchair- assist personnel) have also been the focus of labor- harmony requirement efforts. It appears that SEIU has made the most efforts in this arena recently.169 Ground services management–labor relations are generally covered by the RLA if the subject services are provided directly to an air carrier. As such, non- unionized ground service employees and the unions seeking to represent them face greater legal chal- lenges with organizing, because organizing ground 165 See AIRMALL USA Takes Issue With UNITE HERE! Report, AirPort revenue news (May 25, 2011); Kevin Rector, BWI Concessions Company Offers New “Enrich- ment” Program for Workers, bAltimore sun (Jan. 28, 2014). 166 See Kelly Yamanouchi, Airport Workers Rally at Atlanta City Hall, AtlAntA journAl-Constitution (Sept. 29, 2015), http://airport.blog.ajc.com/2015/09/29/airport- workers-rally-at-atlanta-city-hall/. 167 See Opting Out of Concession Contract Could Cost BWI Millions, CEO Ricky Smith Says, bAltimore business journAl (Feb. 12, 2016), http://www.bizjournals.com/ baltimore/news/2016/02/12/opting-out-concession- contract-could-cost.html. 168 See also Peter Dreier, The Wage War’s Two Battle- grounds: The Ballot Box and the Board Room, HuFFington Post (May 20, 2015), http://www.huffingtonpost.com/ peter-dreier/the-wage-wars-two-battlegrounds-the-ballot- box-and-the-board-room-b-7347580.html. 169 See Filo Foods, LLC v. City of SeaTac, Case No. 89723-9 (Wash. 2015).

23 service members on a national basis is an extremely time-consuming and burdensome task. The implica- tions for the companies and the airlines that they serve are also more far-reaching and may be of more concern to both parties. 3. Air Carriers Other potential types of industries and employers that may be affected by labor-peace agreements and worker-retention programs include air carriers— both mainline and commuter. In many instances, especially with respect to smaller carriers, workers may not be unionized, and the imposition of labor- harmony requirements by an airport may have a profound impact on the carrier. This is especially true because of the applicability of the RLA, where a national impact on the carrier may result from a union-organizing initiative. Mainline carriers may be quite interested in such initiatives due to the potential cost impact they may feel, albeit derivatively. It should be noted here that the employment and contracting relationships between the public enti- ties that own airports and the private employers that manage, operate at, and provide services for those airports may vary significantly. These differ- ences may affect the ability to apply and enforce labor-harmony agreements, worker-retention pro- grams, and other similar provisions. The myriad ways in which airport ownership and control can be structured are beyond the scope of this digest. 4. Practical Impact on Airport Sponsors Airport sponsors are faced with a myriad of issues in this arena that go beyond the exposure to legal action against them. The potential impact of these issues may be substantial and may have a long-term impact on the airport. The following is a selection of the potential impacts that airport sponsors should consider. a. Impact on Concessions Econometrics.—With the nonaeronautical side of airports growing increas- ingly important in terms of airport financial stabil- ity and broader community economic health, cost inputs such as labor costs can have significant impacts on the financial viability of an airport. Because the effect of labor-peace requirements often results in increases to labor costs to or near union wage levels, the impact may be to significantly raise operating costs, with implications for the financial performance of concessionaires and, conse- quently, concession revenues to the airport.170 The introduction of a worker-retention program can similarly alter the cost savings anticipated from a change in concessionaires. Potentially restric- tive work rules may further increase costs for concessions operators. These and other labor-related factors that may result in high operational costs have the potential to “discourage[] companies from submitting concession proposals or reduce[] financial offers in proposals; concepts that have higher labor cost requirements may not be practical or feasible as an in-terminal concession.”171 Further, when labor-related factors are implemented, existing businesses, especially small and/or disadvantaged businesses, may be more profoundly impacted, which may result in fewer small or disadvantaged businesses as part of the mix of businesses at the airport. b. Impact on Costs Associated with Air Carrier Operations: Macro Airport Econometrics.—Airport carriers may also be significantly affected by higher labor costs associated with labor-harmony and worker-retention requirements, both directly and indirectly. When the labor-harmony requirements directly impact their own employees, these higher employee costs will of course affect carriers’ bottom lines. The same impact could result when con- tracted service providers are affected by labor- harmony requirements. Less directly, if a labor-harmony initiative is implemented in the concessions arena and results in reduced nonaeronautical revenues (i.e., profits), this could adversely impact not just the airport but also air carriers when those revenues are shared with them (under residual or hybrid use-and-lease agree- ments). Higher airport-related costs and lower nonaeronautical revenue may thus impact the attractiveness of particular airports, influencing air carriers’ decisions to locate to, relocate to, or invest in a particular airport. c. Impact on General Operational Climate at Airport.—Beyond labor costs, there are other considerations around unionization that may negatively impact airport operations. For example: 1. Near-Term Impact.—Union-organized demon- strations, picketing, and other potentially disruptive activity at or near airport facilities, even if legal, could negatively damage the reputation and cus- tomer relations of particular airports. Although labor-harmony, worker-retention, and other similar agreements or requirements may reduce the threat of these activities occurring, during the lead-up time before such measures are in place or in the event 171 Id. 170 ACRP Report 54, at 170 § 10.13.2.

24 that restrictions on union self-help measures expire under an agreement, the potential for these disrup- tive measures may actually increase. In addition, providing access to restricted areas may increase the threat of security risks at airports. 2. Long-Term Impact.—The ostensible benefit of incorporating labor-harmony and other measures into any agreement with airport employers is that disrup- tion at the airport will decrease. (Airports should note that the actual scope of the prohibition against labor disruptions should be carefully examined—many pro- hibitions are so narrowly defined as to have little practical impact at the airport in general.) This benefit may be offset, however, by commer- cial inefficiencies and inflexibility caused by the presence of unionized workers. For example, addi- tional job security gained by employees through unionization may also limit employers’ ability to adjust employment to meet new circumstances. Poli- cies such as worker-retention pools might also restrict employers’ ability to recruit the best talent for the position needed. The presence of unions at an airport may furthermore disincentivize certain busi- nesses from locating at the airport, making it more difficult for an airport to attract the best companies and maintain competition for the opportunity to do business at the airport. Unionization may also polit- icize commercial decision-making at the airport, threatening its financial stability. 3. Impact on Airport Control Over Which Concessionaires Do Business at Airport.—In addi- tion to the impacts previously stated, labor-peace and worker-retention requirements may also affect the selection and retention of concessionaires at an airport. Some franchises will not negotiate with unions, either as a principle or as applied to particu- lar unions. Others may not be able to incur the addi- tional costs imposed by unionization. The pool of potential concessionaires may therefore become significantly smaller. V. THE AIRPORT SPONSOR—SOURCES OF RISK AND POTENTIAL CLAIMS AGAINST THE SPONSOR Airports, whether governed directly by an airport sponsor (e.g., by an authority board) or by a munici- pality in which an airport is located, are exposed to litigation risks from a variety of sources. The major sources of potential suits are briefly outlined in the following section. A. Suits from On-Airport Businesses (Concessionaires and Airlines) The on-airport businesses that are potentially affected by labor-harmony requirements are potential sources of litigation risk. Faced with the prospect of being directed to deal with a putative union, the antic- ipated demands to be made by the union, and the restrictions and requirements that would follow by having a unionized workforce, these businesses have multiple motivations to challenge the legality of both the labor-harmony requirement itself and how such a requirement may be implemented. This group obviously includes concessionaires and airlines. Other entities that may challenge labor- harmony mandates include companies servicing under-wing aircraft and aircraft cleaning companies. Especially when a large corporation is involved, the finances of a given situation may favor the insti- tution of litigation against the airport. B. Suits from On-Airport Employees On-airport employees, or unions representing them, may sue to implement or enforce labor- harmony or worker-retention programs. These suits would focus on the loss of employee-centered rights, such as the right to have a secret-ballot election or to not join a union or on the invasion of privacy or harassment that could result from the release and use of their personal contact information. These cases could take the form of lawsuits filed in state or federal courts or complaints filed at the federal agencies that would have jurisdiction over such matters (either NLRB or NMB). There have been no such cases thus far. This is likely due to a variety of factors, not the least of which is the tremendous litigation-related costs that an individual would face in such a battle. It is worth noting, however, that organizations such as the National Right to Work Foundation exist to aid workers in such endeavors, and it may only be a matter of time until suits are filed in this arena. It is also worth noting that there have been numer- ous NLRB unfair-employment-practices actions brought against airport businesses.172 Although not directly targeting airports, these suits may neverthe- less impact airport business and operations and may ultimately lead to airport participation in such suits when a labor-peace or worker-retention agreement 172 See Au Bon Pain at Philadelphia Airport, Case 04-CA-141681, Advice Memorandum (NLRB Apr. 22, 2015); Kelly Knaub, NLRB Hits Au Bon Pain With Unfair Labor Practices Suit, LAW360 (Feb. 5, 2015), http://www. law360.com/articles/618658/nlrb-hits-au-bon-pain-with- unfair-labor-practices-suit.

25 has been put in place. Also of note is the fact that some labor-harmony agreements and worker- retention programs provide for arbitration or media- tion as a dispute-resolution mechanism, which may bar or deter employees and unions from suing to implement or enforce such provisions.173 C. Industry Groups Responding in part to the financial impact that airport-mandated labor requirements may have on their members and probably also accounting for the challenges that employees may face in bringing suits individually, industry groups such as A4A and the International Air Transport Association (IATA) may choose to challenge locally derived regulations. Indeed, A4A has formally instituted at least one suit in the United States,174 and the potential exists for more to be filed in the future. D. Legal Means and Theories Various potential claims exist against both air- ports and on-airport businesses that may enter into labor-harmony agreements. A brief summary of these claims is outlined in the following section. 1. Declaratory Judgment Actions Asserting Preemption One litigation strategy pursued by employers is to seek a declaratory judgment against a public- airport owner based on federal preemption of labor- harmony or worker-retention agreements.175 On-airport businesses have sued airports to reverse or overturn government-imposed labor provisions, including labor-harmony and worker- retention programs.176 This will particularly be the case where airport sponsors appear to be overstep- ping the sometimes blurry boundary between pro- prietary interest holder and regulator. One of the earlier cases involving labor-harmony ordinances at airports provides a good illustration of the type of suit that may be brought by an airport business against a sponsor. In Aeroground, a district court in the northern district of California sided with an employer with regard to a local action that it ruled constituted a regulation preempted under the NLRA.177 The action in dispute in Aeroground was a rule adopted by the San Francisco Airport Commission (“Airport”) known as the “Labor-Peace/Card-Check” rule (“card-check rule”). The rule’s purpose was to minimize the perceived threat of labor unrest aris- ing out of union organizing drives at the Airport.178 The rule prohibited unions from undertaking eco- nomic actions such as strikes, picketing, and boy- cotts in relation to organizing campaigns and also required certain employers operating at the Airport to enter into a “Labor-Peace/Card-Check” agreement with any union that had registered with the airport director and requested such an agreement.179 Under the rule, the labor agreement was required to pro- vide that the preference of the company’s employees with respect to union representation be determined by a card-check procedure.180 If a majority of the employees signed and returned the cards, the union would become the employee’s exclusive bargaining representative.181 Absent such an agreement, an employer had the right under the NLRA to insist that the issue of union representation be determined by a secret-ballot election conducted by NLRB.182 Therefore, the card-check rule at the Airport com- pelled employers that desired to continue doing business at the Airport to forfeit their right to have their employees engage in a secret election con- ducted by NLRB.183 In addition to mandating a 173 See, e.g., Miami-Dade Cty. Res. No. R-148-07: In the event a proposer is unable to reach an agree- ment with a labor organization regarding the terms of a labor peace agreement, the dispute between the pro- poser and the labor organization shall be resolved by expedited binding arbitration in which the decision shall be rendered within ten (10) days of the request for arbitration but no later than five days prior to the date the proposal is due. 174 See Air Transport Ass’n of America v. Port of Seattle, Case No. 2:14-cv-01733 (JCC) (W.D. Wash., filed Dec. 1, 2014). 175 See, e.g., Aeroground, Inc. v. City and County of San Francisco, 170 F. Supp. 2d 950 (N.D. Cal. 2001) (company providing cargo-handling services for airlines at an airport successfully challenged requirement by airport that it enter into a labor-peace/card-check agreement with a union; company asserted that card-check provision was preempted by the RLA and NLRA). Unions have also attempted to use preemption to fight back against legisla- tive efforts to prohibit labor-harmony-type agreements. See Southeast La. Build. & Const. Trades v. Jindal, Civil Action No. 13-370 § “K” (5) (E.D. La. May 27, 2015) (union unsuccessfully argued that state law prohibiting state governmental entities from requiring project-labor agree- ments (i.e., construction project-specific labor-harmony agreements) was preempted by the NLRA). 176 See, e.g., Filo Foods, LLC v. City of SeaTac, Case No. 89723-9 (Wash. 2015) (airline industry trade association filed suit seeking to overturn city-mandated training requirements for on-airport personnel; among the claims brought were that the locally required labor mandates were preempted by federal law covering collective bar- gaining, OSHA, and other federal laws); Aeroground, 170 F. Supp. 2d 950 (see supra, n.175 description). 177 Aeroground, 170 F. Supp. 2d 950. 178 Id. at 952. 179 Id. 180 Id. 181 Id. 182 Id. (citing 29 U.S.C. § 159(e); § 9 of the NLRA). 183 170 F. Supp. 2d at 953.

26 card-check procedure, the rule also included other provisions affecting the conduct of employers at the Airport, one of which required the labor agreement to compel the parties to submit to binding arbitra- tion over disputes about the proper interpretation of the agreement or issues arising out of the card-check process.184 Notably, the card-check rule also obli- gated employers to include in any subcontract a pro- vision requiring the subcontractor to abide by the terms of the rule.185 Aeroground, a company that provided baggage services for the Airport, challenged the rule after the International Brotherhood of Teamsters requested Aeroground to enter into a labor agreement with it under the card-check rule, arguing that the NLRA preempted the Airport’s requirement.186 The court agreed, holding that the card-check rule was pre- empted under the Garmon doctrine (which “stands for the proposition that states and municipalities may not set forth standards of conduct that are inconsistent with the substantive requirements of the NLRA.”)187 Although the Garmon case involved concerted activities and Unfair Labor Practices (ULPs) under Sections 7 and 8 of the NLRA, the Aeroground court recognized that the doctrine had also been applied to conduct related to the activities regulated by Section 9 of the NLRA, such as the pro- cess for determining union representation.188 More- over, the “court need not decide whether the conduct at issue would be deemed to be protected or prohib- ited by the NLRA, since ‘it is enough that the con- duct upon which [Aeroground’s] causes of action are based is “arguably” [protected or] prohibited.’”189 The court held that the card-check rule interfered with the substantive rights and requirements estab- lished by Section 9 of the NLRA, which provides a formal mode for employees to select and reject their bargaining representative through secret-ballot elec- tions conducted under the NLRA, and that employ- ers have the right to insist on such an election.190 Because the card-check rule required the employers operating at the airport to forego this right by agree- ing (as a condition of its permit) that union represen- tation may be determined by the card-check procedure, the court held that the rule set forth stan- dards that were “inconsistent with the substantive requirements of the NLRA by requiring conduct that conflicts with certain options for employers that are protected by the NLRA.”191 As such, Aeroground showed significant probability that the rule was pre- empted under the Garmon doctrine. Next, addressing the market-participant excep- tion, the court in Aeroground applied the Cardinal Towing test (set forth previously in Section II.C.2) and held that the Airport was not acting as a market participant in passing the rule and therefore was not exempt from preemption. Under the first ques- tion of the Cardinal Towing test—whether the chal- lenged action essentially reflects the entity’s own interest in its efficient procurement of needed goods and services, as measured by comparison with the typical behavior of private parties in similar circum- stances—the Aeroground court held that the rule was not a mechanism for the Airport to efficiently procure goods and services. To the contrary, the rule required all nonexempt employers at the Airport to enter a labor agreement with a requesting union under the threat of cutting the employer off from doing business at the Airport. Unlike other cases in which the market-participant doctrine had been used to shield governmental action from NLRA pre- emption, the rule was not an effort by the Airport to contract directly with the employers for goods and services.192 “[T]he Supreme Court made clear in Boston Harbor that its decision rested in part on the fact that the agency’s action was an attempt ‘to ensure an efficient project that would be completed as quickly and effectively as possible at the lowest cost…[and that] the challenged action…was specifi- cally tailored to one particular job.’”193 That was not the case in Aeroground. The Aeroground court reasoned that the rule oper- ated essentially as a licensing scheme that controlled the conditions under which Aeroground and other employers could contract with private third parties: In Boston Harbor, the Court recognized that “a very differ- ent case would have been presented had the city of Los Angeles purchased Taxi services from Golden State in order to transport city employees.” Similarly, a different situation 184 Id. 185 Id. 186 Id. 187 Aeroground, 170 F. Supp. 2d at 955 (citing Gould, 475 U.S. at 286). 188 Id. (citing Penn Nurses Ass’n v. Penn State Educ. Ass’n, 90 F.3d 797, 803-03 (3d Cir. 1996); NLRB v. Western Meat Packers, Inc., 350 F.2d 804, 806 (10th Cir. 1965); St. Francis Hosp. v. Ct. Board of Labor Relations, 1974 U.S. Dist. LEXIS 5990 (D. Conn. 1974)). 189 Id. (quoting and citing Penn Nurses, 90 F.3d at 802). 190 Id. (citing 29 U.S.C. § 159). 191 Id. at 956. 192 Id. at 957 (citing Boston Harbor, 507 U.S. at 232 (City agency imposed labor requirements on successful bidder as a condition for being hired by the agency to com- plete a harbor cleanup project)); Cardinal Towing, 180 F.3d at 689 (City imposed specific requirements on towing company hired by the City to perform nonconsensual tows for the police; the requirement did not apply to nonconsen- sual tows requested by private-property owners). 193 Aeroground, 170 F. Supp. 2d at 957 (citing Boston Harbor, 507 U.S. at 232).

27 would exist here if defendants purchased Aeroground’s cargo-handling services. But defendants do not assert that they contracted directly with Aeroground in this regard; rather, defendants have attempted to influence the behav- ior of certain employers at the airport ostensibly to mini- mize labor unrest. Accordingly, the card check rule cannot be characterized as an effort by the airport to procure goods and services for some discrete city project.194 The court also concluded that under the second prong of the Cardinal Towing test—whether the narrow scope of the challenged action defeats an inference that its primary goal was to encourage a general policy rather than address a specific propri- etary problem—the card-check rule was not narrow in scope. The court reasoned that the rule applied to all nonexempt employers at the Airport and had the effect of controlling the conduct of these employers in their dealings with third parties. “Such an effort is a classic example of regulation, suggesting that defendants intended the rule to encourage a general policy regarding employer–employee labor relations at the Airport.”195 The Aeroground court stated that the key issue is whether the law at issue enables the city or state entity to procure goods or services.196 The court notably went on to hold that statements in the resolution stating that the sole purpose of the rule was to protect the Airport commission and its proprietary interest in the efficient operation of the Airport and the resulting revenues from these oper- ations did not save the rule from preemption. Since San Francisco’s labor-harmony ordinance— and notwithstanding the court’s ruling in Aeroground—a number of other local governments have enacted similar ordinances as applied to airports, including elsewhere in California, Florida, New York, Pennsylvania, and Washington.197 These requirements, which also rely on the market- participant principle, are far less prescriptive. 2. Governmental Interference with Employer and Employee Rights Under 42 United States Code Section 1983 Using the preemption concepts previously out- lined, other parties have brought suits that use the federally guaranteed rights of both employees and employers as a basis to assert that the governmen- tal entity is—by requiring labor-harmony agree- ments—violating § 1983 of Title 42 of the United States Code (U.S.C.). Both employers and employees, or unions repre- senting employees, may sue a public airport owner pursuant to § 1983. Section 1983 of Title 42 of the U.S.C. provides “a private right of action against a person who, under color of state law, deprives another of rights secured by the Constitution or by federal law.”198 Accordingly, the two elements required for a § 1983 claim are that (1) the act in question occur “under color of state law,” and (2) there has been a deprivation of rights secured to the plaintiffs either by the Constitution or by federal law.199 The Supreme Court has previously held that “the interest in being free of governmental regulation of the peaceful methods of putting economic pressure upon one another is a right specifically conferred on employers and employees by the [National Labor Relations Act].” Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 112 (1989). In particular, the NLRA “creates two protected zones that must be kept free from state regulation,”200 based on the Garmon and Machinist principles of preemption previously discussed in Section II.B. “The Garmon rule creates a zone reserved for [NLRB] jurisdiction, and the Machinist rule creates a zone reserved for market freedom.”201 The market-participant doctrine, however, exempts state and local action from these zones, thus potentially undermining § 1983 claims.202 Several airport-centered cases illustrate how § 1983 claims may arise and be argued in front of a court. In Flying Eagle Espresso, Inc. v. Host International, Inc., a subtenant sued an airport concessionaire and the airport owner for violating § 1983, among other things, when the concessionaire and the airport owner pressured the subtenant into accepting a labor-harmony agreement with a union seeking to unionize its employees.203 The defendants sought to secure the subtenant’s agreement to the union’s terms after entering into a labor-harmony agreement with the concessionaire that required all employees of the concessionaire’s subtenants to be unionized members.204 The subtenant refused, argu- ing that it could not be coerced into abdicating rights afforded to it under the NLRA. The subtenant sued 194 Id. at 957–58 (citing Boston Harbor, 507 U.S. at 227). 195 Id. at 958. 196 Id. 197 Labor Peace Agreements at 15; Gale LaRoche, Wayne County Airport Authority, Trends in Labor Presumption & Labor Peace Agreements, Presentation, http://www.aci-na. org/sites/default/files/trends_in_labor_preemption_labor_ peace_agreementsfinalwovideos.pdf (undated). 198 Redondo-Borges v. U.S. Dep’t of Housing and Urban Dev., 421 F.3d 1, 7 (1st Cir. 2005) (citing Evans v. Avery, 100 F.3d 1033, 1036 (1st Cir.1996)). 199 Redondo-Borges, 421 F.3d at 7; Gomez v. Toledo, 446 U.S. 635, 640, 100 S. Ct. 1920, 64 L. Ed. 2d 572 (1980). 200 Int’l Longshore & Warehouse Union v. Port of Portland, Case No. 3:12-cv-01494-SA, 2013 U.S. Dist. LEXIS 50295 *14 (D. Or. 2013). 201 Id., citing Boston Harbor, 507 U.S. at 226–27. 202 See id. at 15–18. 203 Case No. C04-1551P, 2005 WL 2318827 (W.D. Wash. 2005) (Not reported). 204 Id. ¶¶ 2–3.

28 the concessionaire and the airport owner in federal district court after the concessionaire decided to seek another company to fill the subtenant’s space.205 During the proceedings, the concessionaire and the airport owner moved for a summary judgment on the subtenant’s claims, including its § 1983 claims. In denying the concessionaire’s and airport owner’s motion for summary judgment on the § 1983 claim, the district court held that the defendants’ insistence on requiring a labor-harmony agreement potentially amounted to a denial of federal protec- tions afforded under the NLRA.206 Responding to arguments by the union that the NLRA preempted any § 1983 claims, the court noted that the subtenant had alleged unfair union labor practice violations under Section 8(b)(4), which may be brought in federal court.207 The court also pointed to both the language of the NLRA itself and Supreme Court precedent indicating that § 1983 claims were not preempted when the government has interfered with protected labor rights; it also determined that private parties may be similarly liable when they join with government entities to interfere with fed- erally protected rights.208 Accordingly, based upon the decision in this case, the claims against the air- port appear to be on solid legal ground and therefore present an area of concern for other airport owners and operators. In another recent suit filed against an airport owner and concessionaire, a subtenant sued under § 1983 after a union refused to accept a labor- harmony agreement proposed by the subtenant that provided for a secret-ballot election pursuant to NLRB supervision, as permitted under the NLRA.209 The union instead demanded items such as card- check and neutrality provisions as part of its labor- harmony agreement, as well as such provisions as precertification right to access the work premises.210 The airport owner attempted to persuade the subtenant to accept the union’s terms for a labor- harmony agreement and ultimately held the sub- tenant to be in violation of living wage laws.211 The subtenant sued the airport and the concessionaire, arguing that the living wage did not apply to it because it was excepted under a small business exception in the ordinance, and that the airport owner’s attempts to pressure the airport into accept- ing the terms of the union’s labor-harmony agree- ment violated a federally protected right to a secret ballot under the NLRA.212 In this instance, the case never resulted in a court order. Based upon the hold- ing of Flying Eagle Espresso previously described, however, the types of claims asserted by the subten- ant should be of concern to airport owners and oper- ators. This is particularly so given the potential punitive damages that may be awarded against defendants in their individual capacities for reckless or callous indifference to federally protected rights under § 1983.213 3. Violations of Generally Applicable Aviation Statutes The ADA214 preempts any state or local law that is “related to a price, route, or service of an air car- rier.”215 Arguments have been made that the ADA’s express preemption provision may invalidate labor- harmony and worker-retention agreements if their effect on air carrier fares is not “tenuous, remote, or peripheral” in manner.216 A labor-harmony or worker-retention agreement would sufficiently affect fares if it directly or indirectly “binds the car- rier to a particular price, route or service.”217 Airlines and their advocates may rely on the ADA to seek preemption of such agreements.218 The Federal Aviation Act (FAA)219 and associated federal regulations set aviation safety standards and preempt the field of aviation safety regulations. Accordingly, to the extent that labor-harmony or worker-retention provisions encroach on the field of aviation safety, one could argue that they could be preempted under the FAA. A4A has previously 205 Id. 206 Id. 207 Id. 208 Id. 209 See Complaint for Damages and Declaratory Relief, CMC Food Services LLC v. City of Oakland, Case No. 3:14- cv-03871, Doc. 1 (N.D. Cal.) (Filed Aug. 26, 2014). 210 Id. ¶ 12. 211 Id. ¶¶ 15, 25, 27. 212 Id. ¶ 45. 213 See Smith v. Wade, 461 U.S. 30, 56 (1983). 214 49 U.S.C. § 41713(b)(1). 215 Pub. L. No. 95-504. 216 See Rowe v. N.H. Motor Transp. Ass’n, 552 U.S. 364, 371 (2008). 217 See Dilts v. Penske Logistics, LLC, 769 F.3d 637, 646 (9th Cir. 2014). 218 Existing case law indicates that a preemption argu- ment based on the ADA would not meet with success. See Air Transport Ass’n of America, Inc. v. Port of Seattle, Case No. C14-1733-JCC, Doc. 26, slip op. at 6 (W.D. Wash. 2014) (Order Denying Motion for Preliminary Injunction). 219 49 U.S.C. § 40103.

29 asserted the argument that local labor laws issued on safety grounds violate the FAA.220 E. Potentially Mitigating Factors As previously discussed in Section IV.B, the labor- harmony requirements enacted by ordinance or other municipal action (such as an airport authority mandate) are drafted in such a way that no federally protected right is directly impeded. Airport owners might accordingly be able to argue that they enforce labor-harmony requirements without the risk of depriving subtenants of federally protected rights under § 1983. At least one court, however, has already found such an argument unpersuasive.221 More broadly speaking, the more binding and direct that a local requirement to engage with union representa- tives is, the more likely it is that a subtenant or other airport business can argue that it is being illegally coerced into giving up federally guaranteed rights. Another argument against the risk of litigation caused by labor-harmony agreements is that federal aviation statutes do not bar airport owners’ ability to impose union-friendly requirements. These argu- ments are based once again on the indirect nature of labor-harmony and worker-retention agreements. For example, worker-retention agreements, while potentially impacting airlines’ profit margins, do not bind a carrier to a particular price, route, or service. Similarly, in a particular situation there may be too tenuous a connection between the field of aviation safety, which is regulated by the FAA, and labor- harmony agreements, which, on their face, are not. Arguments are often constructed using other employee-centered regulations and are factually linked to aviation-centered activity. Whether federal regulatory statutes (such as the ADA and FAA) can be successfully linked to a particular labor regula- tion will be highly context specific. To the extent that federal preemption applies, it might be argued that the NLRA or RLA preempt other federal claims, such as § 1983 claims.222 The limited precedent indicates, however, that these federal labor laws do not necessarily exclude the possibility of bringing a separate claim under § 1983.223 VI. CONCLUSION This digest has sought to identify and frame the relatively new approaches utilized by unions to estab- lish or increase union membership at airports, as well as to outline the resulting legal implications of this trend. The mechanisms for promoting unionization, particularly labor-harmony agreements and worker- retention programs, are fraught with legally compli- cated considerations regarding the interplay between local regulation and federal labor law, notably the NLRA and RLA. Airports must consider the legal risks posed by adoption of labor-harmony agreements and worker-retention programs, the boundaries of legally permissible actions that the airport can take, and the risk of litigation from airport concessionaires, subtenants, and unions. Airports have already faced litigation in this area, and more can be expected as unions seek to broaden recruitment efforts and politi- cal clout at public airports. As this digest illustrates, the airport labor arena is complex—legally, factually, and politically. The interests of the airport, the municipalities in which they operate, the employees, and the airport busi- nesses that form the backbone of airport operations do not always align. This creates a challenge for the airport owner/operator—a challenge that requires it to navigate a myriad of obstacles. In light of this con- text, airports should familiarize themselves with the intricacies of labor law as applied to airports and in particular the use of labor-harmony and similar agreements. Although this digest was intended to touch upon most relevant topics, it is, necessarily, only an introduction designed to enable airports to more effectively address the issues in this arena as a beginning point for analysis. 220 See Complaint for Injunctive and Declaratory Relief, Air Transport Ass’n of America, Inc. v. Port of Seattle, Case No. 2:14-cv-01733-JCC, Doc. 1, 7-8 (W.D. Wash.) (Filed Nov. 10, 2014). 221 See Flying Eagle Espresso, Inc. v. Host Int’l, Inc., Case No. C04-1551P, 2005 WL 2318827. 222 See Complaint for Injunctive and Declaratory Relief, Air Transport Ass’n of America, Inc. v. Port of Seattle, Case No. 2:14-cv-01733-JCC, Doc. 1, 6–7 (W.D. Wash.) (Filed Nov. 10, 2014). 223 See Air Transport Ass’n of America, Inc. v. Port of Seattle, Case No. C14-1733-JCC, Doc. 26, slip op. at 6 (W.D. Wash. 2014) (Order Denying Motion for Preliminary Injunction).

Next: APPENDIX A MATRIX OF ALLOWABLE SCOPE OF AIRPORT INVOLVEMENT IN SETTING TERMS OF LABOR-HARMONY AGREEMENTS »
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TRB's Airport Cooperative Research Program (ACRP) Legal Research Digest 31: Preemption of Worker-Retention and Labor-Peace Agreements at Airports serves as an overview of issues related to labor-harmony or labor-peace agreements for airport management personnel and other interested personnel, including airport authority board members or elected officials. These agreements generally require that, as a condition of operating on-airport property, an organization must become signatory to some form of an agreement with a labor organization. These matters are usually injected into the conduct of on-airport business by the sponsor, including certain contractual language in the agreements between the sponsor and the business. The implications of involving the airport in such matters may be dramatic, far-reaching, and fraught with legal entanglements. This is especially true with respect to labor-harmony or labor-peace agreements.

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