Case 2:17-cv-00382-RAJ Document 13 Filed 03/13/17 Page 1 of 31 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 11 12 13 14 15 16 17 18 DAN CLARK, TAMI DUNLAP, ALI HASSAN, JENNIFER IMMEL, GALE KUNZE, DALE NO. 2:17-CV-00382 MONTZ, ELISABETH LOWE, ABDI MOTAN, FREDRICK RICE, MICHAEL RIEBS, and PLAINTIFFS’ CORRECTED MOTION FIREW TESHOME, FOR A TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INPlaintiffs, JUNCTION v. ORAL ARGUMENT REQUESTED CITY OF SEATTLE, SEATTLE DEPARTMENT OF FINANCE AND ADMINISTRATIVE SERVICES, and FRED PODESTA, in his official capacity as Director of the Seattle Department of Finance and Administrative Services, Defendants. 19 20 21 22 23 24 PLS.’ MOT. FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION NO. 2:17-CV-00382 NOTED ON CALENDAR: TRO: March 13, 2017 Preliminary Injunction: April 7, 2017 Case 2:17-cv-00382-RAJ Document 13 Filed 03/13/17 Page 2 of 31 1 2 TABLE OF CONTENTS TABLE OF AUTHORITIES ............................................................................................................. ii 3 SUMMARY OF ARGUMENT........................................................................................................... 1 4 FACTS................................................................................................................................................... 2 5 6 A. The Ordinance Grants a Union Authority to Coerce Drivers and Driver Coordinators to Either Accept That Union’s Representation and Contract or Cease Doing Business with One Another. ................................................................... 2 7 B. Enforcement of the Ordinance .......................................................................................... 4 8 ARGUMENT ....................................................................................................................................... 5 9 I. NLRA Sections 8(e) and 8(b)(4) Preempt the Ordinance. ..................................................... 5 10 A. NLRA Preemption Doctrines. ........................................................................................... 5 11 B. Section 8(e) Under Garmon Preempts the Ordinance..................................................... 6 12 13 14 15 C. Section 8(b)(4) Under Garmon Preempts the Ordinance. ............................................. 10 D. The Ordinance Authorizes Unlawful Secondary Union Conduct. ................................ 13 E. The Ordinance Is Also Preempted Because It Regulates Conduct That Sections 8(e) and 8(b)(4) Comprehensively Regulate. .................................................... 15 II. The Ordinance Violates Drivers’ First Amendment Freedom of Speech and Association. ............................................................................................................................. 16 16 17 III. The Driver’s Privacy Protection Act Preempts the Ordinance’s Disclosure Requirements. ......................................................................................................................... 20 18 IV. The Remaining Winter Factors Support Issuance of a Preliminary Injunction. ................. 21 19 CONCLUSION.................................................................................................................................. 24 20 21 22 23 24 PLS.’ MOT. FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION NO. 2:17-CV-00382 i Case 2:17-cv-00382-RAJ Document 13 Filed 03/13/17 Page 3 of 31 1 TABLE OF AUTHORITIES PAGE 2 Cases 3 14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009) .......................................................................17, 18 4 A. Duie Pyle v. NLRB, 383 F.2d 772 (3d Cir. 1967) .......................................................................... 9 5 Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977) ........................................................................ 18 6 Acevedo–Delgado v. Rivera, 292 F.3d 37 (1st Cir. 2002) ................................................................. 18 7 8 9 Am. Commc’ns Ass’n v. Douds, 339 U.S. 382 (1950) ...................................................................... 18 Am. Trucking Ass’ns v. City of L.A., 559 F.3d 1046 (9th Cir. 2009) ............................................... 22 Assoc. Gen. Contractors (Cal. Dump Truck), 280 N.L.R.B. 698 (1986)..................................... 9, 14 Assoc. Gen. Contractors. v. NLRB, 514 F.2d 433 (9th Cir. 1975) ............................................... 7, 10 10 Blasters, Drillrunners, & Miner Union (RWKS Comstock), 344 N.L.R.B. 751 (2005) ................... 8 11 12 13 Bldg. & Constr. Trades Council v. NLRB, 328 F.2d 540 (D.C. Cir. 1964) ..................................... 10 Carpenters Dist. Council (Alessio), 310 N.L.R.B. 1023 (1993) .................................................... 8, 13 Chamber of Commerce v. Brown, 554 U.S. 60 (2008) ................................................................... 5, 6 14 Chem. Workers Local 6-18 (Wis. Gas), 290 N.L.R.B. 1155 (1988) .................................................. 8 15 Chi. Dining Room Emps. (Clubmen), 248 N.L.R.B. 604 (1980) ....................................................... 7 16 Connell Constr. v. Plumbers & Steamfitters Local 100, 421 U.S. 616 (1975) ..........................14, 15 17 Constr., Bldg. Material, Ice & Coal Drivers, Local 221 v. NLRB, 899 F.2d 1238 (D.C. Cir. 1990) ................................................................................................................................ 9 18 Dan McKinney Co., 137 N.L.R.B. 649 (1962) .................................................................................... 7 19 20 21 22 23 24 Danielson v. Int’l Org. of Masters, Mates & Pilots, 521 F.2d 747 (2d Cir. 1975) ............................ 23 Danielson v. Teamsters Local 814, 355 F. Supp. 1293 (S.D.N.Y. 1973) ......................................... 23 Dowd v. ILA, 975 F.2d 779 (11th Cir. 1992) .................................................................................... 11 Elec. Workers (B. B. McCormick & Sons), 150 N.L.R.B. 363 (1964), enforced, 350 F.2d 791 (D.C. Cir. 1965) ....................................................................................................... 11 Elrod v. Burns, 427 U.S. 347 (1976) .................................................................................................. 21 PLS.’ MOT. FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION NO. 2:17-CV-00382 ii Case 2:17-cv-00382-RAJ Document 13 Filed 03/13/17 Page 4 of 31 1 TABLE OF AUTHORITIES cont. PAGE 2 Garner v. Teamsters, Local Union No. 776, 346 U.S. 485 (1953) ................................................... 16 3 Gen. Truck Drivers, Local 957 v. NLRB, 934 F.2d 732 (6th Cir. 1991) ....................................... 7, 9 4 5 6 7 8 9 10 Harris v. Quinn, 134 S. Ct. 2618 (2014) ..................................................................................2, 18, 19 HERE, Local 274 (CHC Hotel), 326 N.L.R.B. 1058 (1998) ............................................................. 8 Idaho Bldg. & Constr. Trades Council v. Inland Pac. Chapter, ABC., 801 F.3d 950 (9th Cir. 2015) ................................................................................................................................... 6 ILA v. Allied Int’l, 456 U.S. 212 (1982)............................................................................................. 11 ILA v. Davis, 476 U.S. 380 (1986) ....................................................................................................... 6 ILA, Local 1418 (New Orleans Steamship Ass’n), 235 N.L.R.B. 161 (1978) ................................... 7 Indus. Container Servs. (Teamsters Local 117), 2015 WL 3413478 (Jan. 1, 2015) .......................... 4 11 12 Int’l Ass’n of Bridge, Structural & Ornamental Iron Workers (Sw. Materials & Supply, Inc.), 328 N.L.R.B. 934 (1999) ........................................................................................... 8 13 Joint Council of Teamsters No. 38, (Cal. Ass’n of Emp’rs), 141 N.L.R.B. 341 (1963) ..................... 9 14 Joint Council of Teamsters, No. 42 v. NLRB, 702 F.2d 168 (9th Cir. 1981) .................................... 9 15 Knox v. SEIU, Local 1000, 567 U.S. 298 (2012) .............................................................................. 19 16 17 18 Ley v. Rochester Reg’l Joint Bd., Local 14A, 59 F. Supp. 3d 565 (W.D.N.Y. 2014)...................... 23 Local 3, IBEW (Mansfield Contracting Corp.), 205 N.L.R.B. 559 (1973) ...................................... 11 Local 3, IBEW (N.Y. Elec. Contractors Ass’n), 244 N.L.R.B. 357 (1979) ...............................10, 11 Local 20, Teamsters Union v. Morton, 377 U.S. 252 (1964) ........................................................... 16 19 Local 32B-32J, SEIU v. NLRB, 68 F.3d 490 (D.C. Cir. 1995) ........................................................ 12 20 Local 47, Teamsters (Tex. Indus.), 112 N.L.R.B. 923 (1955), enforced, 234 F.2d 296 21 (5th Cir. 1956) ............................................................................................................................. 8, 10 22 Local 277, Teamsters (J & J Farms Creamery Co.), 335 N.L.R.B. 1031 (2001) ................................ 8 23 Local 399, IBEW (Ill. Bell Tel. Co.), 235 N.L.R.B. 555 (1978), enforced, 601 F.2d 593 (7th Cir. 1979) .......................................................................................................... 11 24 PLS.’ MOT. FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION NO. 2:17-CV-00382 iii Case 2:17-cv-00382-RAJ Document 13 Filed 03/13/17 Page 5 of 31 1 TABLE OF AUTHORITIES cont. PAGE 2 Local 419, Carpet Layers v. NLRB., 467 F.2d 392 (D.C. Cir. 1972) ............................................... 15 3 Local 814, Teamsters v. NLRB, 512 F.2d 564 (D.C. Cir. 1975) ............................................9, 10, 15 4 5 Local No. 16, ILWU (City of Juneau), 176 N.L.R.B. 889 (1969) .................................................... 11 Lodge 76, Int’l Ass’n of Machinists v. Wis. Emp’t Relations Comm’n, 6 427 U.S. 132 (1976) .................................................................................................................... 6, 16 7 McDonough v. Anoka Cnty., 799 F.3d 931 (8th Cir. 2015) ............................................................. 21 8 9 10 Milk Drivers & Dairy Emps., Local 537 (Sealtest Foods), 147 N.L.R.B. 230 (1964) ........................ 9 Mulhall v. UNITE HERE Local 355, 618 F.3d 1279 (11th Cir. 2010) ........................................... 18 Nat’l Woodwork Mfrs. Ass’n v. NLRB, 386 U.S. 612 (1967) ...................................................passim Newspaper & Mail Deliverers, Union of N.Y. (N.Y. Post), 337 N.L.R.B. 608 (2002) .................... 12 11 NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175 (1967) .................................................................. 17 12 13 14 NLRB v. Bangor Bldg. Trades Council, 278 F.2d 287 (1st Cir. 1960) ........................................ 8, 10 NLRB v. Carpenters Dist. Council, 407 F.2d 804 (5th Cir. 1969) ................................................... 12 NLRB v. HERE Local 531, 623 F.2d 61 (9th Cir. 1980).................................................................... 7 15 NLRB v. Hotel & Rest. Emps. Union Local 531, 623 F.2d 61 (9th Cir. 1980) ............................... 14 16 NLRB v. Joint Council of Teamsters No. 38, 338 F.2d 23 (9th Cir. 1964) ....................................... 9 17 NLRB v. Local 825, Int’l Union of Op. Eng’rs (Burns & Roe, Inc.), 18 400 U.S. 297 (1971) .................................................................................................................... 8, 14 NLRB v. Servette, Inc., 377 U.S. 46 (1964)......................................................................................... 9 19 NLRB v. Teamsters Local 525, 773 F.2d 921 (7th Cir. 1985) ........................................... 7, 9, 10, 14 20 O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712 (1996)............................................... 19 21 Pavone v. Law Offices of Anthony Mancini, Ltd., No. 15 C 1538, 2016 WL 4678311 22 (N.D. Ill. Sept. 7, 2016) .................................................................................................................. 20 23 Pichler v. UNITE, 542 F.3d 380 (3d Cir. 2008) ............................................................................ 2, 21 24 Plumbers v. Door Cty., 359 U.S. 354 (1959) ..................................................................................... 11 PLS.’ MOT. FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION NO. 2:17-CV-00382 iv Case 2:17-cv-00382-RAJ Document 13 Filed 03/13/17 Page 6 of 31 1 TABLE OF AUTHORITIES cont. PAGE 2 Pye v. Teamsters Local Union No. 122, 61 F.3d 1013 (1st Cir. 1995) ............................................ 23 3 Retail Clerks Union, Local 137 v. Food Emp’rs Council, Inc., 351 F.2d 525 4 (9th Cir. 1965) ................................................................................................................................. 23 5 Rios v. Direct Mail Express, Inc., 435 F. Supp. 2d 1199 (S.D. Fla. 2006) ....................................... 21 6 Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) .................................................................................... 19 7 San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236 (1959) .................................................... 5 8 9 10 Seattle Mun. Code § 6.310.735.E ...................................................................................................... 21 Sheet Metal Workers, Local 91 v. NLRB, 905 F.2d 417 (D.C. Cir. 1990).................................... 7, 8 Smith v. Ark. State Highway Emps., Local 1315, 441 U.S. 463 (1979)............................................ 22 Teamsters Local 25 v. N.Y., New Haven & Hartford R.R., 350 U.S. 155 (1956) ........................... 11 11 Teamsters Local 36 v. NLRB, 669 F.2d 759 (D.C. Cir. 1981) ....................................................... 7, 9 12 13 14 Teamsters Local 631 (Reynolds Elec. & Eng’g Co.), 154 N.L.R.B. 67 (1965) .................................. 8 United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803 (2000) ..................................................... 19 Vaca v. Sipes, 386 U.S. 171 (1967) .................................................................................................... 18 15 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) ................................................................. 5 16 Wis. Dep’t of Indus. v. Gould Inc., 475 U.S. 282 (1986) ............................................................. 6, 15 17 Statutes 18 Driver’s Privacy Protection Act, 18 U.S.C. § 2721 et seq. .................................................................. 2 19 Driver's Privacy Protection Act, 18 U.S.C. § 2721(b). ....................................................................... 21 20 Driver's Privacy Protection Act, 18 U.S.C. § 2722(a) ..................................................................20, 21 21 Driver's Privacy Protection Act, 18 U.S.C. § 2724 ............................................................................ 21 22 Driver's Privacy Protection Act, 18 U.S.C. § 2725(3) ........................................................................ 20 23 24 National Labor Relations Act, 29 U.S.C. § 151 et seq. ....................................................................... 1 National Labor Relations Act, 29 U.S.C. § 152(3) ......................................................................14, 19 PLS.’ MOT. FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION NO. 2:17-CV-00382 v Case 2:17-cv-00382-RAJ Document 13 Filed 03/13/17 Page 7 of 31 1 TABLE OF AUTHORITIES cont. PAGE 2 National Labor Relations Act, 29 U.S.C. § 152(5) .............................................................................. 4 3 National Labor Relations Act, 29 U.S.C. § 158(b)(4).................................................................... 1, 22 4 National Labor Relations Act, 29 U.S.C. § 158(b)(4)(ii)(A) ................................................. 10, 11, 12 5 6 7 National Labor Relations Act, 29 U.S.C. § 158(b)(4)(ii)(B) ........................................... 10, 11, 12, 13 National Labor Relations Act, 29 U.S.C. § 158(e) .......................................................................... 1, 7 National Labor Relations Act, 29 U.S.C. § 160(l) ............................................................................. 23 8 Rules & Regulations 9 Seattle Fin. & Admin. Servs. Dirs. Rule-1 ................................................................................3, 20, 23 10 Seattle Fin. & Admin. Servs. Dirs. Rule-3 ...................................................................................... 3, 20 11 Seattle Fin. & Admin. Servs. Dirs. Rule-4 ............................................................................................ 4 12 Seattle Mun. Code § 6.310.110 ...................................................................................................passim 13 Seattle Mun. Code § 6.310.260.A.2.g ................................................................................................ 21 14 Seattle Mun. Code § 6.310.735.D ............................................................................................3, 11, 20 15 16 17 Seattle Mun. Code § 6.310.735.F ................................................................................................... 3, 11 Seattle Mun. Code § 6.310.735.H.1..................................................................................................... 4 Seattle Mun. Code § 6.310.735.H.2..................................................................................................... 4 Seattle Mun. Code § 6.310.735.H.4............................................................................................... 4, 13 18 Seattle Mun. Code § 6.310.735.I ...............................................................................................4, 9, 12 19 Seattle Mun. Code § 6.310.735.I(3) ..................................................................................................... 4 20 21 Seattle Mun. Code § 6.310.735.K .................................................................................................. 3, 11 Seattle Mun. Code § 6.310.735.M ....................................................................................................... 3 22 23 24 PLS.’ MOT. FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION NO. 2:17-CV-00382 vi Case 2:17-cv-00382-RAJ Document 13 Filed 03/13/17 Page 8 of 31 1 Plaintiffs Dan Clark, Tami Dunlap, Ali Hasson, Jennifer Immel, Elisabeth Lowe, Dale Montz, 2 Abdi Motan, Frederick Rice, Michael Riebs, Andrew Rogers, and Firew Teshome (“Plaintiff Driv- 3 ers”) move for a temporary restraining order and/or preliminary injunction that enjoins the De- 4 fendants (“City”) from enforcing Seattle Ordinance 124968. 5 SUMMARY OF ARGUMENT 6 The National Labor Relations Act (“NLRA”), 29 U.S.C. § 151 et seq., preempts the Ordi- 7 nance because it authorizes conduct prohibited by NLRA Sections 8(e) and 8(b)(4), 29 U.S.C. §§ 8 158(e), 158(b)(4). Section 8(e) prohibits union agreements that require an employer to “cease do- 9 ing business with any other person.” 29 U.S.C. § 158(e). Section 8(b)(4) prohibits unions from co- 10 ercing employers to cease doing business with any other person. 29 U.S.C. § 158(b)(4). These 11 provisions were enacted, in part, to stop the Teamsters from coercing companies to enter into “hot 12 cargo” agreements that require they only do business with Teamsters-represented drivers. Nat’l 13 Woodwork Mfrs. Ass’n v. NLRB, 386 U.S. 612, 635–37 (1967). 14 The Ordinance authorizes the very union conduct that Sections 8(e) and 8(b)(4) prohibit, as it 15 empowers a union to coerce driver coordinators only to do business with drivers subject to that 16 union’s representation and contract. An example proves the point. If Teamsters Local 117, acting 17 without City assistance, coerced driver coordinator Uber to agree only to do business in Seattle 18 with Teamsters-represented drivers, that coercion and hot cargo agreement would violate Sections 19 8(e) and 8(b)(4), respectively. The Ordinance does little more than assist the Teamsters with this 20 illegal course of conduct. Consequently, the NLRA preempts the Ordinance. 21 The Ordinance also violates drivers’ First Amendment rights, as it calls for stripping them of 22 their right to speak and contract with driver coordinators, and transferring those rights to a union, 23 irrespective of whether the drivers approve. The government cannot transfer a citizen’s First 24 Amendment rights to speak and contract to an interest group without a compelling reason for so PLS.’ MOT. FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION NO. 2:17-CV-00382 1 Case 2:17-cv-00382-RAJ Document 13 Filed 03/13/17 Page 9 of 31 1 doing. Unlike in the employment context, the government’s interest in so-called “labor peace” 2 does not justify this infringement on independent contractor’s First Amendment rights. See Harris 3 v. Quinn, 134 S. Ct. 2618, 2640–41 (2014). 4 Finally, the Ordinance and its implementing rules compel driver coordinators to disclose the 5 personal information about a driver obtained from his or her motor vehicle record, such as the 6 driver’s license number. These compelled disclosures will violate the Plaintiff Drivers’ rights under 7 the Driver’s Privacy Protection Act (“DPPA”), 18 U.S.C. § 2721 et seq., which does not permit 8 unions to obtain information from motor vehicle records for the purpose of union organizing. See 9 Pichler v. UNITE, 542 F.3d 380, 396 (3d Cir. 2008). 10 The Plaintiff Drivers are likely to succeed on their claims’ merits. As discussed below, they will 11 suffer irreparable harm unless the Ordinance is enjoined. Given the lack of any countervailing City 12 or public interest in permitting the Ordinance’s enforcement, a temporary restraining order and 13 preliminary injunction should be issued. 14 15 FACTS 16 A. The Ordinance Grants a Union Authority to Coerce Drivers and Driver Coordinators to Either Accept That Union’s Representation and Contract or Cease Doing Business with One Another. 17 The Ordinance regulates the relationship between three parties: (1) “for-hire drivers,” who are 18 independent contractors who operate motor vehicles and do business with driver coordinators, 19 Seattle Municipal Code (“SMC”) § 6.310.110; (2) a “driver coordinator,” which is an “entity that 20 hires, contracts with, or partners with for-hire drivers for the purpose of assisting them with, or fa- 21 cilitating them in, providing for-hire services to the public,” id.; and (3) unions that are, or seek to 22 become, an “exclusive driver representative,” which is a union certified by the City to be “the sole 23 and exclusive representative of all for-hire drivers operating within the City for a particular driver 24 coordinator,” id. The Ordinance’s principal function is to grant a union authority to compel drivPLS.’ MOT. FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION NO. 2:17-CV-00382 2 Case 2:17-cv-00382-RAJ Document 13 Filed 03/13/17 Page 10 of 31 1 ers and driver coordinators only to do business with one another, under the auspices of that un- 2 ion’s representation and contract. 3 Specifically, the Ordinance’s organizing provisions grant any union the Director of Seattle’s 4 Department of Finance and Administrative Services deems a “qualified driver representative” au- 5 thority to compel all drivers and driver coordinators to accept that union as an exclusive driver rep- 6 resentative if it obtains statements of interest from a majority of “qualified drivers”1 who do busi- 7 ness with that coordinator. SMC § 6.310.735.F; Seattle Fin. & Admin. Servs. Dirs. Rule [FHDR]- 8 3, p. 2. The Ordinance further empowers a qualified union to coerce driver coordinators not to 9 interfere with or restrain that union’s organizing campaign, SMC § 6.310.735.K; not to financially 10 assist drivers with resisting the union, id.; and to provide the union with information about quali- 11 fied drivers with which it does business, SMC § 6.310.735.D. That information includes the driv- 12 ers’ names, addresses, email addresses (if available), phone numbers (if available), for-hire driver 13 license/permit numbers (issued by King County/City of Seattle), and drivers’ license numbers. 14 FHDR-1, p. 3. These means are enforceable through a private cause of action and an administra- 15 tive process that carries with it $10,000 daily penalties for violations. SMC § 6.310.735.M. 16 If a union obtains statements of interest from a majority of “qualifying drivers,” it will be certi- 17 fied to be the “sole and exclusive representative of all for-hire drivers operating within the City for 18 a particular driver coordinator,” and then “authorized to negotiate, obtain and enter into a contract 19 that sets forth terms and conditions of work applicable to all of the for-hire drivers employed by 20 that driver coordinator.” SMC § 6.310.110; FHDR-3, p.2. These terms and conditions include ve- 21 22 23 24 1 The Director defined a “qualified driver” as one who (1) had a contractual relationship with the driver coordinator before October 19, 2016; (2) had driven at least 52 trips originating or ending in Seattle’s city limits for the driver coordinator during any 3 month period since January 17, 2016 (with an exception for active military members); and 3) has a valid (i.e. unexpired or not more than 60 days expired) for-hire driver’s license/permit on the date the driver coordinator makes the list of drivers for the qualified driver representative. FHDR-1, pp. 2–3. PLS.’ MOT. FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION NO. 2:17-CV-00382 3 Case 2:17-cv-00382-RAJ Document 13 Filed 03/13/17 Page 11 of 31 1 hicle equipment standards, safe driving practices, background checks, payments made or withheld, 2 minimum working hours, conditions of work, and policies concerning discipline and deactivation. 3 FHDR-4, Subjects of Bargaining between a Driver Coordinator and an Exclusive Driver Repre- 4 sentative, p. 2; SMC § 6.310.735.H.1. They also include a requirement that drivers become union 5 members to do business with a driver coordinator. SMC § 6.310.735.H.4. 6 The Ordinance’s arbitration provision grant an exclusive driver representative authority to 7 compel a driver coordinator to enter into an agreement that governs the terms and conditions un- 8 der which it does business with drivers in Seattle, if an agreement is not reached within ninety (90) 9 days of certification. SMC § 6.310.735.I. Upon the Director’s approval, the resulting agreement is 10 binding on all drivers who do business with that driver coordinator. SMC §§ 6.310.735.H.2 & I(3). 11 The end result of an exclusive driver representative’s certification is that only drivers willing to 12 accept that union’s representation and contract can do business with that driver coordinator in Se- 13 attle. Conversely, that driver coordinator can do business in Seattle only with unionized drivers. 14 Drivers and a driver coordinator will otherwise have to cease doing business with one another. 15 B. Enforcement of the Ordinance 16 On March 3, 2017, the Director deemed Teamsters Local 117 to be a qualified driver repre- 17 sentative under the Ordinance. Pls. Decl.2, ¶ 8. Teamsters Local 117 is a “labor organization” un- 18 der 29 U.S.C. § 152(5), as it represents employees subject to the NLRA. See Indus. Container 19 Servs. (Teamsters Local 117), 2015 WL 3413478 (Jan. 1, 2015). On March 7, 2017, Teamsters 20 Local 117 notified driver coordinators Uber and Lyft of its intent to organize drivers who do busi- 21 ness with them. Pls. Decl., ¶ 8. The drivers that Teamsters Local 117 targeted for collectivization 22 include the Plaintiff Drivers, all of whom are for-hire drivers who do business with Uber. Pls. Decl. 23 ¶ 2. Plaintiffs Dan Clark and Elisabeth Lowe also do business with Lyft. Clark Decl. ¶ 2; Lowe 24 2 Citation to “Pls. Decl.” is the citation utilized for the joint citation of all eleven Plaintiff Declarations. PLS.’ MOT. FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION NO. 2:17-CV-00382 4 Case 2:17-cv-00382-RAJ Document 13 Filed 03/13/17 Page 12 of 31 1 Decl. ¶ 2. Plaintiff Drivers meet the Ordinance’s requirements to be a “qualified driver” under the 2 Ordinance, Pls.’ Decl. ¶ 7, except for Plaintiffs Clark, Dunlap, Immel, Montz, and Riebs, due to 3 lack of hours or the City’s delay in responding to their license renewal requests, Pls. Decl. ¶ 7. 4 This means that while Plaintiffs Clark, Dunlap, Immel, Montz, and Riebs will have no voice in 5 whether Teamsters Local 117 becomes an exclusive driver representative, they nevertheless may 6 have to accept its representation to do business with Uber. 7 Plaintiff Drivers do not want to be forced to accept Teamsters’ representation, or to abide by 8 the terms of a Teamsters’ contract, to do business with Uber or Lyft. Pls. Decl., ¶¶ 9 & 11. Plaintiff 9 Drivers wish to remain free to speak, contract, and otherwise do business with Uber or Lyft on 10 their own terms, without the Teamsters’ unwanted interference, and without the Teamsters taking 11 a portion of the money that they earn. Id. at ¶¶ 4, 8–12. 12 13 ARGUMENT “A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on 14 the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] 15 that the balance of equities tips in his favor, and that [4] an injunction is in the public interest.” 16 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Plaintiffs likely are to succeed on 17 their preemption and First Amendment claims for the reasons discussed below in Sections I and 18 II, respectively. The remaining factors favor issuance of a preliminary injunction or temporary re- 19 straining order for the reasons stated in Section III. 20 I. NLRA Sections 8(e) and 8(b)(4) Preempt the Ordinance. 21 A. NLRA Preemption Doctrines. 22 “Congress implicitly mandated two types of preemption as necessary to implement federal la- 23 bor policy.” Chamber of Commerce v. Brown, 554 U.S. 60, 65 (2008). The first is Garmon 24 preemption. San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236 (1959). “Garmon prePLS.’ MOT. FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION NO. 2:17-CV-00382 5 Case 2:17-cv-00382-RAJ Document 13 Filed 03/13/17 Page 13 of 31 1 emption forbids States to ‘regulate activity that the NLRA protects, prohibits, or arguably protects 2 or prohibits.’” Brown, 554 U.S. at 65 (emphasis added) (quoting Wis. Dep’t of Indus. v. Gould 3 Inc., 475 U.S. 282, 286 (1986)). The term “arguably” has significance, as the Ninth Circuit recog- 4 nized in Idaho Building & Construction Trades Council v. Inland Pacific Chapter, ABC., 801 F.3d 5 950, 962 (9th Cir. 2015). “To prevail, ‘a party asserting pre-emption’ under Garmon’s ‘arguably’ 6 standard need only ‘advance an interpretation of the Act that is not plainly contrary to its language 7 and that has not been ‘authoritatively rejected’ by the courts or the Board.’” Id. (quoting ILA v. 8 Davis, 476 U.S. 380, 395 (1986)). “This is not a demanding standard.” Id. at 965. A plaintiff “need 9 not, for example, show that the Board will or is even likely to ultimately agree with their position.” 10 Id. Garmon merely requires that plaintiffs “‘demonstrate that [the issue] is one that the Board 11 could legally decide in [their] favor.’” Id. (quoting Davis, 476 U.S. at 395). 12 The other NLRA preemption type is “known as Machinists pre-emption.” It “forbids both the 13 . . . NLRB and States to regulate conduct that Congress intended ‘be unregulated because [they] 14 left [it] to be controlled by the free play of economic forces.’” Brown, 554 U.S. at 65 (quoting 15 Lodge 76, Int’l Ass’n of Machinists v. Wis. Emp’t Relations Comm’n, 427 U.S. 132, 140 (1976)). 16 This includes “economic weapons” and other means of “self-help” that unions and employers use 17 to pressure one another, such as strikes, boycotts, or lockouts. Machinists, 427 U.S. at 147–48. 18 B. Section 8(e) Under Garmon Preempts the Ordinance. 19 1. Section 8(e) provides that: 20 It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforcible. 21 22 23 24 PLS.’ MOT. FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION NO. 2:17-CV-00382 6 Case 2:17-cv-00382-RAJ Document 13 Filed 03/13/17 Page 14 of 31 1 29 U.S.C. § 158(e) (emphasis added). The statute also contains exemptions for the construction 2 and garment industries, which are inapplicable here. 3 Section 8(e)’s proscription is broad. “Congress . . . was intent on reaching every device, no mat- 4 ter how disguised, which, fairly considered, is tantamount to an agreement to cease doing business 5 for an unlawful reason.” Dan McKinney Co., 137 N.L.R.B. 649, 653 (1962) (footnote omitted). 6 “Congress was of the opinion that the mere existence of such provisions has coercive effect upon 7 an employer and, in providing that hot cargo clauses shall be >void and unenforceable,= was legislat- 8 ing to eradicate any form, existence, or enforcement of such contracts as against public policy.” Id. 9 at 655 (footnote omitted). 10 To this end, Section 8(e) reaches “any contract or agreement, express or implied.” 29 U.S.C. § 11 158(e). The phrase “cease doing business” means more than just a complete termination of a busi- 12 ness relationship, but any “attempt to cause a significant change in a secondary person’s method of 13 doing business.” Assoc. Gen. Contractors. v. NLRB, 514 F.2d 433, 437 n.6 (9th Cir. 1975); see 14 Sheet Metal Workers, Local 91 v. NLRB, 905 F.2d 417, 421 (D.C. Cir. 1990); ILA, Local 1418 15 (New Orleans Steamship Ass’n), 235 N.L.R.B. 161, 168–69 (1978). In addition, the term “other 16 person” in Section 8(e) encompasses not only employers, but also independent contractors, such 17 as those who operate motor vehicles. See p. 8, n.4, infra. 18 “Generally ‘[a]greements which limit the employer . . . to subcontracting with businesses that 19 recognize the union or have a union contract violate section 8(e).’” NLRB v. Teamsters Local 525, 20 773 F.2d 921, 924 (7th Cir. 1985) (quoting Teamsters Local 36 v. NLRB, 669 F.2d 759, 764 (D.C. 21 Cir. 1981)). These types of agreements are known as “union signatory clauses.” “[I]t is well settled 22 that union signatory clauses violate section 8(e).” NLRB v. HERE Local 531, 623 F.2d 61, 67 (9th 23 Cir. 1980); see Gen. Truck Drivers, Local 957 v. NLRB, 934 F.2d 732, 736 (6th Cir. 1991) (simi- 24 lar); Chic. Dining Room Emps. (Clubmen), 248 N.L.R.B. 604, 606 (1980) (similar). The reason is, PLS.’ MOT. FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION NO. 2:17-CV-00382 7 Case 2:17-cv-00382-RAJ Document 13 Filed 03/13/17 Page 15 of 31 1 requiring an employer to do business with persons who abide by a union contract necessarily 2 means that the employer cannot do business with persons who refuse.3 3 Section 8(e)’s prohibitions apply with particular force to a union signatory agreement that tar- 4 gets independent contractors who operate motor vehicles, which is “known as a ‘hot cargo’ clause 5 because of its prevalence in Teamsters Union contracts.” Nat’l Woodwork Mfrs. Ass’n, 386 U.S. 6 at 634. “‘[A] primary target of the 1959 amendments’” that added Section 8(e) to the NLRA “‘was 7 See NLRB v. Local 825, Int’l Union of Op. Eng’rs (Burns & Roe, Inc.), 400 U.S. 297, 305 (1971) (holding the “clear implication” of a union demand that an employer bind contractors to a union agreement is that the employer cannot do business with noncompliant contractors); Sheet Metal Workers, Local 91, 905 F.2d at 421 (holding the requirement that employers extend terms of a union contact to affiliates means the employers are “obliged either to terminate their relationships with their nonunionized affiliates or to induce those affiliates to become unionized,” and “[e]ither outcome is within the ambit of section 8(e)”); NLRB v. Bangor Bldg. Trades Council, 278 F.2d 287, 288, 290 (1st Cir. 1960) (holding a clause stating that “this Agreement binds all the subcontractors as well as the general contractor” requires a cessation of business because a subcontractor “must be compelled to unionize, or he must be displaced”); Blasters, Drillrunners, & Miner Union (RWKS Comstock), 344 N.L.R.B. 751, 753–55 (2005) (holding an agreement that made compliance with a union contract a condition of engaging in a joint venture was an agreement to “cease doing business”); Local 277, Teamsters (J & J Farms Creamery Co.), 335 N.L.R.B. 1031, 1031–32 (2001) (holding the requirement that employer “subcontract work only to an employer who is a signatory to a collective-bargaining agreement” is an unlawful “‘union signatory’ clause” because it Aplainly limits subcontracting to union ‘signatory’ employers”); Int’l Ass’n of Bridge, Structural & Ornamental Iron Workers (Sw. Materials & Supply, Inc.), 328 N.L.R.B. 934, 941 (1999) (holding an agreement making a union contract applicable to any person or firm financially controlled by an employer violates Section 8(e) because it “force[s] a cessation or alteration of business with the related firm”); HERE, Local 274 (CHC Hotel), 326 N.L.R.B. 1058, 1058–59 (1998) (holding a clause making a union contract “applicable to and binding upon any successor, assignee, lessee or concessionaire” violates section 8(e) because the employer is “prohibited from doing business with such potential lessee or concessionaire who refused to be bound by that agreement”); Carpenters Dist. Council (Alessio), 310 N.L.R.B. 1023, 1025 (1993) (holding a clause requiring that an employer’s affiliates be covered by the union’s contract violates Section 8(e) because it will “cause Alessio to sever its ownership relationship with affiliated firms that seek to remain nonunion or to forbear from forming relationships with such firms”); Chem. Workers Local 6-18 (Wis. Gas), 290 N.L.R.B. 1155, 1155–56 (1988) (holding a clause stating “[w]henever the Company shall contract work . . . the work so contracted shall be done by Union labor” is “a classic union-signatory clause,” because it “precludes the Employer from doing business with any other employer who does not have a labor agreement with a union”); Teamsters Local 631 (Reynolds Elec. & Eng’g Co.), 154 N.L.R.B. 67, 69 (1965) (holding clauses that “permit the subcontracting of unit work to companies observing all the terms of the instant contract” violate Section 8(e) because they “limit the choice of subcontractors to those which recognize and have collective-bargaining agreements with a union”); Local 47, Teamsters (Tex. Indus.), 112 N.L.R.B. 923, 924 (1955), enforced, 234 F.2d 296 (5th Cir. 1956) (holding an agreement, which requires subcontractors abide by a union contract, has a “cease doing business objective” because “the Union’s demand for adoption of the ‘subcontractor clause’ necessarily contemplated that the general contractors would be precluded by that clause from dealing with such subcontractors as might refuse to abide by the terms of the Union’s contract”). 3 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 PLS.’ MOT. FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION NO. 2:17-CV-00382 8 Case 2:17-cv-00382-RAJ Document 13 Filed 03/13/17 Page 16 of 31 1 the secondary boycotts conducted by the Teamsters Union, which ordinarily represents employees 2 not of manufacturers, but of motor carriers.’” NLRB v. Joint Council of Teamsters No. 38, 338 3 F.2d 23, 26 (9th Cir. 1964) (quoting NLRB v. Servette, Inc., 377 U.S. 46, 55 (1964)). In fact, the 4 initial Senate amendment only applied to motor carriers. Nat’l Woodwork, 386 U.S. at 636. While 5 Congress ultimately made Section 8(e) applicable to all industries, the point remains that a genesis 6 of the prohibition was to stop the Teamsters from causing employers to enter into hot cargo 7 agreements. Id. at 636–37.4 8 9 2. Section 8(e) preempts the Ordinance because it calls for forcing driver coordinators to enter into hot cargo arrangements with Teamsters Local 117 and other unions. The certification of 10 Teamsters Local 117 to be the “sole and exclusive representative of all for-hire drivers operating 11 within the City for a particular driver coordinator,” SMC § 6.310.110, will necessarily require that 12 the driver coordinator cease doing business with drivers unwilling to accept Teamsters’ representa- 13 tion. The Ordinance’s requirement that the driver coordinator thereafter enter into an agreement 14 with Teamsters Local 117 that governs the terms under which it does business with drivers, SMC 15 § 6.310.735.I, will compel driver coordinators literally to enter into a classic hot cargo agreement 16 with that union. Garmon preempts the Ordinance because its principal purpose and effect—to re- 17 quire that driver coordinators only do business with independent drivers subject to a union’s repre- 18 sentation and contract—are the very results that Section 8(e) prohibits. 19 20 21 22 23 24 4 A sample of cases that hold that Section 8(e) prohibits agreements requiring an employer to do business with owner-operators of motor vehicles who abide by terms of a union contract include: Teamsters Local 957, 934 F.2d at 736–37; Constr., Bldg. Material, Ice & Coal Drivers, Local 221 v. NLRB, 899 F.2d 1238, 1243 (D.C. Cir. 1990); Teamsters Local 525, 773 F.2d at 924; Joint Council of Teamsters, No. 42 v. NLRB, 702 F.2d 168 (9th Cir. 1981); Teamsters Local 36, 669 F.2d at 764; Local 814, Teamsters v. NLRB, 512 F.2d 564, 566–67 (D.C. Cir. 1975); A. Duie Pyle v. NLRB, 383 F.2d 774, 775–78 (3d Cir. 1967); NLRB v. Joint Council of Teamsters No. 38, 338 F.2d 23, 30–31 (9th Cir. 1964); Assoc. Gen. Contractors (Cal. Dump Truck), 280 N.L.R.B. 698, 701–02 (1986); Milk Drivers & Dairy Emps., Local 537 (Sealtest Foods), 147 N.L.R.B. 230, 235–36 (1964); Joint Council of Teamsters No. 38, (Cal. Ass’n of Emp’rs), 141 N.L.R.B. 341 (1963). Note almost all of these cases involved the Teamsters. PLS.’ MOT. FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION NO. 2:17-CV-00382 9 Case 2:17-cv-00382-RAJ Document 13 Filed 03/13/17 Page 17 of 31 1 C. Section 8(b)(4) Under Garmon Preempts the Ordinance. 2 1. Section 8(b)(4) basically prohibits union coercion whose object is to force or require one 3 person to cease doing business with another person. The statute states, in relevant part, that a un- 4 ion commits an unfair labor practice when it: 5 (ii) . . . threaten[s], coerce[s], or restrain[s] any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is— 6 (A) forcing or requiring any employer or self-employed person to join any labor or employer organization or to enter into any agreement which is prohibited by subsection (e) of this section; 7 8 (B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person . . . . 9 10 29 U.S.C. ' 158(b)(4)(ii)(A) and (B). As this language suggests, Section 8(b)(4) prohibits unions 11 from coercing employers not to do business with independent drivers, and vice versa.5 12 “[W]hen Congress used ‘coerce’ in section 8(b)(4)(B) it did not intend to proscribe only strikes 13 or picketing, but intended to reach any form of economic pressure of a compelling or restraining 14 nature.” Assoc. Gen. Contractors, 514 F.2d at 438. This includes union coercion exerted through 15 a public entity. See Local 3, IBEW (N.Y. Elec. Contractors Ass’n), 244 N.L.R.B. 357, 358–59 16 (1979). In fact, Congress amended Section 8(b)(4) to that end. Id. Under the statute’s original lan- 17 guage, “unions lawfully could enlist the aid of non-statutory agricultural, governmental, railroad, or 18 airline employees to carry out secondary boycotts.” Id. at 358. In 1959, Congress amended Section 19 8(b)(4) to end this tactic. Id. at 359. Believing “boycotts by these groups are just as much against 20 See Teamsters Local 525, 773 F.2d at 924 (holding the union violated Section 8(b)(4) by “by picketing and threatening to picket [an employer] to force the self-employed owner-drivers to join the Union and to force [the employer] to enter into an agreement prohibited by Section 8(e) of the Act”); Local 814, 512 F.2d at 567 n.5 (noting that a union will violate Section 8(b)(4) by coercing employer to extend union contract to truck drivers if those drivers are not employees, but independent contractors); Bangor Bldg. Trades Council, 278 F.2d at 290 (same); Local 47, 112 N.L.R.B. at 924 (holding a union violated Section 8(b)(4) by picketing employer to coerce it to compel truck drivers to abide by union contract); see also Building & Constr. Trades Council v. NLRB, 328 F.2d 540, 541–42 (D.C. Cir. 1964) (holding a union violated Section 8(b)(4)(B) by coercing contractor only to do business with subcontractors signatory to union contract). 5 21 22 23 24 PLS.’ MOT. FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION NO. 2:17-CV-00382 10 Case 2:17-cv-00382-RAJ Document 13 Filed 03/13/17 Page 18 of 31 1 the public interest as boycotts by anyone else,” Congress “extend[ed] the protection of the second- 2 ary boycott provisions of the act to public employers, railroads, or agricultural enterprises without 3 subjecting them to other provisions of the act.” Id. (emphasis added) (footnote omitted). Conse- 4 quently, it is now well-established that Section 8(b)(4) applies to union coercion exerted through 5 entities not subject to the NLRA, such as public bodies.6 6 2. The Ordinance authorizes conduct prohibited by Sections 8(b)(4)(ii)(A) and (B) because it 7 empowers unions to “threaten, coerce, or restrain” driver coordinators with the “object” of “(A) 8 forcing or requiring any employer [driver coordinators] . . . to enter into any agreement which is 9 prohibited by [Section 8(e)]” and “(B) forcing or requiring [driver coordinators] . . . to cease doing 10 business with any other [drivers].” 29 U.S.C. §§ 158(b)(4)(ii)(A), (B). Specifically, the Ordinance’s 11 organizing and bargaining provisions are both means for unions to coerce driver coordinators only 12 to do business with drivers subject to a union’s representation or contracts. 13 The Ordinance’s organizing provisions empower unions to coerce unwilling driver coordina- 14 tors to turn over information about their drivers, SMC § 6.310.735.D; not to take certain actions to 15 oppose union campaigns, SMC § 6.310.735.K; and to accept the union as the representative of all 16 drivers with which it does business in Seattle, SMC § 6.310.735.F. The object of these coercive 17 18 19 20 21 22 23 24 See Plumbers v. Door Cty., 359 U.S. 354, 357–59 (1959) (holding a union could violate Section 8(b)(4) by pressuring a county to cease doing business with nonunion contractor); Teamsters Local 25 v. N.Y., New Haven & Hartford R.R., 350 U.S. 155 (1956) (holding a union could violate Section 8(b)(4) by pressuring a railroad to cease doing business with statutory employers); Dowd v. ILA, 975 F.2d 779, 789–91 (11th Cir. 1992) (holding unions could violate Section 8(b)(4) by inducing a Japanese union to pressure the employer to capitulate to the union’s demands); Local 399, IBEW (Ill. Bell Tel. Co.), 235 N.L.R.B. 555, 559 (1978), enforced, 601 F.2d 593 (7th Cir. 1979) (holding a union violated Section 8(b)(4) by attempting to cause a public utility not to lease equipment from an employer); Local No. 16, ILWU (City of Juneau), 176 N.L.R.B. 889 (1969) (holding Section 8(b)(4) applies to union picketing to pressure a state agency to cease doing business with a city); Local 3, IBEW (Mansfield Contracting Corp.), 205 N.L.R.B. 559 (1973) (holding a union violated Section 8(b)(4) by pressuring the City of New York not to do business with another contractor); see also ILA v. Allied Int’l, 456 U.S. 212, 224–26 (1982) (holding a union violated Section 8(b)(4) by coercing employers to cause them to cease handling foreign government products); Elec. Workers (B. B. McCormick & Sons), 150 N.L.R.B. 363, 374–75 (1964), enforced, 350 F.2d 791 (D.C. Cir. 1965) (holding a union violated Section 8(b)(4) by picketing to cause a cessation of business between contractors and federal agencies). 6 PLS.’ MOT. FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION NO. 2:17-CV-00382 11 Case 2:17-cv-00382-RAJ Document 13 Filed 03/13/17 Page 19 of 31 1 means is to compel a driver coordinator only to do business with union-represented drivers in Se- 2 attle, which necessarily means that it must “cease doing business” with drivers who wish to remain 3 nonunion. See p. 8, supra. Union coercion with this objective violates Section 8(b)(4)(ii)(B). 4 The Ordinance’s bargaining provisions grant a certified union authority to coerce an unwilling 5 driver coordinator to enter into a union agreement that governs the terms under which it can do 6 business with independent drivers in Seattle. SMC § 6.310.735.I. As discussed above, this hot car- 7 go agreement will violate Section 8(e). See pp. 7-9, supra. Consequently, the Ordinance’s bargain- 8 ing provisions, and especially its arbitration provision, empower unions to engage in conduct that 9 violates Sections 8(b)(4)(ii)(A) and (B). See NLRB v. Carpenters Dist. Council, 407 F.2d 804, 806 10 (5th Cir. 1969) (“Secondary coercion to force a neutral to add a condition . . . to its existing con- 11 tractual arrangement with the primary employer is an illegal [cease doing business] objective within 12 the meaning of [Section 8(b)(4)(A)].”); Local 32B-32J, SEIU v. NLRB, 68 F.3d 490, 495–96 (D.C. 13 Cir. 1995) (union demand for arbitration to compel employer to extend terms of a union contract 14 to its contractors violates Section 8(b)(4)(B)); Newspaper & Mail Deliverers, Union of N.Y. (N.Y. 15 Post), 337 N.L.R.B. 608 (2002) (same). 16 3. The Ordinance not only grants unions a means to coerce driver coordinators only to do 17 business with unionized drivers, but also a means to coerce drivers either to join the union or cease 18 doing business with driver coordinators. Union coercion with these objectives also violates both 19 Sections 8(b)(4)(ii)(A) and (B). 20 The Ordinance authorizes violations of Section 8(b)(4)(ii)(A) by empowering unions to 21 “threaten, coerce, or restrain” drivers and driver coordinators with the “object” of “forcing or re- 22 quiring any . . . self-employed person [drivers] to join any labor or employer organization.” 29 23 U.S.C. § 158(b)(4)(ii)(A). The Ordinance does so by empowering a union to become the sole and 24 exclusive representative of all drivers who do business with a driver coordinator, SMC § 6.310.110, PLS.’ MOT. FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION NO. 2:17-CV-00382 12 Case 2:17-cv-00382-RAJ Document 13 Filed 03/13/17 Page 20 of 31 1 and by allowing such a union to “mak[e] an agreement . . . to require membership of for-hire driv- 2 ers in the EDR’s entity/organization within 14 days of being hired, contracted with, or partnered 3 with by the driver coordinator,” SMC § 6.310.735.H.4 (emphasis added). 4 The Ordinance authorizes violations of Section 8(b)(4)(ii)(B) by empowering unions to 5 “threaten, coerce, or restrain” drivers with the “object” of “forcing or requiring any person [drivers] 6 to cease using . . . the products of any other producer, processor, or manufacturer [driver coordi- 7 nators], or to cease doing business with any other person [driver coordinators].” 29 U.S.C. § 8 158(b)(ii)(B). The Ordinance does so by granting unions the power to become the exclusive repre- 9 sentative of all drivers who do business with a driver coordinator, SMC § 6.310.110, which will 10 necessarily require that all drivers unwilling to accept that representation “ceas[e] using . . . the 11 products of” that driver coordinator, namely its driving app; and to “cease doing business” with that 12 driver coordinator. For example, if Teamsters Local 117 becomes the exclusive representative of 13 all drivers who do business with Uber, then all drivers who do not want to be Teamsters will have 14 to cease using Uber’s driving app and cease doing business with Uber. 15 In short, the Ordinance gives unions the power to coerce both drivers and driver coordinators 16 to cease doing business with one another, except under the aegis of a union’s representation and 17 contract. Section 8(b)(4) prohibits coercive union conduct with these objectives. The Ordinance 18 thus regulates conduct that the NLRA arguably prohibits, and is preempted under Garmon. 19 D. The Ordinance Authorizes Unlawful Secondary Union Conduct. 20 1. Sections 8(e) and 8(b)(4) have been construed only to prohibit union conduct that has “a 21 secondary objective, as opposed to a primary objective of protecting the work performed by the 22 employees of the employer bound by the contractual proviso.” Carpenters Dist. Council, 310 23 N.L.R.B. at 1025. A secondary objective is where a union seeks to cause one party (the “second- 24 ary” party) to cause another party to capitulate to union demands. See NLRB v. Local 825, Int’l PLS.’ MOT. FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION NO. 2:17-CV-00382 13 Case 2:17-cv-00382-RAJ Document 13 Filed 03/13/17 Page 21 of 31 1 Union of Op. Eng’rs (Burns & Roe, Inc.), 400 U.S. 297, 302–03 (1971). A primary objective is 2 where the union’s “agreement or its maintenance is addressed to the labor relations of the contract- 3 ing employer vis-a-vis his own employees.” Nat’l Woodwork, 386 U.S. at 645 (footnote omitted). 4 By way of example, Section 8(e) does not bar primary agreements containing “[w]ork preserva- 5 tion clauses, also known as union standards clauses, [which] prohibit an employer from subcon- 6 tracting work normally performed by union employees to any employer who pays his employees 7 less than union wages.” NLRB v. Hotel & Rest. Emps. Union Local 531, 623 F.2d 61, 67 (9th Cir. 8 1980). By contrast, “a union signatory clause . . . [, which] focuses on union affiliation by prohibit- 9 ing an employer from subcontracting work to any employer not signatory to or approved by the 10 union,” is a secondary agreement barred by Section 8(e). Id.; see p. 7-8 & n.3, supra. 11 2. The Ordinance authorizes unlawful secondary activity because “unionization of . . . inde- 12 pendent contractors” is a “secondary purpose.” Teamsters Local 525, 773 F.2d at 924–25 (7th Cir. 13 1985). Indeed, union organizing is the epitome of a secondary objective. See Connell Constr. v. 14 Plumbers & Steamfitters Local 100, 421 U.S. 616, 632 (1975); Assoc. Gen. Contractors (Cal. 15 Dump Truck), 280 N.L.R.B. 698, 701–02 (1986). It is for this reason that union signatory re- 16 quirements generally, and hot cargo requirements in particular, violate Sections 8(e) and/or 8(b)(4). 17 See pp. 7-10, ns.3-5 supra (collecting cases). 18 To address the issue from the other angle, the Ordinance cannot facilitate a union’s pursuit of 19 a primary objective because “the touchstone [of work preservation] is whether the agreement or its 20 maintenance is addressed to the labor relations of the contracting employer vis-à-vis his own em- 21 ployees.” Nat’l Woodwork, 386 U.S. at 645 (emphasis added). By its terms, “[t]he provisions of 22 this ordinance do not apply to drivers who are employees under 29 U.S.C. § 152(3).” Ordinance, 23 § 6 (emphasis added). The Ordinance applies only to independent contractors, which suggests a 24 secondary purpose. See Local 419, Carpet Layers v. NLRB., 467 F.2d 392, 399-401 (D.C. Cir. PLS.’ MOT. FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION NO. 2:17-CV-00382 14 Case 2:17-cv-00382-RAJ Document 13 Filed 03/13/17 Page 22 of 31 1 1972) (“The finding of an independent contractor relationship, while not always conclusive, is nev- 2 ertheless of great importance in determining the issue of ‘secondary’ / ‘primary’ status under sec- 3 tion 8(b)(4)(B)” because an independent contractor is a separate party by definition); Local 814, 4 Teamsters v. NLRB, 512 F.2d 564, 567 (D.C. Cir. 1975) (holding a clause that subjects drivers to a 5 union contract “is clearly a union signatory agreement violative of sections 8(b)(4) and 8(e) if the 6 owner-operators are not ‘employees,’” but independent contractors). 7 E. The Ordinance Is Also Preempted Because It Regulates Conduct That Sections 8(e) and 8(b)(4) Comprehensively Regulate. 8 Sections 8(e) and 8(b)(4) preempt the Ordinance not only because it authorizes union conduct 9 that arguably violates those provisions, but also for a broader reason: the Ordinance regulates a 10 field of conduct governed by Sections 8(e) and 8(b)(4). With these provisions, Congress compre11 hensively regulated the manner and means by which unions can and cannot interfere with business 12 relationships between independent parties in pursuit of union goals. See Nat’l Woodwork, 386 13 U.S. at 619–33 (discussing legislative purpose of Sections 8(b)(4) and 8(e)). As noted above, Con14 gress chose to prohibit certain “secondary” union tactics, like hot cargo agreements, but to allow 15 certain “primary” union tactics, like work preservation agreements. 16 Garmon prohibits localities from regulating conduct governed by the NLRA’s “integrated 17 scheme of regulation.” Gould, 475 U.S. at 287. That is exactly what the Ordinance does: it regu18 lates the manner and means by which unions can interfere with and control the business relation19 ship between two independent parties—drivers and driver coordinators—in pursuit of union organi20 zational objectives. The Ordinance thereby impermissibly “interfere[s] with the detailed system 21 Congress has created for regulating organizational techniques,” Connell Constr., 421 U.S. at 636, 22 and is preempted, see id. at 633–37 (holding, in case involving secondary union activity causing 23 24 PLS.’ MOT. FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION NO. 2:17-CV-00382 15 Case 2:17-cv-00382-RAJ Document 13 Filed 03/13/17 Page 23 of 31 1 one party to pressure another party to unionize, that the NLRA preempts “use of state antitrust law 2 to regulate union activities in aid of organization”). 3 This conclusion remains inescapable even if one were to assume, arguendo, that the union 4 conduct facilitated by the Ordinance does not violate Sections 8(e) or 8(b)(4). The reason is that 5 Lodge 76, Machinists prohibits localities from regulating lawful “economic weapons” and means of 6 “self-help” that Congress intended to be “unregulated” and “left to be controlled by the free play of 7 economic forces.’” 427 U.S. at 140, 147–48. This includes union tactics that are lawful under Sec- 8 tion 8(b)(4). See Garner v. Teamsters, Local Union No. 776, 346 U.S. 485, 499–500 (1953) (hold- 9 ing NLRA’s prescription on specified types of picketing implies that other picketing is free from 10 state regulation); Local 20, Teamsters Union v. Morton, 377 U.S. 252, 259-60 (1964) (holding fed- 11 eral law preempts enforcement of state law that penalized a union for persuading employers not to 12 do business with a company in a manner that did not violate Section 8(b)(4)). Thus, to the extent 13 the Ordinance facilitates union tactics permitted under Sections 8(e) and 8(b)(4) to pressure drivers 14 and driver coordinators to accept union representation and a union contract, the NLRA still 15 preempts the Ordinance . 16 Taken together, the NLRA preempts the Ordinance under Garmon to the extent that it facili- 17 tates or regulates union conduct arguably prohibited by Sections 8(e) and 8(b)(4). Alternatively, the 18 NLRA preempts the Ordinance under Machinists to the extent that it facilitates and/or regulates 19 union tactics permitted by Sections 8(e) and 8(b)(4). Either way, the NLRA preempts the Ordi- 20 nance’s regulation of the manner and means by which unions can interfere with the business rela- 21 tionship between independent drivers and driver coordinators. 22 II. The Ordinance Violates Drivers’ First Amendment Freedom of Speech and Association. 23 24 The Ordinance’s impact on drivers’ First Amendment rights becomes readily apparent simply by describing what the Ordinance requires. It calls for transferring Party A’s (drivers) right to speak PLS.’ MOT. FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION NO. 2:17-CV-00382 16 Case 2:17-cv-00382-RAJ Document 13 Filed 03/13/17 Page 24 of 31 1 and contract with Party B (driver coordinators) to Party C (a union), and for prohibiting Party A 2 and B from otherwise speaking and contracting with one another. The government cannot forcibly 3 transfer a citizen’s right to speak and contract to a third-party without a compelling reason for so 4 doing. Unless the City can prove that its Ordinance satisfies First Amendment scrutiny—which it 5 cannot—the Ordinance is unconstitutional. 6 The Ordinance imbues an exclusive driver representative with two authorities that impinge on 7 drivers’ First Amendment freedoms. The first is that the union becomes “the sole and exclusive 8 representative of all for-hire drivers operating within the City for a particular driver coordinator.” 9 SMC § 6.310.110 (emphasis added). The phrase “sole and exclusive representative” means that no 10 other representation is permitted. Drivers individually can neither speak nor deal with a driver co- 11 ordinator on their own behalf or through any other representative, nor can the parties agree to alter 12 the terms of their business relationship without going through the union. SMC § 6.310.735.J.3. Ex- 13 clusive representation “extinguishes the individual employee’s power to order his own relations 14 with his employer and creates a power vested in the chosen representative to act in the interests of 15 all employees.” NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 180 (1967). 16 The second authority is that an exclusive driver representative is “authorized to negotiate, ob- 17 tain and enter into a contract that sets forth terms and conditions of work applicable to all of the 18 for-hire drivers employed by that driver coordinator.” SMC § 6.310.110 (emphasis added). In oth- 19 er words, a certified representative is empowered to speak and contract for all drivers, regardless of 20 whether they individually approve of that speech and contract. A represented individual “may disa- 21 gree with many of the union decisions but is bound by them.” Allis-Chalmers, 388 U.S. at 180; see 22 14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009) (holding that union representatives contractually 23 can agree to waive individuals right to bring discrimination claims in court). 24 PLS.’ MOT. FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION NO. 2:17-CV-00382 17 Case 2:17-cv-00382-RAJ Document 13 Filed 03/13/17 Page 25 of 31 1 The City will impinge on Plaintiff Drivers’ speech and associational rights by involuntarily 2 stripping them of their right to speak and contract with Uber or Lyft, and then transferring their 3 rights to an association the drivers oppose. The Supreme Court has recognized “the sacrifice of 4 individual liberty that this system necessarily demands.” Pyett, 556 U.S. at 271; see Vaca v. Sipes, 5 386 U.S. 171, 182 (1967) (noting that “[t]he collective bargaining system . . . of necessity subordi- 6 nates the interests of an individual employee to the collective interests of all employees in a bar- 7 gaining unit”); Am. Commc’ns Ass’n v. Douds, 339 U.S. 382, 401 (1950) (holding “individual em- 8 ployees are required by law to sacrifice rights which, in some cases, are valuable to them” under 9 exclusive representation). As the Eleventh Circuit stated when addressing whether exclusive repre- 10 sentation by a union threatened an employee with associational injury: “regardless of whether [the 11 employee] can avoid contributing financial support to or becoming a member of the union[,] . . . 12 its status as his exclusive representative plainly affects his associational rights,” because “[i]f [the 13 union] is certified as the majority representative of . . . employees, [the employee] will have been 14 thrust unwillingly into an agency relationship” with a union that may pursue policies with which he 15 disagrees. Mulhall v. UNITE HERE Local 355, 618 F.3d 1279, 1286–87 (11th Cir. 2010). 16 While exclusive representation “amounts to ‘compulsory association,’ . . . that compulsion ‘has 17 been sanctioned as a permissible burden on employees’ free association rights,’ based on a legisla- 18 tive judgment that collective bargaining is crucial to labor peace.” Id. (quoting Acevedo–Delgado v. 19 Rivera, 292 F.3d 37, 42 (1st Cir. 2002) (emphasis added); see Abood v. Detroit Bd. of Educ., 431 20 U.S. 209, 220–21, 224 (1977) (holding that government’s interest in labor peace justifies exclusive 21 representation of employees); Harris, 134 S. Ct. at 2631 (same). 22 The question here, then, becomes whether the First Amendment injury that exclusive repre- 23 sentation inflicts on independent contractors is justified by a countervailing government interest. As 24 the Supreme Court explained in Knox v. SEIU, Local 1000, mandatory associations are “exceedPLS.’ MOT. FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION NO. 2:17-CV-00382 18 Case 2:17-cv-00382-RAJ Document 13 Filed 03/13/17 Page 26 of 31 1 ingly rare because . . . [they] are permissible only when they serve a ‘compelling state interes[t] . . . 2 that cannot be achieved through means significantly less restrictive of associational freedoms.’” 567 3 U.S. 298, 4 (1984)); see O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 714-15 (1996). 5 , 132 S. Ct. 2277, 2289 (2012) (quoting Roberts v. U.S. Jaycees, 468 U.S. 609, 623 The regime of exclusive representation that the Ordinance imposes on independent drivers 6 fails this exacting scrutiny, as Harris held that the “labor peace” interest that justifies exclusive rep- 7 resentation of employees did not apply to independent personal assistants who were not full- 8 fledged state employees. 134 S. Ct. at 2640. The Harris Court reasoned that [1] “any threat to la- 9 bor peace is diminished because the personal assistants do not work together in a common state 10 facility but instead spend all their time in private homes,” id.; [2] “[f]ederal labor law reflects the 11 fact that the organization of household workers like the personal assistants does not further the in- 12 terest of labor peace,” as such individuals are “excluded from coverage under the [NLRA],” id.; 13 and [3] the union had limited authority under state law, given the absence of an employment rela- 14 tionship, id.; see also id. at 2636–38. So too here, drivers do not work together in a common facili- 15 ty, but in their own vehicles; independent contractors are excluded from the NLRA’s coverage, 29 16 U.S.C. § 152(3); and there is no employment relationship. Under Harris, the labor peace interest 17 does not justify the collectivization of independent drivers. 18 In any event, it is the City’s burden to prove that its Ordinance satisfies First Amendment scru- 19 tiny, and not the drivers’ burden to prove that it does not. See U.S. v. Playboy Entm’t Grp., Inc., 20 529 U.S. 803, 816 (2000). Absent a showing by the City that its Ordinance serves a “compelling 21 state interes[t] . . . that cannot be achieved through means significantly less restrictive of associa- 22 tional freedoms[,]’” Knox, 567 U.S. at 23 623), Plaintiff Drivers are likely to succeed on the merits of their First Amendment claim. , 132 S. Ct. at 2289 (quoting Roberts, 468 U.S. at 24 PLS.’ MOT. FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION NO. 2:17-CV-00382 19 Case 2:17-cv-00382-RAJ Document 13 Filed 03/13/17 Page 27 of 31 1 2 III. The Driver’s Privacy Protection Act Preempts the Ordinance’s Disclosure Requirements. The City is requiring that, by April 3, Uber and Lyft disclose to Teamsters Local 117 qualified 3 drivers’ personal information , including their “driver’s license number” and “for-hire driver li- 4 cense/permit number.” FHDR-1, p.3. These compelled disclosures will violate the DPPA, which 5 makes it “[1] unlawful for any person knowingly to obtain or disclose personal information, [2] 6 from a motor vehicle record, for [3] any use not permitted under section 2721(b) of this title.” 18 7 U.S.C. § 2722(a). All three elements are satisfied here. 8 First, the Ordinance requires a “person knowingly to obtain or disclose personal information,” 9 id., as it compels driver coordinators, such as Uber and Lyft, to disclose information to QDRs, 10 such as Teamsters Local 117, who will then obtain that information. See SMC § 6.310.735.D. 11 That information is “personal information” under the DPPA, which “means information that iden- 12 tifies an individual, including an individual’s . . . driver identification number, name, address (but 13 not the 5-digit zip code), [and] telephone number.” 18 U.S.C. § 2725(3); compare FHDR-1, p.3 14 (listing information that must be disclosed under the Ordinance). 15 Second, the personal information that driver coordinators must disclose under the Ordinance 16 is, in whole or in part, obtained from a “motor vehicle record,” which “means any record that per- 17 tains to a motor vehicle operator’s permit, motor vehicle title, motor vehicle registration, or identi- 18 fication card issued by a department of motor vehicles,” 18 U.S.C. § 2725(3), the latter term mean- 19 ing a driver’s license, see Pavone v. Law Offices of Anthony Mancini, Ltd., No. 15 C 1538, 2016 20 WL 4678311, at *4 (N.D. Ill. Sept. 7, 2016). The “driver’s license number” and “for-hire driver 21 license/permit number” that must be disclosed under the Ordinance, FHDR-1, p.3, necessarily are 22 from motor vehicle records. The driver’s license numbers, in particular, come from the driver’s 23 licenses that prospective drivers submit to Uber and Lyft to use their respective ride-referral apps. 24 Uber and Lyft likely obtain other information about drivers from their submitted licenses, and PLS.’ MOT. FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION NO. 2:17-CV-00382 20 Case 2:17-cv-00382-RAJ Document 13 Filed 03/13/17 Page 28 of 31 1 from the vehicle registrations that Uber and Lyft have so that they can comply with SMC § 2 6.310.260.A.2.g. 3 Finally, the Ordinance’s required disclosure of qualified drivers’ personal information is for a 4 “use not permitted under section 2721(b).” 18 U.S.C. § 2722(a). “The DPPA lists fourteen per- 5 missible purposes in § 2721(b) and union organizing is not one of them.” Pichler, 542 F.3d at 396 6 (emphasis added) (holding that a union violated DPPA by obtaining information from motor vehi- 7 cle records about individuals it targeted for unionization); cf. McDonough v. Anoka Cnty., 799 8 F.3d 931, 950 (8th Cir. 2015) (holding that “a police officer’s union activities are not within his or 9 her government duties” for purposes of DPPA exemptions). The Ordinance requires that “QDRs 10 shall use driver contact information for the sole purpose of contacting drivers to solicit their inter- 11 est in being represented by the QDR.” SMC § 6.310.735.E (emphasis added). In other words, the 12 information solely must be used for organizing purposes. This is not a permissible use under 13 DPPA Section 2721(b). 14 The Ordinance thereby requires the disclosure of personal information that is unlawful under 15 DPPA Section 2722(a), and that will violate nine Plaintiff Drivers’ rights under DPPA Section 16 2724, 18 U.S.C. § 2724. Pls. Decl. ¶ 7. Consequently, the DPPA preempts the Ordinance’s dis- 17 closure requirements. See Rios v. Direct Mail Express, Inc., 435 F. Supp. 2d 1199, 1205–06 (S.D. 18 Fla. 2006) (DPPA preempts inconsistent state law). 19 IV. The Remaining Winter Factors Support Issuance of a Preliminary Injunction. 20 “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably 21 constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). Given that the City has 22 no countervailing constitutional interests, and that the public interest supports enforcing First 23 Amendment rights, a preliminary injunction should issue if the Court finds Plaintiff Drivers likely 24 to succeed on their First Amendment claim. PLS.’ MOT. FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION NO. 2:17-CV-00382 21 Case 2:17-cv-00382-RAJ Document 13 Filed 03/13/17 Page 29 of 31 1 A preliminary injunction should also issue if the Court finds merit to Plaintiff Drivers’ preemp- 2 tion claims. Am. Trucking Asso’ns v. City of Los Angeles, 559 F.3d 1046 (9th Cir. 2009) is instruc- 3 tive. There, the Ninth Circuit found the Federal Aviation Administration Authorization Act 4 preempted a port’s requirement that truck drivers not be independent contractors, but employees 5 (and thus susceptible to unionization). Id. at 1053. The Court held that the district court abused its 6 discretion by not preliminarily enjoining this and related requirements because they threatened the 7 drivers with irreparable injury, as they would be forced to adhere to unconstitutional conditions 8 and alter their manner of doing business, id. at 1057–59, and because the balance of equities and 9 public interest militated in favor of an injunction, id. at 1059–61. 10 The Ordinance threatens drivers with the same irreparable harm—to be unconstitutionally 11 compelled to alter their means of doing business—as unionization will compel drivers either to 12 abide by a Teamsters’ contract or to cease doing business with Uber or Lyft. The balance of equi- 13 ties weighs in favor of enjoining this imposition because unions have no inherent right exclusively 14 to represent employees, much less independent contractors. Smith v. Ark. State Highway Emps., 15 Local 1315, 441 U.S. 463, 465–66 (1979) (per curiam). The overriding public interest is Congress’ 16 decision to outlaw hot cargo requirements in Sections 8(e) and 8(b)(4), given “the Constitution’s 17 declaration that federal law is to be supreme.” Am. Trucking Ass’ns, 559 F.3d at 1060. 18 In fact, the campaign the Ordinance empowers Teamsters Local 117 to wage against Plaintiff 19 Drivers, Uber, and Lyft will irreparably violate their rights under Section 8(b)(4), irrespective of 20 whether the Teamsters actually succeed in forcing Uber and Lyft only to do business with drivers 21 subject to the Teamsters’ representation and contracts. The reason is that Section 8(b)(4) protects 22 persons and the public from union threats, coercion and restraints that have a cease-doing-business 23 objective, 29 U.S.C. § 158(b)(4), and not just from union attainment of this objective. “[T]he statu- 24 tory proscription of secondary boycotts contemplates both the maintenance of an unhindered PLS.’ MOT. FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION NO. 2:17-CV-00382 22 Case 2:17-cv-00382-RAJ Document 13 Filed 03/13/17 Page 30 of 31 1 stream of commerce . . . and the shielding of secondary businesses from unlawful intrusions.” Pye 2 v. Teamsters Local Union No. 122, 61 F.3d 1013, 1024 (1st Cir. 1995). To this end, Congress en- 3 acted Section 10(l) of the NLRA, which requires that a regional office of the National Labor Rela- 4 tions Board seek temporary injunctive relief if it finds cause to believe that a union is violating Sec- 5 tions 8(b)(4) or 8(e). 29 U.S.C. § 160(l). 6 8 Section 10(l) reflects a Congressional determination that the unfair labor practices enumerated therein are so disruptive of labor-management relations and threaten such danger of harm to the public that they should be enjoined whenever a district court has been shown reasonable cause to believe in their existence and finds that the threatened harm or disruption can best be avoided through an injunction. 9 Retail Clerks Union, Local 137 v. Food Emp’rs Council, Inc., 351 F.2d 525, 531 (9th Cir. 1965). 10 Congress thereby sought to stop union campaigns that arguably violate Section 8(b)(4) before they 11 reach fruition. See Danielson v. Teamsters Local 814, 355 F. Supp. 1293 (S.D.N.Y. 1973) (issuing 12 a Section 10(l) injunction to stop a Teamsters local from pressuring a company to compel truck 13 drivers to accept Teamsters’ representation and contract because the drivers likely are independent 14 contractors).7 Consistent with this purpose, the Ordinance immediately should be enjoined. 7 15 This especially is true given that the Ordinance requires Uber and Lyft to give Teamsters Lo- 16 cal 117 qualified drivers’ personal information—including their names, addresses, email addresses, 17 phone numbers, and drivers’ license numbers, FHDR-1, p.3—by April 3, 2017. This imminent 18 disclosure threatens drivers with irreparable harm to their privacy interests under the DPPA. 19 20 21 22 23 24 See also Retail Clerks Union, 351 F.2d at 531-33 (issuing a Section 10(l) injunction to stop union from using arbitration to cause company to enforce union signatory agreement); Danielson v. Int’l Org. of Masters, Mates & Pilots, 521 F.2d 747 (2d Cir. 1975) (same); Ley v. Rochester Reg’l Joint Bd., Local 14A, 59 F. 7 Supp. 3d 565, 572-73 (W.D.N.Y. 2014) (same). PLS.’ MOT. FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION NO. 2:17-CV-00382 23 Case 2:17-cv-00382-RAJ Document 13 Filed 03/13/17 Page 31 of 31 1 2 CONCLUSION The Court should grant Plaintiff Drivers’ Motion for a Temporary Restraining Order or Pre- 3 liminary Injunction, andenjoin the City from implementing or enforcing the Ordinance pending 4 final judgment in this case. 5 Dated: March 10, 2017. 6 s/James G. Abernathy James G. Abernathy, WSBA #48801 7 s/David M.S. Dewhirst David M.S. Dewhirst, WSBA # 48229 c/o Freedom Foundation P.O. Box 552 Olympia, WA 98507 (360) 956-3482 (360) 352-1874 (fax) JAbernathy@myfreedomfoundation.com DDewhirst@myfreedomfoundation.com 8 9 10 11 12 19 William L. Messenger (VA Bar No. 47179) (pro hac vice motion to be filed) Amanda K. Freeman (VA Bar No. 78497) (pro hac vice motion to be filed) c/o The National Right to Work Legal Defense Foundation, Inc. 8001 Braddock Road, Suite 600 Springfield, Virginia 22160 (703) 321-8510 (703) 321-9319 (fax) wlm@nrtw.org akf@nrtw.org 20 Attorneys for Plaintiffs 13 14 15 16 17 18 21 22 23 24 PLS.’ MOT. FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION NO. 2:17-CV-00382 24