Southeast Louisiana Building and Construction Trades v. Jindal et al

Filing 54

ORDER & REASONS that Plaintiff's 39 Motion for Summary Judgment is DENIED; IT IS FURTHER ORDERED that Defendant and Intervenor's 40 Motion for Summary Judgment is GRANTED. Signed by Judge Stanwood R. Duval, Jr on 5/27/15. (dno)

UNITED STATES DISTRICT COURT
EASTER DISTRICT OF LOUISIANA

SOUTHEAST LOUISIANA BUILDING
AND CONSTRUCTION TRADES
COUNCIL, AFL-CIO, AN
UNINCORPORATED ASSOCIATION
V.

CIVIL ACTION

NO.: 13-370

STATE OF LOUISIANA, EX REL.
BOBBY JINDAL, IN HIS OFFICIAL
CAPACITY AS GOVERNOR OF THE
STATE OF LOUISIANA;
JAMES D. “BUDDY” CALDWELL, IN
HIS OFFICIAL CAPACITY AS
ATTORNEY GENERAL OF THE
STATE OF LOUISIANA

SECTION “K”(5)

ORDER AND REASONS
Before the Court are the Plaintiff’s Motion for Summary Judgment, R. Doc. 39, and
Defendant’s and Intervenors’ Joint Motion for Summary Judgment, R. Doc. 40. The parties’
cross-motions for summary judgment present a challenge to a Louisiana statute as being
constitutionally preempted by the National Labor Relations Act (“NLRA”), 49 Stat. 449, as
amended, 29 U.S.C. § 151 et seq., and the Supremacy Clause, U.S. Const. art. VI, cl. 2. Having
considered the motions, memoranda, exhibits, and relevant law, the Court GRANTS the
Defendant and Intervenors’ Motion for Summary Judgment and DENIES the Plaintiff’s Motion
for Summary Judgment for reasons stated herein.
I.

BACKGROUND
Plaintiff, Southeast Louisiana Building and Construction Trades Council, AFL-CIO

(“Plaintiff” or “The Council”), is an unincorporated association comprised of member labor
organizations or building and construction trade unions throughout Southeast Louisiana. (Pl.’s
1

Mot. Summ. J. 12, R. Doc. 39). The Council exists to represents its members’ interests,
providing bargaining power and advancing the union sector of the construction market. Id. at 5.
The Council’s activities include negotiation of project labor agreements (“PLA” or “PLAs”), a
type of collective bargaining agreement, on behalf of its members. Id. In 2011, the Louisiana
legislature passed Act No. 134 (“Act 134”) of the 2011 Regular Session, codified at La. R.S.
38:2225.5 (2014). On March 19, 2013, the Plaintiff was informed by the City of New Orleans
that it could not enter into a potential PLA with the Council for the construction of the New
Orleans East Hospital District A by virtue of the prohibition of such agreements as circumscribed
by Act 134. (See Def.’s & Inter. Mot. Summ. J. Ex. 3 at 5, R. Doc. 40). In turn, Plaintiff filed a
Complaint on February 27, 2013, alleging that Act 134 is unconstitutional and unenforceable
naming Bobby Jindal, Governor of Louisiana, and James D. Caldwell, Attorney General for the
state of Louisiana, as Defendants. On May 2, 2013, the Louisiana Chapter, the New OrleansBayou Chapter, and the Pelican Chapter of Associated Builders and Contractors, Inc.,
(collectively “ABC” or “Intervenors”) intervened. On December 18, 2013, the Court granted
Defendants’ motion and dismissed Governor Jindal from the action. Order, Dec. 18, 2013, R.
Doc. 23.
In its instant Motion for Summary Judgment, Plaintiff seeks a preliminary injunction
prohibiting the enforcement of Act 134 and a declaration that Act 134 is preempted by federal
law. See Pl. Mot. 1.1 Defendant and Intervenors maintain, however, in their joint Motion for

1

Plaintiff’s Complaint also alleges that Act 134 violates the Contracts Clause of the United States Constitution,
article I, § 10, clause 1. (Compl. ¶ 6, R. Doc. 1). Defendant and Intervenors argued in their Motion for Summary
Judgment that the Plaintiff was not entitled to judgment as a matter of law on that claim, R. Doc. 40, and Plaintiff
has neither offered a counter-argument in its Opposition nor presented any argument on that point in its own Motion
for Summary Judgment, see R. Docs. 39 and 50. Therefore, Plaintiff has failed to discharge its burden on summary
judgment, and “[i]f the moving party fails to discharge this burden, summary judgment must be denied—even if the
nonmoving party has not responded to the motion.” John v. State of La. Bd. of Trustees for State Colleges &
Universities, 757 F.2d 698, 708 (5th Cir. 1985)(citations omitted). Moreover, the Court may not grant summary

2

Summary Judgment, that the controlling law compels judgment in their favor as the Louisiana
statute is not preempted by the NLRA. (Def.’s & Intervenors’ Mot. Summ. J. 1, R. Doc 40).
A party is entitled to summary judgment only if “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c).
The determination of whether a genuine issue of material fact exists is a question of law that
must be decided by the court when raised by motions for summary judgment, despite the fact
that the parties agree no factual issues exist.2 “[A] party moving for summary judgment
concedes the absence of a factual issue and the truth of the nonmoving party’s allegations only
for purposes of his own motion.”3 Cross-motions for summary judgment must be considered
separately, as each movant bears the burden of establishing that no genuine issue of material fact
exists and that it is entitled to judgment as a matter of law.4 If there is no genuine issue and one
of the parties is entitled to prevail as a matter of law, the court will render summary judgment for
that party.5 Rule 56(c) of the Federal Rules of Civil Procedure mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party’s case, and on
judgment on grounds not requested by the moving party. See Baker v. Metropolitan Life Ins. Co., 364 F.3d 624, 632
(5th Cir. 2004); John Deere Co v. Am. Nat’l Bank, Stafford, 809 F.2d 1190, 1192 (5th Cir. 1987).
2
10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Fed. Prac. & Proc. § 2720 (3d ed. 1998)(“[T]he
determination whether a genuine issue concerning a material fact exists is itself a question of law that must be
decided by the court. It does not depend upon what either or both of the parties may have thought about the
matter.”); see John v. Louisiana, 757 F.2d 698, 705 (5th Cir. 1985).
3
10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Fed. Prac. & Proc. § 2720 (3d ed. 1998).
4
Shaw Constructors v. ICF Kaiser Engineers, Inc., 395 F.3d 533, 538–39 (5th Cir.2004); 10A Charles Alan Wright,
Arthur R. Miller & Mary Kay Kane, Fed. Prac. & Proc. § 2720 (3d ed. 1998)(“The court must rule on each party’s
motion [for summary judgment] on an individual and separate basis, determining for each side, whether a judgment
may be entered in accordance with the Rule 56 standard.”).
5
Shaw Constructors, 395 F.3d at 539 n. 9. 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Fed.
Prac. & Proc. Civ. § 2720 (3d ed. 1998) (“[I]f a party concedes that the facts are not disputed and makes no attempt
to file counter-affidavits in response to the opponent's cross-motion under Rule 56 . . . . [Then] there is no genuine
issue and one or the other party is entitled to prevail as a matter of law, [and] the court will render judgment.”); see
United States v. Dooley, 424 F.2d 1067, 1067-68 (5th Cir. 1970); State Farm Mut. Auto. Ins. Co. v. Eubanks, 620 F.
Supp. 17, 17 (N.D. Miss. 1985), aff'd, 785 F.2d 1346 (5th Cir. 1986).

3

which that party will bear the burden of proof at trial. Stahl v. Novartis Pharm. Corp., 283 F.3d
254, 263 (5th Cir. 2002)(citation and internal quotation marks omitted).
No party contends that genuine issues of material fact exist and each party seeks
summary judgment in its favor as a matter of law. Upon review of the competent summary
judgment evidence, including the record and any admissible exhibits attached to the parties’
motions,6 the Court finds that no genuine issue of material fact exists. 7 Thus, the Court must
determine the party in whose favor judgment should be granted as a matter of law. As
Congressional intent is the “touchstone” of preemption,8 a review of the relevant NLRA
provisions is necessary in addition to an examination of the state legislation at issue.
A.

Construction Industry under the NLRA and Project Labor Agreements

In 1935, Congress enacted the NLRA, Pub. L. No. 74–189, 49 Stat. 449, codified as
amended, 29 U.S.C. § 151 et seq., in which it articulated a national labor policy and created the
National Labor Relations Board (“NLRB”) to implement it. See N.L.R.B. v. Jones & Laughlin
Steel Corp., 301 U.S. 1, 22–24, 57 S.Ct. 615, 81 L.Ed. 893 (1937). The NLRA declared that it
was the public policy of the United States that employees shall be free from interference,
restraint, or coercion of employers of labor in self-organization for the purposes of collective
bargaining or other mutual aid.9 The NLRA is concerned primarily with establishing an

6

The Court notes that while Defendant and Intervenors objected to the inclusion of a letter from the Mayor of the
City of New Orleans to Robert Hammond, attached as an exhibit as hearsay. However, the Court finds that this
document is admissible pursuant to the business records exception to the hearsay rule, Fed. R. Evid. 803(b), and is
nevertheless offered only for purposes of demonstrating notice to the Plaintiff. Moreover, the letter was made part of
the record through Defendant’s and Intervenors’ own exhibit as attached to their Motion for Summary Judgment.
See Def.’s Mot. Ex. 3, at 5.
7
“A genuine issue of material fact exists ‘if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.’” Pylant v. Hartford Life and Accident Insurance Company, 497 F.3d 536, 538 (5th Cir. 2007)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L.Ed.2d 202 (1986)).
8
Wyeth v. Levine, 555 U.S. 555, 565, 129 S. Ct. 1187, 1194-95, 173 L. Ed. 2d 51 (2009).
9
See Hill v. State of Fla. ex rel. Watson, 325 U.S. 538, 558-59, 65 S. Ct. 1373, 1382-83, 89 L. Ed. 1782 (1945)(“Not
content with setting forth the central aim of the Wagner Act in the legislative reports, Congress in the Act itself
defined its purposes. In view of the inequality between organized employers and employees devoid of ‘full freedom
of association or actual liberty of contract,’ and of the ‘denial by employers of the right of employees to organize

4

equitable process for determining terms and conditions of employment and not with particular
substantive terms of the bargain that is struck when the parties are negotiating from relatively
equal positions. Metro. Life Ins. Co. v. Mass., 471 U.S. 724, 753-54, 105 S. Ct. 2380, 2396, 85 L.
Ed. 2d 728 (1985); see H.K. Porter Co. v. N.L.R.B., 397 U.S. 99, 108, 90 S. Ct. 821, 826 (1970).
Section 7 of the NLRA guarantees employees the right to organize and join unions, to
bargain collectively through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other mutual aid or protection. 29
U.S.C. § 157. Section 8, on the other hand, concerns unfair labor practices. See 29 U.S.C. §
158. In 1947, the Taft-Hartley Act amended the NLRA and outlawed the closed shop, curtailed
the strike and boycott, and declared that employees had the right to refrain from union activity,
Labor Management Relations Act (Taft–Hartley Act), Pub. L. No. 80–101, 61 Stat. 136 (1947),
codified as amended 29 U.S.C. § 141, et seq. See N.L.R.B. v. Gen. Motors Corp., 373 U.S. 734,
740, 83 S. Ct. 1453, 1458, 10 L. Ed. 2d 670 (1963). In 1959, the Landrum-Griffin Act further
restricted labor’s picketing and boycott activities, and regulated internal union affairs. See Pub.L.
No. 86-257, 73 Stat. 519 (1959); Nat’l Woodwork Mfrs. Ass’n v. N.L.R.B., 386 U.S. 612, 633, 87
S. Ct. 1250, 1262, 18 L. Ed. 2d 357 (1967); Marriott In-Flite Servs. v. Local 504, Air Transp.
Div., Transp. Workers of Am., AFL-CIO, 557 F.2d 295, 298 (2d Cir. 1977)(citation omitted).
One of the major aims of the 1959 Act was to limit “top down” organizing campaigns, in which

and the refusal by employers to accept the procedure of collective bargaining’, it was ‘declared to be the policy of
the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to
mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of
collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and
designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their
employment or other mutual aid or protection.’ Section 1. . . . It is an accurate summary of the Wagner Act to say
that it aimed to equalize bargaining power between industrial employees and their employers by putting federal law
behind the employees' right of association. The whole plan or scheme of the Wagner Act was to enable employees to
bargain on a fair basis, freed from ‘restraint or coercion by their employer’ through the protection given by the
federal government.”(citation omitted)).

5

unions used economic weapons to force recognition from an employer regardless of the wishes
of its employees. Connell Const. Co. v. Plumbers & Steamfitters Local Union No. 100, 421 U.S.
616, 632, 95 S. Ct. 1830, 1840, 44 L. Ed. 2d 418 (1975).
Among the amendments made were the addition of Section 8(f) and modification of
Section 8(e) of the NLRA, both of which made specific exceptions for the construction industry.
29 U.S.C. §§ 158(e) and (f); see Building & Constr. Trades Council v. Associated Builders &
Contractors of Mass./R. I., Inc., 507 U.S. 218, 230, 113 S.Ct. 1190, 122 L.Ed.2d 565 (1993)
(“Boston Harbor”). Section 8(f) specifically allows “prehire agreements,” or agreements made
between and employer and a labor organization covering employees not yet hired—only for
those employees in the construction industry. 29 U.S.C. § 158; see John Deklewa & Sons, 282
N.L.R.B. 1375, 1380-81 (1987). “These agreements may be signed before the union represents a
majority of the employer’s employees, and may continue in duration through more than one of
the employer’s jobs, even if the employer goes through a high employee turnover.” Todd v. Jim
McNeff, Inc., 667 F.2d 800, 801-02 (9th Cir.) aff'd, 459 U.S. 1013, 103 S. Ct. 370, 74 L. Ed. 2d
505 (1982) and aff'd, 461 U.S. 260, 103 S. Ct. 1753, 75 L. Ed. 2d 830 (1983). Without this
exception, forming a prehire agreement might have constituted an unfair labor practice, “for such
an agreement (naming the unions to which all employees of all contractors and subcontractors
must belong) might be seen as interfering with employees’ rights to bargain through
representatives of their own choosing, in violation of §§ 8(a)(1) and 7, see id. §§ 158(a)(1) &
157, or unreasonably discriminating against those who are not union members, in violation of §
8(a)(3)[, s]ee id. § 158(a)(3).”10

10

Associated Builders & Contractors of Massachusetts/Rhode Island, Inc. v. Massachusetts Water Res. Auth., 935
F.2d 345, 362 (1st Cir. 1991) (Breyer, J., dissenting), rev'd sub nom. Bldg. & Const. Trades Council of Metro. Dist.
v. Associated Builders & Contractors of Massachusetts/Rhode Island, Inc., 507 U.S. 218, 113 S. Ct. 1190, 122 L.
Ed. 2d 565 (1993)(“Boston Harbor”); see also N.L.R.B. v. Haberman Const. Co., 618 F.2d 288, 304-05 (5th Cir.

6

In enacting this exception, Congress recognized that the use of prehire agreements in the
construction industry antedated the federal labor legislation proscribing them. See S.Rep. 86-187
at 28, 55-56 (1959), reprinted in 1959 U.S.C.C.A.N. 2318, 2344; H.R. Rep. No. 86-741 at 19-20
(1959), reprinted in 1959 U.S.C.C.A.N. 2318, 2441–2442; Associated Builders & Contractors,
935 F.2d at 364 (Breyer, J., dissenting). As a practical matter, prehire agreements addressed
unique circumstances in the construction industry, including short-term employment, the
employer’s need to know labor costs in advance of a project before making an accurate bid, and
the employer’s need for a steady supply of labor for referral. See H.R. Rep. No. 86-741 at 19
(1959), 1 Leg. Hist. 777; reprinted in 1959 U.S.C.C.A.N., 2424, 2442. Despite the concern over
employees’ right to select their bargaining representatives,11 the Senate Report noted that
employees would not be employed for a long enough period of time to formally elect a
bargaining representative. N.L.R.B. v. Local Union No. 103, Int'l Ass'n of Bridge, Structural &
Ornamental Iron Workers, AFL-CIO, 434 U.S. 335, 349, 98 S. Ct. 651, 658, 54 L. Ed. 2d 586
(1978) (“Representation elections in a large segment of the industry [were] not feasible to
demonstrate [] majority status due to the short periods of actual employment by specific
employers. S. Rep. 86-187 at 55 (1959), 1 Leg. Hist. 541–542; History 341–342, U.S. Code
Cong. & Admin. News 1959, pp. 2318, 2373”)). Thus, in Section 8(f) Congress expressly
provided that such agreements “could contain 7-day union-security clauses, exclusive hiring-hall
referral procedures, and training and seniority requirements as hiring priorities.” Deklewa, 282
N.L.R.B. at 1380-81. Mindful of employees’ free choice to select bargaining representatives,

1980) rev’d on other grounds en banc, 641 F.2d 351 (5th Cir. 1981)(stating that it was an unfair labor practice for an
employer to enter into this type of agreement with the union before it had attained majority status).
11
See Local Union No. 103, 434 U.S. at 349 (“Privileging unions and employers to execute and observe prehire
agreements in an effort to accommodate the special circumstances in the construction industry may have greatly
convenienced unions and employers, but in no sense can it be portrayed as an expression of the employees'
organizational wishes.”).

7

Congress also provided in Section 8(f) that employees may demand an election pursuant to
Section 9(c) or 9(e) be held despite the existence of a prehire agreement. Deklewa, 282 NLRB at
1380-81.
In addition, in 1959 Congress added the “construction industry proviso” to Section 8(e).
28 U.S.C. § 158(e); see 1 Bureau of National Affairs, The Labor Reform Law LaborManagement Reporting and Disclosure Act of 1959 93 (1959). Section 8(e) generally prohibits
“hot cargo” agreements or agreements between a union and secondary employer whereby the
secondary employer agrees to help the union (engaged in a dispute with a primary employer) by
refusing to do business with that primary employer. See Woelke & Romero Framing, Inc. v.
N.L.R.B., 456 U.S. 645, 654-55, 102 S. Ct. 2071, 72 L. Ed. 2d 398 (1982). The construction
industry proviso specifically exempted employers in the construction industry so that its
prohibition of hot-cargo clauses would not prevent parties in the construction industry from
entering into prehire agreements, which traditionally included a subcontracting restriction
“requiring the general contractor to award bids only to subcontractors who would sign the
prehire agreement.” Associated Builders and Contractors, 935 F.2d 345, 363-64 (1st Cir. 1991)
(citing 105 Cong. Rec. S16, 414 (daily ed. September 3, 1959) (statements of Sen. Kennedy);
105 Cong.Rec. S16,414 (daily ed. September 3, 1959)(statements of Rep. Thompson)). The
provision specifically addressed the problem of picketing a single non-union subcontractor on a
multi-employer building project, and the close relationship between contractors and
subcontractors at the jobsite. Connell Const. Co., 421 U.S. at 629-30. Thus Section 8(e) permits
a general contractor’s prehire agreement to require a contractor not to hire other contractors

8

performing work on that particular project site unless they agree to become bound by the terms
of that agreement.12
The Plaintiff contends that the NLRA preempts Act 134 because the Act prohibits the use
of a project labor agreement, a Section 8(f) prehire agreement, on public construction projects.
The Supreme Court has determined that a project labor agreement or PLA is a “valid labor
contract” under Sections 8(e) and 8(f) of the NLRA. Boston Harbor, 507 U.S. at 230, 113 S. Ct.
at 1197. A PLA is a type of prehire agreement that applies to a specific construction project and
lasts for the duration of the project. Cong. Res. Service, Project Labor Agreements, 1.
“Subcontracting restrictions and prehire agreements are typically combined with hiring hall and
grievance arbitration arrangements in a project labor agreement.”13 “The primary advantage of
this type of agreement, as opposed to any other prehire agreement, is that a PLA provides for
grievance resolution procedures that last for the duration of the project and do not delay the
project.”14
PLAs generally apply to all work performed under a specific contract or project or at a
specific geographic location. Under the typical terms of a PLA, the PLA will (1) require an
employer recognize the signatory union or group of unions as the exclusive collective bargaining
agent for all covered employees; (2) supersede all other collective bargaining agreements; (3)
prohibit strikes and lockouts; (4) require hiring through union referral systems or union hiring
halls; (5) require all contractors and subcontractors to become signatory to the agreement, which

12

Boston Harbor, 507 U.S. at 230 (citing Woelke, 456 U.S. at 657, 102 S.Ct. at 2078). Although this type of
subcontracting agreement could exert “top down” pressure on employees, Congress decided to accept such pressure
and enacted this exception ensuring that these exclusive subcontracting agreements would remain lawful as they
were part of the pattern of collective bargaining in the construction industry. Woelke, 546 U.S. at 657 and 664.
13

Henry Perritt, Keeping the Government Out of the Way: Project Labor Agreements Under the Supreme Court’s
Boston Harbor Decision, 12 Lab. Law. 69, 73 (1996).
14
Jolie Siegel, Project Labor Agreements and Competitive Bidding Statute, 3 U. Pa. J. Lab. & Emp. L. 295, 296
(2001).

9

in turn, may require contractors to use the unions’ apprenticeship programs and to contribute to
union health, pension, and vacation funds; (6) establish uniform work rules covering overtime,
working hours, and dispute resolution; and (7) prescribe craft wages. See U.S. Congressional
Research Service, Project Labor Agreements, 7-5700, Gerald Mayer, July 1, 2010, at 4; see
Johnson v. Rancho Santiago Cnty. Coll. Dist., 623 F.3d 1011, 1017 (9th Cir. 2010). Often, the
requirement that a winning bidder on a project agree to a PLA is incorporated directly into the
bid specifications. See Associated Gen. Contractors v. Metro. Water Dist. of S. Cal., 159 F.3d
1178, 1180 (9th Cir. 1988); Michigan Bldg. & Constr. Trades Council, AFL-CIO v. Snyder, No.
12-13567, 2012 WL 6155964, at *1 (E.D. Mich. Nov. 15, 2012) rev'd sub nom. Michigan Bldg.
& Constr. Trades Council v. Snyder, 729 F.3d 572 (6th Cir. 2013). Taken together, as one court
has opined, PLAs “effectively unionize[] an entire construction project because all union and
non-union contractors must comply with certain union protocol and procedure.” Michigan Bldg.
& Constr. Trades Council, AFL-CIO v. Snyder, 846 F. Supp. 2d 766, 772 (E.D. Mich.
2012)(citing Cent. Iowa Bldg. and Constr. Trades Council, AFL-CIO v. Branstad, No. 11—
00202, 2011 WL 4004652 at *1 (S.D.Iowa, Sept. 7, 2011)); see John T. Callahan & Sons, Inc. v.
City of Malden, 713 N.E.2d 955, 960-61 n.9 (Mass. 1999).
In contracting for construction projects, a PLA may come into effect in a number of
different scenarios. See Snyder, 846 F. Supp. 2d at 772. A union building trades council may
negotiate and enter into a PLA with a construction manager acting as an agent for the ownerdeveloper or directly with the owner-developer; the owner-developer then incorporates a
requirement into bid specifications that successful bidders agree to enter or adhere to a PLA; the
trades council could also enter into a PLA with a series of projects over a fixed period of time; or

10

a general contractor could independently negotiate a PLA with trades councils either before or
after being awarded the work. Id.
B.

Act 134

In 2011, the Louisiana legislature enacted Act No. 134 of the 2011 Regular Session (“Act
134” or “the Act”), adding a new provision to Louisiana’s pre-existing Public Bid Law, 15 now
codified as Louisiana Revised Statute § 38:2225.5 (2014). Act 134, as enacted, applies to each
“public entity,” which as defined in the statute, includes the State of Louisiana or any agency,
board, commission, department, public corporation of the state, or any political subdivision of
the state.16 The Act creates restrictions for each public entity, “when engaged in procuring
products or services or letting contracts for construction, manufacture, or operation of public
works paid for in whole or in part by state or local funds” or when overseeing the same.17
Specifically, Act 134 prohibits certain conditions from being included in “bid specifications,
project agreements, and other controlling documents, entered into, required, or subject to

15

Generally, Louisiana’s Public Bid Law mandates that public entities may not waive any requirements of or take
any action inconsistent with the public bid law. See La. R.S. § 38:2212(B)(1)(“The provisions and requirements of
this Section and those stated in the bidding documents shall not be waived by any entity.”); Concrete Busters of
Louisiana, Inc. v. Bd. of Comm'rs of the Port of New Orleans, 2010-1172 (La. App. 4 Cir. 2/2/11), 69 So. 3d 484,
487 (La. Ct. App. 2011)(citing Broadmoor, L.L.C. v. Ernest N. Morial New Orleans Exhibition Hall Authority, 04–
0211 (La. 3/18/04), 867 So.2d 651, 656). “Louisiana's Public Bid Law, set forth in La. R.S. 38:221[1], et seq., is a
prohibitory law founded on public policy.” Hamp's Const., L.L.C. v. City of New Orleans, 2005-0489 (La. 2/22/06),
924 So. 2d 104, 107 (citing Broadmoor, 867 So. 2d at 656; La. Associated Gen. Contr., Inc. v. Calcasieu Parish
School Bd., 586 So.2d 1354, 1359 (La.1991)). Through the Public Bid Law, the Louisiana “legislature has
specifically prescribed the conditions upon which it will permit public work to be done on its behalf or on behalf of
its political subdivision.” Hamp’s Const., 924 So. 2d at 107.
16
La. R.S. § 38:2211 (2014) (“‘Public entity’ means and includes the state of Louisiana, or any agency, board,
commission, department, or public corporation of the state, created by the constitution or statute or pursuant thereto,
or any political subdivision of the state, including but not limited to any political subdivision as defined in Article VI
Section 44 of the Constitution of Louisiana, and any public housing authority, public school board, or any public
officer whether or not an officer of a public corporation or political subdivision. “Public entity” shall not include a
public body or officer where the particular transaction of the public body or officer is governed by the provisions of
the model procurement code.”).
17
Id. at (A) (“Except as provided in Subsection E of this Section or as required by federal law, each public entity,
when engaged in procuring products or services or letting contracts for construction, manufacture, or operation of
public works paid for in whole or in part by state or local funds, or when overseeing or administering such
procurement, construction, manufacture, or operation, shall ensure that bid specifications, project agreements, and
other controlling documents, entered into, required, or subject to approval by the public entity do not . . . .”).

11

approval by the public entity.” La. R.S. 38:2225.5(A). The Act provides, in relevant part, that
these documents may not:
(1) Require bidders, offerors, contractors, subcontractors, or operators to:
(a) Enter into or adhere to agreements with one or more labor
organizations on the same or related projects.
(b) Enter into any agreement whereby the public entity is required to
remain neutral toward any labor organization.
(c) Pay predetermined or prevailing wages.
(2) Discriminate against bidders, offerors, contractors, subcontractors, or
operators for refusing to:
(a) Become or remain signatories or otherwise adhere to agreements with
one or more labor organizations on the same or related projects.
(b) Enter into any agreement whereby the public entity is required to
remain neutral toward any labor organization.
(3) Require any bidders, offerors, contractors, subcontractors, or operators to enter
into, adhere to, or enforce any agreement that requires any employee as a
condition of employment to:
(a) Become a member of or become affiliated with a labor organization.
(b) Pay dues or fees to a labor organization over the employee's objection.

Id. at (A). The prohibited conditions in Section (A) along with Section (B) effectively prohibit
those conditions typically included in PLAs, as discussed above,18 on any public works project
upon which public funds are expended or any construction project on which the public entity
provides financial assistance, issues a grant, or enters into a cooperative agreement.19 The Act
also prohibits any inclusion of a provision that a bidder, offeror, contractor, subcontractor, or
operator be required to (or be discriminated against for refusing to) enter into any agreement
requiring the public entity remain neutral toward any labor organization. To enforce the Act,
interested parties—those who will be involved in the negotiation of any construction project or a

18

See also Pl.’s Mem., R. Doc. 39 at 5; Pl.’s Undisputed Material Facts, R. Doc. 39-4 at ¶18). These common
provisions include union hiring hall provisions, predetermined or prevailing wages, and the requirement that all
contractors become signatories to the PLA. To the extent the Plaintiff contends that the Act prohibits PLAs in
general, the Court will consider the separately listed conditions in Section (A) as part and parcel of the argument.
19
Id. at (A) and (B)(“No public entity shall provide financial assistance, issue a grant, or enter into a cooperative
agreement for any project a condition of which requires that bid specifications, project agreements, or other
controlling documents pertaining to the financial assistance, grant, or cooperative agreement contain any of the
elements prohibited in Subsection A of this Section.”)

12

taxpayer—may challenge a bid specification or other controlling document that violates the
provisions of the section.20 The legislature provided limits of the Act, however, stating that
“[n]othing herein shall prohibit contractors or subcontractors from voluntarily entering into
agreements described in this Section.” Id. at (C). Further, the Act does not apply to any “publicprivate agreement” for a construction project where the private entity has the right to control its
labor relations with its own employees as permitted by the NLRA.21
III.

DISCUSSION
Plaintiff argues that the NLRA preempts Act 134 because the Act either directly or

indirectly regulates NLRA-protected collective bargaining rights of employers and public and
private project owners in all publicly financed construction or other operations. Plaintiff argues
that the Act is regulatory as it applies to all construction projects funded in whole or part by the
state and all public entities. Plaintiff asserts that the organization, on behalf of its employees, has
a right under Section 7 of the NLRA to collectively bargain for project labor agreements, which
are specifically authorized under Section 8 of the NLRA, with the State. Plaintiff argues that the
Act regulates this protected activity by prohibiting public entities from entering (or deciding
whether to enter) into PLAs either through incorporation in bid specifications or controlling
documents on all public works projects (or related project) paid for in whole or in part by public
funds or on any project on which the public entity provides financial assistance, issues grants, or

20

Id. at (D)(“Any interested party, which shall include a bidder, offeror, contractor, subcontractor, operator, or
taxpayer, shall have standing to challenge any bid specification, project agreement, neutrality agreement, controlling
document, grant, or cooperative agreement which violates the provisions of this Section. Furthermore, such party is
authorized to and shall receive injunctive relief to prevent violations of this Section upon a proper showing under the
standards of the Code of Civil Procedure.”).
21
Id. at (E)(4) (“The provisions of this Section shall not apply to the following: . . . (4) Any public-private
agreement for any construction or infrastructure project in which the private entity, as a condition of its investment
or partnership with the public entity, requires that the private entity have the right to control its labor relations policy
with its own employees and the employees of its contractors and subcontractors in any manner permitted by the
National Labor Relations Act, 29 U.S.C. 151 et seq.”).

13

enters into cooperative agreements. Plaintiff also contends that the Act, in section (A)(3)(c),
prohibits provisions requiring the use of union hiring halls, as employees must register with a
union hiring hall or “affiliate” with the sponsoring union “and, if required by the controlling
bargaining agreement, pay referral fees to the union.” (Pl.’s Mem. Supp. Mot. Summ. J., 9).
Further, Plaintiff argues that Section (A)(2)(b) prohibits bidders, offerors, contractors, and
subcontractors from entering into neutrality agreements obligating a public entity remain neutral
to a labor union facilitating voluntary recognition of a collective bargaining agent, and voluntary
recognition is undisputedly lawful. Finally, Plaintiff argues that the enforcement provision in
Section (D) further evidences its regulatory nature. Thus, Plaintiff avers that the Act interferes
with federal labor policy and upsets a balance of power established by the NLRA by adopting a
statute prohibiting PLAs and other collective bargaining relationships.
Defendant and Intervenors argue, however, that Act 134 is not preempted by the NLRA
as it is a narrow, proprietary law with the purpose of efficiently procuring construction services.
Defendant and Intervenors argue the law is not regulating any protected activity under the NLRA
or interfering with the balance of power established by the NLRA. They state that the legislation
was passed to foster open competition in the competitive bidding process for state-funded
construction projects as part of the Public Bid law, narrowly applies only to those projects
funded by the state, and is written to protect employee rights under the NLRA. Plaintiff
overstates the reach of the legislation, they argue, as Act 134 does not prohibit the use of PLAs
between private contractors and subcontractors on public projects but only prohibits public
entities from entering into PLAs on construction projects. They assert that Act 134 similarly
does not prohibit private parties from entering into any other bargaining agreement or the use of
hiring halls, as the Act makes no mention of union hiring halls but simply reinforces existing

14

Louisiana’s Right to Work Law, Louisiana Revised Statutes section 23:981, et seq., and leaves
the labor organizations are free to negotiate neutrality agreements with the State. Thus,
Defendant and Intervenors argue the Act is not preempted because law has no effect outside of
contracts with the State. Further, the Act is not preempted, they argue, because it does not
regulate activities that are protected by the NLRA; they assert that labor organizations, as
opposed to employees, have no right to negotiate PLAs under Section 7 of the NLRA with the
State.
A.

NLRA Preemption

It is a fundamental principle of the Constitution that the Supremacy Clause gives
Congress the power to preempt state law. Crosby v. National Foreign Trade Council, 530 U.S.
363, 372, 120 S. Ct. 2288, 147 L.Ed.2d 352 (2000); see U.S. Const. art. VI, cl. 2. “In deciding
whether a federal law pre-empts a state statute, our task is to ascertain Congress’ intent in
enacting the federal statute at issue,” Metro. Life, 471 U.S. at 738, as Congress’ intent is “the
ultimate touchstone in every pre-emption case,” Wyeth, 555 U.S. at 565 (citation and internal
quotation marks omitted). In addition, in all preemption cases “and particularly in those in
which Congress has legislated,” the court must “start with the assumption that the historic police
powers of the States were not to be superseded by the Federal Act unless that was the clear and
manifest purpose of Congress.” Wyeth, 555 U.S. at 565 (citations and internal quotation marks
omitted).
The topic of preemption in federal labor law “presents one of the densest thickets in all of
labor and employment law,” as one commentator has opined and has further declared that “the
Supreme Court has decided more cases touching on federal preemption than on any other legal

15

issue in the field of collective bargaining.”22 The NLRA contains no express statutory preemption provision, Metro Life, 471 U.S. 724, 747, nor otherwise indicates a congressional intent
to usurp the entire field of labor-management relations, Brown v. Hotel & Rest. Employees &
Bartenders Int'l Union Local 54, 468 U.S. 491, 501-02, 104 S. Ct. 3179, 3185, 82 L. Ed. 2d 373
(1984). The Court has thus noted that while “in passing the NLRA Congress largely displaced
state regulation of industrial relations,” Wis. Dep't of Indus., Labor & Human Relations v. Gould
Inc., 475 U.S. 282, 286, 106 S. Ct. 1057, 1061, 89 L. Ed. 2d 223 (1986), the Court could not
“declare pre-empted all local regulation that touches or concerns in any way the complex
interrelationships between employees, employers, and unions [as] much of this is left to the
States.” Motor Coach Employees v. Lockridge, 403 U.S. 274, 289, 91 S.Ct. 1909, 1919, 29
L.Ed.2d 473 (1971)(emphasis added). Although “controversy continues over the Act’s preemptive scope,”23 the Supreme Court has articulated two distinct NLRA pre-emption principles:
Garmon preemption and Machinists preemption, Metro Life, 471 U.S. at 748.
The first preemption principle, Garmon preemption, precludes state interference with the
NLRB’s primary jurisdiction to determine in the first instance what kind of conduct is either
prohibited or protected by the NLRA. San Diego Building Trades Council v. Garmon, 359 U.S.
236, 79 S. Ct. 773, 3 L. Ed. 2d 775. Under Garmon, the NLRA preempts state action where the
regulated activity is protected, prohibited, or arguably protected under Sections 7 and 8 and thus
would be within the primary jurisdiction of the NLRB. Id. at 244. When it is not clearly
protected but it is “arguably” protected, an inflexible application of preemption is avoided. Id. at
22

Stephen F. Befort & Bryan N. Smith, At the Cutting Edge of Labor Law Preemption: A Critique of Chamber of
Commerce v. Lockyer, 20 Lab. Law. 107, 107 (2004).
23
Gould, 475 U.S. at 286; see Golden State Transit Corp. v. City of Los Angeles, 475 U.S. 608, 623, 106 S. Ct.
1395, 1403, 89 L.Ed.2d 616 (1986)(623)(Rehnquist, J., dissenting) (“The entire body of this Court’s labor law preemption doctrine has been built on a series of implications as to congressional intent in the face of congressional
silence, so that we now have an elaborate pre-emption doctrine traceable not to any expression of Congress, but only
to statements by this Court in its previous opinions of what Congress must have intended.”)

16

245. Courts consider whether there is a significant state interest in protecting its citizens from
the conduct or whether state jurisdiction would entail little risk of interfering with the uniform
labor policy. See Gould, 475 U.S. at 291 (preemption should not be inferred where policies
address conduct of peripheral concern to the NLRA or deeply rooted local interests); Sears,
Roebuck & Co. v. San Diego Cnty. Dist. Council of Carpenters, 436 U.S. 180, 180, 98 S. Ct.
1745, 1749, 56 L. Ed. 2d 209 (1978)(finding deeply local interests to be at stake such that
Garmon preemption was inappropriate). A state law conflicts with the NLRA’s provisions or
underlying goals and policies if it stands as an obstacle to the accomplishment of its purposes.
Hotel Employees, 468 U.S. at 501 (internal quotation marks and citation omitted).
The second preemption principle, Machinists preemption, forbids the states from
regulating conduct that Congress intended to be unregulated. Machinists v. Wis. Emp’t Relations
Comm’n, 27 U.S. 132, 140 (1976); Metro Life., 471 U.S. at 749. Even if the conduct is not
protected or prohibited by the NLRA, the act may be preempted if it is within a zone that
Congress intended to leave unregulated or left to the “free play of economic forces.” Machinists;
27 U.S. at 140. “Machinists pre-emption is based on the premise that ‘Congress struck a balance
of protection, prohibition, and laissez-faire in respect to union organization, collective
bargaining, and labor disputes.’” Chamber of Commerce of U.S. v. Brown, 554 U.S. 60, 65, 128
S. Ct. 2408, 2412, 171 L. Ed. 2d 264 (2008)(quoting Machinists, 427 U.S. at 140, n. 4)(internal
quotation marks omitted).
However, preemption only occurs when a state regulates in a protected zone under
Garmon or Machinists. See Boston Harbor, 507 U.S. at 226-27; Alameda Newspapers, Inc. v.
City of Oakland, 95 F.3d 1406, 1413 (9th Cir. 1996) (“A prerequisite to pre-emption [under the
NLRA] is a finding that the state or local action in question constitutes regulation of labor

17

relations between employers and employees.”). “In general, Congress intends to preempt only
state regulation, and not actions a state takes as a market participant.” Johnson, 623 F.3d at 1022
(citation omitted); see Cardinal Towing & Auto Repair, Inc., v. City of Bedford, Tex., 180 F.3d
686, 691 (5th Cir. 1999).
B. The Market Participant Doctrine: Exception to Preemption
Three Supreme Court cases primarily define the scope of the “market participant”
exception to preemption. In Gould, the Court addressed a Wisconsin “debarment” statute that
forbade state procurement agents from using state funds to purchase products manufactured or
sold by “labor law violators,” or those employers who had violated the NLRA three times within
a five-year period. 475 U.S. 282. Wisconsin conceded that it did not have the power to bar its
residents from doing business with repeated violators of the NLRA but argued that the statute
was not unlawful because the statute merely regulated the spending power of its procurement
officers. Id. at 287. The Court held this to be a “distinction without a difference” because the
statute plainly served as a means of enforcing the NLRA. Id. By “flatly prohibiting state
purchases from repeat labor law violators” the state was not functioning as a private purchaser of
services and for “all practical purposes, Wisconsin’s debarment scheme [was] tantamount to
regulation.” Id. at 289.
The Gould court discussed the qualitative difference with state action as compared to
private purchasers, noting that a private purchaser could boycott labor law violators without
offending the NLRA. “The Act treats state action differently from private action not merely
because they frequently take different forms,” the Court noted, but also because “States simply
are different from private parties and have a different role to play.” Id. at 290. Yet the Court

18

emphasized that the purpose and effect of the law in that case did not fall within any exception to
the rule and found the Wisconsin statute preempted under Garmon. Id. at 291.
The Court answered the open question of whether a State may act without offending the
preemption principles of the NLRA when it acts as a proprietor rather than a regulator in Boston
Harbor, 507 U.S. 218, 113 S.Ct. 1190, 122 L.Ed.2d 565 (1993). In Boston Harbor, the Court
addressed the validity of a project labor agreement adopted by the Massachusetts Water
Resources Authority (MWRA) and entered into by its project manager, Kaiser Engineers, Inc.,
and Building and Construction Trades Council and affiliated organizations (BCTC). Id. at 221.
The Association of Builders and Contractors challenged the action arguing that it was preempted
by the NLRA. Id. The PLA in Boston Harbor pertained to a $6.1 billion project to clean up the
Boston Harbor by building treatment facilities over which MWRA had the primary responsibility
to fund, decide contract awards, supervise, and eventually own. Id. at 221.
The Court found that the PLA was a valid labor contract under Sections 8(f) and 8(e) of
the NLRA, and that those provisions also applied to the State and its political subdivision, the
MWRA. Id. at 231. Though the NLRA excludes the State from the definition of an “employer,”
the Court found that Congress did not intend to distinguish between a private purchaser or a
public entity acting in the construction industry in allowing the collective bargaining agreements
under Sections 8(f) and 8(e); absent express intent to disallow states from managing its own
property and pursuing proprietary interests, and where analogous private conduct would be
permitted, the Court refrained from inferring a restriction on the states’ ability to enter into
prehire agreements. Id. at 231–232.
In making a distinction between state as regulator or state as proprietor, the Court
revisited the analogy to a private actor in Gould. The Boston Harbor Court agreed with the

19

Gould court that states play a qualitatively different role than private persons—when the state
acts as a regulator. Id. at 229. The distinction between a state and a private actor is “far less
significant when the State acts as a market participant with no interest in setting policy.” Id. at
229. Thus, the Court in Boston Harbor emphasized that the statute was regulatory in Gould
because the statute at issue “addressed employer conduct unrelated to the employer’s
performance of contractual obligations to the State, and because the State’s reason for such
conduct was to deter NLRA violations.” Id. at 228–29.
As applied in that case, the Court found the MWRA was acting as a proprietor in entering
into a PLA “to ensure that the project would be completed quickly and effectively at lowest
cost.” Id. at 232. Moreover, the challenged action was “tailored to one particular job,” so there
was no reason to distinguish the incentives there from those elsewhere in construction industry
which are legitimate. Id. at 232 (citing Woelke, 546 U.S. at 662, and n.14).
In the most recent Supreme Court announcement on NLRA preemption and the market
participant exception, the Supreme Court found that a California state statute was not subject to
the market participant exception and was subject to NLRA preemption under Machinists.
Brown, 554 U.S. 60, 120 S.Ct. 2408, 171 L.Ed.2d 264 (2008). The statute at issue in Brown
prohibited certain employers that receive state funds—whether by reimbursement, grant,
contract, use of property, or pursuant to a state program—from using such funds to assist,
promote, or deter union organizing. Id. at 63. The preamble of the statute candidly
acknowledged that it was the state of California’s policy not to interfere with an employee’s
choice about whether to join a union and thus it would not subsidize efforts by employers to
either promote or deter unionizing. Id. The Court found it “beyond dispute” that the state was
regulating as it was neither specifically tailored to one particular job nor a legitimate response to

20

state procurement restraints or to local economic needs. Id. at 70. The legislative purpose was not
“the efficient procurement of goods and services” but rather, as acknowledged in the preamble,
“furtherance of a labor policy.” Id. The purpose was further illustrated by the fact that the statute
was a negative restriction on employer speech about unionization as opposed to an affirmative
requirement about the use of state funds for the relevant grant program and the fact that it was
not applied uniformly, exempting certain employer advocacy activities that promoted unions. Id.
at 70–71. The Court held that the NLRA preempted the statute under Machinists as it interfered
and regulated the employer’s non-coercive speech about unionization, an area Congress left
unregulated. Id. at 66.
C.

Lower Courts’ Application of the Market Participant Doctrine

In the wake of Boston Harbor, the lower courts applying the market participant exception
have examined critical factors that evidence proprietary conduct rather than regulatory conduct.
With facts closely resembling that of Boston Harbor, courts have commonly shielded contract
specifications or contracts over projects with defined temporal or project limits from preemption
or those contracts based on “ad hoc” decisions.24 On the other hand, where the facts resemble
those of Gould, courts have found preemption when government entities seek to advance general
societal goals rather than narrow proprietary interests (actions serving the government’s own

24

See, e.g., Colfax v. Illinois State Toll Highway Authority, 79 F.3d 631, 634 (7th Cir. 1996) (requirement that
contractor adhere to “area-wide” labor agreement was not preempted by NLRA); Johnson , 623 F.3d at 1017 (9th
Cir.2010) (state agency entering into Project Stabilization Agreement covering many individual projects but limited
to time period of three years was market participation and not subject to NLRA preemption); Hotel Employees &
Restaurant Employers Union, Local 57 v. Sage Hospitality Res., LLC, 390 F.3d 206 (3rd Cir. 2004) (upholding city
requirement of a neutrality agreement as a condition of tax financing); Bldg. & Constr. Trades Dep't v. Allbaugh,
295 F.3d 28, 35 (D.C.Cir.2002); N. Ill. Chapter of Associated Builders & Contractors, Inc. v. Lavin, 431 F.3d 1004,
1005 (7th Cir. 2005) (state grant subsidizing of renewable-fuel plants conditioned on entering into PLA was
proprietary and not subject to NLRA preemption); Bldg. Industry Electrical Contractors Ass’n v. City of New York,
678 F.3d 184 (2d Cir. 2012) (several PLAs entered into by the City of New York, indistinguishable from Boston
Harbor PLA, were proprietary and thus not preempted by NLRA); Branstad, WL 4004652 at *1(finding executive
order prohibiting use of PLAs was proprietary and not preempted by the NLRA).

21

needs) through the use of their spending and contracting power.25 Gould and Boston Harbor
reflect “polar outcomes despite the fact that both involved an exercise of spending or
procurement power.” Sage Hospitality, 390 F.3d at 214. The pivotal difference, as the Third
Circuit stated, is that in Gould, the state “deployed its spending authority to achieve a goal far
broader than merely protecting or fostering its own investment or proprietary interest,” while in
Boston Harbor “the public agency limited its spending conditions to the protection of its
investment or proprietary interest.” Id.
The Fifth Circuit in Cardinal Towing succinctly distilled these factors, based on the
reasoning of Boston Harbor, in a two-part test since cited with approval by other Circuit courts.26
The key, the Fifth Circuit stated, is to focus on two questions: (1) whether the challenged action
essentially reflect 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

25

See, e.g., Chamber of Commerce of United States v. Reich, 74 F.3d 1322, 1339 (D.C.Cir. 1996) (executive order
barring federal government from contracting with companies that permanently replaced striking workers was
preempted by the NLRA); Van-Go Transport Co., Inc. v. New York City Bd. of Education, 53 F.Supp.2d 278, 288
(E.D.N.Y. 1999) (policy of refusing to conditionally certify replacement workers that was applied to all of
department’s student transport contracts was preempted under NLRA); Aeroground, Inc. v. City & Cnty. of San
Francisco, 170 F. Supp. 2d 950, 956 (N.D. Cal. 2001)(card check rule applying to all employers at airport
effectively operated as licensing scheme and was preempted); Dillingham Const. NA, Inc. v. Cnty. of Sonoma, 190
F.3d 1034, 1037 (9th Cir.1999)(state law requiring public works contractors pay prevailing wages but allowing
apprentices be paid less under state-approved apprenticeship program was preempted by the NLRA); Healthcare
Ass’n of New York State, Inc. v. Pataki, 471 F.3d 87 (2d Cir. 2006)(statute prohibiting state funds be used for
purposes of encouraging or discouraging union organization was regulatory and preempted by the NLRA); Idaho
Bldg. and Constr. Trades Council, AFL-CIO v. Wasden, 836 F.Supp.2d 1146 (D. Idaho 2011); Associated Builders
& Contractors of Rhode Island, Inc. v. City of Providence, 108 F. Supp. 2d 73, 81 (D.R.I. 2000)(City’s grant of
favorable tax treatment in exchange for use of PLA was regulatory and preempted by NLRA); Ohio State Ohio State
Bldg. & Constr. Trades Council v. Cuyahoga Cnty. Bd. of Commissioners, 781 N.E.2d 951 (Ohio 2002) (Ohio
statute prohibiting public authorities from entering into or enforcing project labor agreements on public construction
projects was regulatory and preempted by the NLRA); see also Cardinal Towing, 180 F.3d at 692 (listing similar
cases).
26
180 F.3d 686 (5th Cir. 1999); see Pataki, 471 F.3d 87 (Second Circuit adopting Cardinal Towing’s test); Johnson,
623 F.3d 1011 (Ninth Circuit adopting Cardinal Towing’s test); Hospitality Resources, 390 F.3d 206 (Third Circuit
adopting test similar to Cardinal Towing); Lavin, 431 F.3d 1004 (Seventh Circuit adopting test similar to Cardinal
Towing). The Court notes that while the Defendants argue that only one prong of the Cardinal Towing test need be
met by the state action, supported by Johnson, 623 F.3d at 1024, the Fifth Circuit has applied both prongs in a more
recent case, see Stucky v. City of San Antonio, 260 F.3d 424, 434 (5th Cir. 2001) cert. granted, judgment vacated,
536 U.S. 936, 122 S. Ct. 2617, 153 L. Ed. 2d 801 (2002) abrogated by City of Columbus v. Ours Garage & Wrecker
Serv., Inc., 536 U.S. 424, 122 S. Ct. 2226, 153 L. Ed. 2d 430 (2002).

22

circumstances; and (2) whether 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. Cardinal Towing, 180 F.3d at 693.
As acknowledged by the Fifth Circuit in Cardinal Towing, the point at which the action
evidences a primary goal of encouraging labor policy27 rather than a narrow proprietary goal,
however, remains unclear.28 Some courts have found a “blanket prohibition,” similar to a
boycott, converts an action based on the state’s spending power into a regulatory one.29 Yet
other courts disagree.30 Indeed, the only two Circuit courts to consider a blanket rule in the
context PLAs in government construction have found the blanket prohibition to be proprietary
and not subject to NLRA preemption. See Allbaugh, 295 F.3d 28; Michigan Bldg. & Const.
Trades Council v. Snyder, 729 F.3d 572 (6th Cir.), reh’g and reh’g en banc denied (Nov. 27,
2013).
In Allbaugh, the D.C. Circuit held that President George W. Bush had the authority to
issue an executive order that provided that no federal agency receiving federal assistance for a
construction project may require bidders or contractors to enter (or prohibit them from entering
into) a project labor agreement. 295 F.3d at 29. The effect was to “leave to the contractors
working on the project the choice whether to enter into, and to require their subcontractors to
27

See Reich, 74 F.3d at 1339. In Reich, the President’s executive order, though based in economic rationale, was a
policy was based on the belief that allowing permanent replacement of strikers would prolong strikes and lead to the
loss of the skill of the strikers ultimately resulting in less efficient and economical performance by that contractor.
Id. at 1335. This, the court stated, “surely goes to the heart of United States labor relations policy,” and sets
primarily a “labor policy” rather than primarily a “procurement policy.” Id. at 1337.
28
See Cardinal Towing, 180 F.3d at 692. As the Supreme Court has recently opined, “[i]n some cases . . . the line
between regulatory and proprietary conduct has soft edges.” Am. Trucking Associations, Inc. v. City of Los Angeles,
Cal., 133 S. Ct. 2096, 2102-03, 186 L. Ed. 2d 177 (2013).
29
See Wasden, 836 F.Supp.2d 1146, 1163; Associated Builders & Contractors of Rhode Island, Inc. v. City of
Providence, 108 F. Supp. 2d 73, 81 (D.R.I. 2000); Cuyahoga Cnty. Bd. of Commissioners, 781 N.E.2d 951, 968.
30
Allbaugh, 295 F.3d 28 (D.C.Cir. 2002); Snyder, 729 F.3d 572 (6th Cir. 2013); Branstad, 2011 WL 4004652
(Governor’s executive order prohibiting state and political subdivisions from entering into PLAs on state-funded
construction projects was proprietary and not preempted by the NLRA); George Harms Constr. Co. v. N.J. Turnpike
Authority, 137 N.J. 8 (1994) (New Jersey supreme court finding that state was acting as proprietor or purchaser of
labor in construction industry when prohibiting a project labor agreement specification in public contracts).

23

enter into, a PLA, presumably depending upon whether it is likely to increase or to decrease their
costs.” Id. at 30. That the restriction was regulatory because it applied to projects merely funded
by the Government was, in the court’s opinion, an argument “that proceeds from too crabbed an
understanding of proprietorship.” Id. at 35. “[T]he Government unquestionably is the proprietor
of its own funds, and when it acts to ensure the most efficient use of those funds, it is acting in a
proprietary capacity.” Id. If the Government acts as a benefactor or lender just as a private
benefactor would, the Court reasoned, the Government similarly would be concerned about the
efficient use of its funds; the distinction was not relevant in that case. Id. The blanket rule—
applicable to all government contractors, “but not to the non-government contracts of those who
do business with the Government”—was not inconsistent with the actions of a proprietor. Id. The
Court explained: “A condition that the Government imposes in awarding a contract or in funding
a project is regulatory only when, as the Supreme Court explained in Boston Harbor, it
‘addresse[s] employer conduct unrelated to the employer’s performance of contractual
obligations to the [Government].’” Id. at 36 (citing Boston Harbor, 507 U.S. at 228–29). The
impact of the prohibition only extended to projects funded by the Government and not on
projects unrelated to those in which the Government had a proprietary interest. Id. Thus, the
court concluded that the executive order “establishe[d] no condition that can be characterized as
regulatory.” Id.
In Snyder, a Michigan legislative act, the Fair and Open Competition in Governmental
Construction Act, was challenged as being preempted by the NLRA. 729 F.3d at 575. The Act
initially stated that its purpose was to “provide for fair and open competition in governmental
construction contracts, grants, tax abatements, and tax credits” and barred governmental units
from entering or expending funds on a project if the contract or any subcontract contained a

24

PLA. Id. It also forbade any governmental units from placing any PLA terms in bid
specifications, project agreements, or other controlling documents. Id. The Act was amended
and clarified, stating that the purpose was “to provide for more economical, nondiscriminatory,
neutral, and efficient procurement of construction-related goods and services by this state…” as
well as “providing for fair and open competition,” which would best effectuate that intent. Id. at
576. The Act also only forbade governmental units from entering into PLAs themselves or
discriminating in favor of or against bidders on public projects based on whether the bidder had
entered into a PLA. Id. The amended version was found to be proprietary as the state was
“seeking to preserve taxpayer resources by encouraging open competition among potential
contractors and subcontractors.” Id. at 577. It did not ban PLAs or the use of PLAs on public
projects, and private entities, including those working on government projects, remain free to
enter into PLAs. Id. at 577–78. “The law’s effect is limited to forbidding governmental units
from entering into PLAs and then forcing the terms and conditions found within on bidders,
contractors, and subcontractors.” Id. at 577.
The court looked to the legislative intent as expressed in the statute as evidence of intent
as well as the legislative history and comments from certain senators. Id. at 577–78. The court
found that the limits or scope of the act demonstrated proprietary nature in that it only affected
actions of the state and had no effect on private parties. Id. In response to the argument that
PLAs would be ineffective if not applied to every contractor on the project, the court noted that
the governmental unit could give subcontracting power to one general contractor who could
enter into a PLA. Id. at 578. The council argued that the statute was too broad because it did not
consider projects on case-by-case basis, to which the court responded that private proprietors do
act in across-the-board basis without becoming regulators. Id. The court opined that “[t]he

25

legislature permissibly decided that public resources would best be preserved by taking the PLA
decision out of the hands of governmental units and leaving it to private contractors.” Id. at 578.
As compared to Boston Harbor, the court found the Michigan legislature stated a similar goal of
efficient procurement, and unlike Gould or Brown, the statute did not evidence facially
regulatory intent. Id. at 579 and n.4. “Although the legislature acted on all projects at once,” the
court stated, “unlike the Authority in Boston Harbor, that is not alone sufficient to make an
action regulatory.” Id. at 579.
D.

Market Participant Doctrine Applied to Act 134

Though Act 134 differs from the statute in Snyder and executive order in Allbaugh in
some respects, the differences are not as determinative as Plaintiff suggests. Despite the existing
Supreme Court and Fifth Circuit precedent on the market participant exception and the
compelling reasoning of the two Circuit courts that have addressed factually similar issues, the
Plaintiff urges the Court to reject the reasoning of Allbaugh and Snyder and adopt the reasoning
of the Ohio State Supreme Court in Ohio State Build. & Constr. Trades Council v. Cuyahoga
Cnty. Bd. of Commissioners, 98 Ohio St.3d 214 (Ohio 2002), which found a similar state statute
preempted by the NLRA. With this in mind, the Court now turns to the application of the market
participant doctrine in the instant matter.
i.

Efficient Procurement

When examining whether the challenged action, the state legislation, reflects the efficient
procurement of goods and services, the court must turn to the manifest purpose and effect of the
legislation. See Gould, 475 U.S. at 1064. In assessing whether legislation has a regulatory
purpose, the court should “look[] primarily to the objective purpose clear on the face of the
enactment” and “not search for an impermissible motive where a permissible purpose is

26

apparent.” Bldg. Indus. Elec. Contractors Ass'n, 678 F.3d at 191. “Federal preemption doctrine
evaluates what legislation does, not why legislators voted for it or what political coalition led to
its enactment.” Id. (quoting Lavin, 431 F.3d at 1007 (internal quotation marks omitted)).
Though courts have looked to explicit legislative statements of purpose in preambles to
statutes for evidence of intent,31 no such explicit statement of purpose exists for Act 134.
Defendant and Intervenors offer legislative committee minutes as evidence of the legislature’s
intent in enacting of Act 134, but Plaintiff finds the lack of a preamble evidence of an improper
purpose and opposes the use of the committee minutes based on Louisiana’s own statute
proscribing this use. See La. R.S. 24:177(E)(3) (“Committee minutes . . . shall not constitute
proof or indicia of legislative intent.”). Yet it is the purpose and effect of the statute that are
paramount,32 not the absence of a legislative preamble evidencing the legislature’s intent or the
presence of legislative committee minutes. The Court finds that in this case the text and context
of the law alone sufficiently demonstrate the purpose and effect of the law. See La. R.S.
24:177(B)(1)(“The text is the best evidence of legislative intent.”).
From the face of the statute, it is clear that the purpose pertains to the purchase of
construction services through a particular contract form (a PLA), on a “public works” project
with the use of state funds. Act 134 applies to public entities “when engaged in procuring
products or services or letting contracts” for construction of public works “paid for in whole or in
part by state or local funds” or when overseeing the procuring of products or services for the
same. La. R.S. 38:2225.5(A). It is clear that the State is concerned with the “procurement of
goods or services” through contracting for construction services in relation to construction

31

See, e.g., Brown, 554 U.S. at 70; Snyder, 729 F.3d at 576; Wasden, 836 F.Supp. at 1163.
Gould, 475 U.S. at 291; see also Cardinal Towing, 180 F.3d at 693–94 (examining the content and effect of City’s
contractual provisions)
32

27

contracts for “public works,” which by definition the public entity owns, uses, or leases.33 The
State’s ownership and interest in its own funds as well as its contracting to acquire and purchase
services itself demonstrates the proprietary nature of the law. The State chooses to employ its
funds for a project, often on its own land as owner-developer. See Boston Harbor, 507 U.S. at
231–32 (MWRA as public owner-developer acted as proprietor in contracting for PLA).
The proprietary interest derives not only from the ownership of the project constructed
but from the use of its funds. As the Supreme Court in Brown recognized, the state has a
legitimate proprietary interest in ensuring state funds are spent in accordance with the purposes
for which they are appropriated. Brown, 554 U.S. at 70. Thus, whether as owner or benefactor of
a project, the state is “unquestionably the proprietor of its own funds, and when it is acts to
ensure the most effective use of those funds, it is acting in a proprietary capacity.” Allbaugh, 295
F.3d at 35. By making a procurement policy on construction contracts, Act 134 evidences the
State’s entry into the market, whether legislatively or through individual public entities’
contracting decisions. Indeed, in Cardinal Towing, the city contracted for towing services, thus
participating in the market as a consumer (on behalf of the absent owner of the vehicle) without
utilizing its spending power or being the owner of the property towed. Cardinal Towing, 180
F.3d at 697.
Notwithstanding the text of Act 134, the placement of Act 134 within the context of the
public bid law reinforces the purpose of the law.34 Act 134 was enacted as part of the Louisiana
Public Bid law specifically “relative to contracts by public entities” and to provide certain

33

La. R.S. 38:2211(12)(“ ‘Public work’ means the erection, construction, alteration, improvement, or repair of any
public facility or immovable property owned, used, or leased by a public entity.”).
34
See Snyder, 729 F.3d at 575 (Michigan’s Fair and Open Competition in Governmental Construction Act’s goal
was to provide for more economical, nondiscriminatory, neutral and efficient procurement of construction-related
goods and services); but cf. Wasden, 836 F.Supp.2d at 1163 (Idaho’s Open Access to Work Act reflected a
regulatory purpose related to employees’ right to work).

28

restrictions. The Public Bid law, which requires a competitive bidding process, seeks to foster
open competition. “The statute was enacted in the interest of the taxpaying citizens and has for
its purpose the protecting of them against contracts of public officials entered into because of
favoritism and involving exorbitant and extortionate prices.” Hamp's Const., 924 So. 2d at 107;
see Haughton Elevator Div. v. State, Through Div. of Admin., 367 So. 2d 1161, 1164-65 (La.
1979). Act 134 imposes restrictions on bids and types of contracts that the public entities may
enter into on state funded construction projects. Presumably, the state has restricted the bidding
in a way consistent with the general purpose of the public bid law, which existed previously, in
fostering open competition.35 Such competition would allow the competitive bidding process to
function as intended in selecting the lowest responsible bidder and in theory provide the state
with the most economical bid for the construction project.36 Based on the context of the statute,
it is clear that the law is concerned with the most efficient procurement of these services.
Moreover, the state has acted similar to a private purchaser in determining whether it will
or will not permit its agents to choose to enter into PLAs. Just as the state spending power
cannot automatically be assumed to be proprietary, “the presence of the state in the market
cannot automatically be assumed to be motivated by a regulatory impulse.” Cardinal Towing,
180 F.3d at 692. Here, a private actor may freely refuse to enter into PLAs with a union as a

35

Louisiana courts have long held that “those who enact statutory provisions are presumed to act deliberately and
with full knowledge of existing laws on the same subject [ . . . and] with knowledge of the effect of their acts and a
purpose in view.” Borel v. Young, 2007-0419 (La. 11/27/07), 989 So. 2d 42, 48, on reh'g (July 1, 2008)(citations
omitted). The meaning and intent of a law is determined by “considering the law in its entirety and all other laws on
the same subject matter and by placing a construction on the law that is consistent with the express terms of the law
and with the obvious intent of the legislature in enacting the law.” Colvin v. Louisiana Patient's Comp. Fund
Oversight Bd., 2006-1104 (La. 1/17/07), 947 So. 2d 15, 19 (citing Moss v. State, 05–1963 (La.4/4/06), 925 So.2d
1185); see Rebel Distributors Corp. v. LUBA Workers' Comp., 2013-0749 (La. 10/15/13), 144 So. 3d 825, 838 (“The
placement of La. R.S. 23:1205 in the workers' compensation laws reinforces such an interpretation of La. R.S.
23:1205(A)”).
36
See New York state Chapter, Inc. v. New York State Thruway Authority, 88 N.Y.2d 56, 68 (N.Y. 1996)(stating that
one of the main purposes of the New York competitive bidding statutes, similar to Louisiana’s public bid law, was
protection of the public fisc by obtaining the best work at the lowest possible rate).

29

market participant.37 The construction proviso of the NLRA permits employers in the
construction industry to enter into prehire agreements, but nothing prevents an employer from
refusing to do so. The State as has similarly acted as a market participant would in deciding that,
to most efficiently procure construction services, the decision of entering into a PLA should be
left to the private contractors and not the public entities. See Snyder, 729 F.3d at 578. The
decision amounts to “nothing more than the public equivalent of a corporation’s by-law
regarding the purchase of construction services” that its officers or employees should not use a
certain mode of contracting that the corporate entity determines is economically inefficient. 38
Though Plaintiff suggests that the State has acted as a regulator in including the enforcement
provision in Section (D)39 of Act 134, the substance of the provision simply enforces the State’s
rule as to contractual provisions in its construction contracts. Far from interfering with the
purpose of the NLRA, the State’s action exemplifies it: the NRLA does not interfere with the
substance of the contractual provisions between bargaining parties but allows those parties to
enforce them.40 In light of the purpose and effect of the statute, the state through its legislature
has acted in a proprietary capacity in the same manner as a private actor could have.

37

See United Healthcare Ins. Co. v. Davis, 602 F.3d 618, 624-25 (5th Cir. 2010)(“A state is a market participant if it
is purchasing or selling a product or service; in such cases, it can choose its contracting partners as if it were a
private party and can choose to deal preferentially with in-state entities.”).
38
George Harms, 137 N.J. at 27; see also Am. Trucking Associations, Inc. v. City of Los Angeles, Cal., 133 S. Ct.
2096, 2102-03, 186 L. Ed. 2d 177 (2013) (“The Port here has not acted as a private party, contracting in a way that
the owner of an ordinary commercial enterprise could mimic.”).
39
Section (D) of Act 134 likely supersedes the more general enforcement provision of La. R.S. 38:2220. See Capital
City Press, L.L.C. v. Louisiana State Univ. Sys. Bd. of Sup'rs, 2013-2001 (La. App. 1 Cir. 12/30/14) (La. Ct. App.
Dec. 30, 2014) (“In addition, a general rule of statutory construction is that a specific statute controls over a broader,
more general statute. It is a fundamental rule that when two statutes deal with the same subject matter, if there is a
conflict, the statute specifically directed to the matter at issue must prevail as an exception to the statute more
general in character.” (citation and internal quotation marks omitted)).
40
But see Tri-M Grp., LLC v. Sharp, 638 F.3d 406, 425-26 (3d Cir. 2011)(stating that a state may act as a market
regulator where it employs coercive tools that no private actor could wield, such as the threat of civil fines, to
effectuate compliance with contractual provisions, while a private actor must rely on contractual remedies.)

30

ii.

Narrow Scope

The second part of the Cardinal Towing test examines the scope of the action and
questions 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 proprietary problem. The
Fifth Circuit recognized that not all state spending decisions are presumptively proprietary:
States have methods of influencing private conduct unrelated to the state's
proprietary functions—and thus potentially disrupting a congressional
plan—at their disposal that extend beyond traditional overt regulation.
One such method is deployment of a state's spending power in a manner
calculated to encourage or discourage such private behavior.
Cardinal Towing, 180 F.3d at 691. Plaintiff argues that Act 134 is not proprietary because the
prohibition is not tailed to one specific job but all PLAs entered into by the state, and that the
regulatory purpose is clear: it regulates not only those contractors bidding for projects with the
state but effectively forbids contractors to enter into PLAs with subcontractors. While “ad hoc”
decisions, such as the MWRA’s decision in Boston Harbor, undoubtedly demonstrate
proprietary conduct, a decision made through a blanket prohibition, on the other hand, may
appear regulatory upon first glance. The inquiry into the scope of the act under the Cardinal
Towing test becomes even more germane in this instance. Though ad hoc decisions eschew
regulatory purpose, it does not necessarily follow that “blanket” prohibitions cannot evidence
proprietary purpose. Both Allbaugh and Snyder relied on the purpose and effect of the executive
order and state legislation at issue, respectively, in determining that the scope did not defeat the
proprietary nature. See Allbaugh, 295 F.3d at 35–36; Snyder, 729 F.3d at 580. By contrast, the
Ohio Supreme Court focused on the form of the act (a flat-out prohibition) and relied heavily on
the comparison between state and private action, rather than examining the scope—the effect—
of the statute. See Cuyahoga Cnty., 781 N.E.2d 951 969–970. This Court finds the Ohio
31

Supreme Court’s reasoning unpersuasive and will examine the effect of the statute in
ascertaining whether its scope defeats an inference of a regulatory rather than proprietary goal.
Through Act 134, the Louisiana legislature has circumscribed public officials’ ability to
determine whether to enter into a PLA and incorporate a PLA into a bid or controlling document
on a public works construction project. The effect of this corporate or “executive” decision is no
different than the effect of a public officer deciding “each and every time . . . not to enter into
PLAs for any specific project.” Branstad, 2011 WL 4004652 at *10.41 A state may consistently
decide not to enter into PLAs and yet not convert the consistent proprietary decisions into a
single regulatory one.42 Using state funds efficiently furthers the state’s proprietary interest in
ensuring the funds are spent for the purpose appropriated—whether for all contractual
obligations or one a single contract.43 Here, the state did not restrict its choices to promote
enforcement of a labor policy or in such a way calculated to encourage or discourage private
behavior. Thus, there is simply “no logical justification for holding that if [a state statute]
establishes a consistent practice regarding the use of PLAs, it is regulatory even though the only
41

See also Bldg. Industry Elec. Contractors Ass’n, 678 F.3d at 192 (“It is hard to see why, even if political
favoritism was a motivating factor in the City’s decision to contract with particular contractors or unions, the PLAs
would be thereby transformed from contracts into regulations.”)
42
Snyder, 729 F.3d at 579 (“Although the legislature acted on all projects at once, unlike the Authority in Boston
Harbor, that is not alone sufficient to make an action regulatory.”); Branstad, 2011 WL 4004652, at *9 (“The Court
does not find a difference between Governor Branstad issuing countless Executive Orders each time the State enters
into projects (whether state-owned or state-funded) or one Executive Order banning PLAs from every project. If
twenty projects in a row were each declared, ad hoc, to prohibit PLAs, the intent and the result would be the same. It
would be a de facto “policy” against PLAs. The State is acting as a proprietor to prohibit PLAs and, because the
State has the right to do this, it has the right to make this determination in the manner it sees fit.”); Bldg. Indus. Elec.
Contractors Ass’n, 678 F.3d at 192 (“It is hard to see why, even if political favoritism was a motivating factor in the
City's decision to contract with particular contractors or unions, the PLAs would be thereby transformed from
contracts into regulations.”).
43
Bldg. Indus. Elec. Contractors Ass'n, 678 F.3d at 191-92 (2d Cir. 2012) (“It cannot be correct that to qualify for
the exception, the City must show that its contracts are maximally efficient. ‘Acting like a proprietor’ does not mean
acting exclusively with the narrow goal of minimizing costs regardless of consequences. Private proprietors are
entitled to, and sometimes do, prefer working with familiar faces or contracting with larger entities that can
consistently and simply provide all their requirements. These practices may reflect long-run economic rationality.
But even if they do not, accepting BIECA's restrictive theory of economic rationality would expose every public
PLA to challenge based on speculative ex post evaluations of whether the PLAs in fact proved economically
prudent.”(citations omitted)).

32

decisions governed by [it] are those that the [state] makes as [a] market participant.” Allbaugh,
295 F.3d at 35.
Notwithstanding the permissible proprietary goal of the “blanket prohibition,” the
legislation may be regulatory and preempted if it interferes with the comprehensive scheme
established by the NLRA. See Brown, 554 U.S. at 73–74. The Boston Harbor Court noted that it
was the state’s regulating conduct “unrelated to the employer’s performance of contractual
obligations” in Gould that was determinative in that case. 507 U.S. at 228–29. Indeed, the “line
between state regulation that is subject to preemption and market participation 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.” Sage
Hospitality, 390 F.3d at 214. Thus, as in Gould and Brown where each state deployed its
spending power to achieve a goal far broader than merely protecting its own proprietary
interests, “[c]onditions on spending may become regulation if they affect conduct other than the
financed project.” Lavin, 431 F.3d at 1006–07.
Despite Plaintiff’s broad interpretation of Act 134, the Act does not affect conduct
unrelated to the State’s contracts. Act 134 applies only to public works projects and does not
forbid any collective bargaining agreement between private parties. It does not even ban the use
of PLAs on all State or government projects. The Act prohibits public entities from making the
decision to enter into a PLA; as in Snyder, that decision is left to individual contractors. See
Snyder, 729 F.3d at 578. In light of its narrow application to State contracts, the Act specifically
states that nothing shall in the Act prohibit subcontractors and contractors from entering into
PLAs or other collective bargaining agreements. See La. R.S. 38:2225.5(C). Act 134 goes so far
as to exempt public-private projects over which a private entity would have the right to control

33

the labor relations on the project. See id. at (E)(4). Although Plaintiff argues that section (B) of
the Act would prohibit a private entity receiving government funds, such as tax increment
financing, from entering into a PLA on a private project, this argument misconstrues the statute
in applying it to private projects44 and wrongly assumes that the state would not have a
proprietary interest in the efficiency of public construction projects financed in part by public
funds. To the extent that the Act appears to allow discrimination against contractors or bidders
who are parties to PLAs, as Plaintiff infers from the absence of such prohibition, to give effect to
the text of the statute’s authorization of PLAs between contractors and subcontractors, the
projects should be limited to “public works” that are distinct from “private-public” projects and
should not prohibit contractors from entering into PLAs with subcontractors. Moreover, as to the
alleged prohibition of neutrality agreements, the Act, by its language, does not prohibit neutrality
agreements between the state and the union, but only from forcing a contractor to agree to be
bound by that agreement.45
Finally, the court is reluctant, as other courts have been, to examine the statute for any
further ulterior motive, particularly where a permissible motive is apparent.46 To the extent that
44

Though Plaintiff states the prohibitions in Section(A) applies to “any project,” this term is qualified by the rest of
the section and applies only to those projects where the bids, project agreements, or controlling documents would
contain the provisions proscribed in Section (a)—in other words, on construction projects. See id. at (A).
45
While Plaintiff argues that the Act impermissibly prohibits a labor organization from entering into a neutrality
agreement with a public entity, it is not clear that the Act functionally prohibits this agreement. Notwithstanding
uncertainty surrounding the lawfulness of neutrality agreements generally, the Act does not prohibit voluntary
recognition agreements of all forms, as Plaintiff seemingly suggests, but merely prohibits one particular condition
(remaining neutral) of one type of voluntary recognition agreement (neutrality agreement). More importantly, the
Act only prohibits offerors, bidders, contractors, subcontractors, or operators from entering into an agreement
whereby the public entity must remain neutral to the labor organization—it prohibits a provision requiring neutrality
between the public entity and a labor organization from being incorporated into a controlling document. It does not
prevent the labor organization from entering into an agreement with the public entity alone. Even if this type of
agreement would allow the labor organization to achieve majority status under Section (9)(a) of the NLRA, it is not
the only mode for doing so. Finally, unlike prehire agreements, the NLRA does not specifically allow neutrality
agreements, and Plaintiff cannot argue that it has a “right” to enter into this type of agreement. A fortiori any of the
Court’s discussion as to the Act’s proprietary nature as to PLAs also applies to the neutrality provision in Section
(A).
46
See Johnson, 623 F.3d at 1026–27.(“Plaintiffs contend that the [PLA]'s primary purpose was to reward the unions
that supported the Measure E campaign.... [W]e are quite certain that Congress did not intend for the NLRA's or

34

an impermissible purpose—to interfere with federally regulated labor relations—could have
motivated the Act, the text of the Act mitigates this concern where it states that the provisions of
the statute apply “[e]xcept as . . . required by federal law.” La. R.S. 38:2225.5(A).47
Considerations such as whether State’s actions actually further the goal of efficient procurement,
the prudence of the law, or whether the State “made a good business decision,” do not affect the
analysis. Johnson, 623 F.3d at 1025 (2010); see Int’l Truck and Engine Corp. v. Bray¸ 372 F.3d
717, 728 (5th Cir. 2004) (“[W]e cannot ‘second-guess the empirical judgments of lawmakers
concerning the utility of legislation.’”(citation omitted)). Furthermore, the Supreme Court has
emphasized that there is no rule that “state purchasing decisions may never be influenced by
labor considerations.” Boston Harbor, 507 U.S. at 229 (citing Gould, 475 U.S. at 291).
Therefore, based on the proprietary nature of the statute and narrow scope, the Court finds that
Act 134 reflects the State’s interest in efficient procurement of construction services as a market
participant.
In light of the above discussion, the proprietary nature and the narrow scope of the
legislation are evident. The State was acting not as a regulator but as a market participant in
enacting Act 134, and the Court finds that the NLRA should not preempt Act 134. Though
Plaintiff argues that the Act prevents labor organizations from exercising their “right” to
convince governmental entities to enter into a PLA with the labor organization and interferes
with an area left unregulated by Congress, these arguments that pertain to Garmon and
Machinists preemption are of no avail when the state acts as a market participant.
ERISA's preemptive scope to turn on state officials' subjective reasons for adopting a regulation or agreement.”);
Bldg. Indus. Elec. Contractors Ass'n, 678 F.3d at 191 (“Moreover, it is difficult to discern officials' motives given
the complex workings of government. See Bush v. Vera, 517 U.S. 952, 1012–14 & n. 9, 116 S.Ct. 1941, 135
L.Ed.2d 248 (1996) (Stevens, J., dissenting) (discussing difficulty of determining legislature's “predominant” motive
for passing a law, and collecting cases).”).
47
Lavin, 431 F.3d at 1006–07 (“Federal preemption doctrine evaluates what legislation does, not why legislators
voted for it or what political coalition led to its enactment.”).

35

In finding that the market participant applies to Act 134, the Court is mindful of “the
volume of, and obvious need for, interaction between the government and the private sector, [and
avoiding] the application of preemption in a manner that hobbles state and local governments’
purchasing efforts [and] threatens severe disruption.” Cardinal Towing, 180 F.3d at 692. The
Court is reluctant to infer preemption in light of existing precedent and the absence of
Congressional intent to the contrary. See Boston Harbor, 507 U.S. at 231–232; Garmon, 359
U.S. at 244; Sears, 436 U.S. at 188–89, and n.13. Congress balanced the employee’s right to
select a bargaining representative and an employer’s right to choose to associate with a union
with accommodating the construction industry’s established practices, opting to promote the
latter in enacting Sections 8(f) and 8(e) and allowing construction industry employers the
opportunity to continue industry practices. In this case, to deny the state the an option available
to a private purchaser in the construction market where Congress has acted to allow market
participants the choice to engage in industry contracting practices would arguably “place a
restriction on Congress’ intended free play of economic forces identified in Machinists.” See
Boston Harbor, 507 U.S. at 232.
IV.

CONCLUSION
In sum, the Court finds that the NLRA does not preempt Act 134 of the Louisiana

legislature. Therefore, as no genuine issue of material fact exists, the Defendant is entitled to
judgment as a matter of law on this matter.
Accordingly,
IT IS ORDERED that Plaintiff’s Motion for Summary Judgment (R. Doc. 39) is
DENIED;

36

IT IS FURTHER ORDERED that Defendant and Intervenor’s Motion for Summary
Judgment (R. Doc. 40) is GRANTED.
New Orleans, Louisiana, this _____ day of ______________________, 2015.
May
27th

_____________________________________
STANWOOD R. DUVAL, JR.
UNITED STATES DISTRICT JUDGE

37