Case: 17-35693, 12/22/2017, ID: 10700993, DktEntry: 32, Page 1 of 35 No. 17-35693 In the United States Court of Appeals For the Ninth Circuit DAN CLARK, et al., Plaintiffs-Appellants, v. CITY OF SEATTLE, et al., Defendants-Appellees. On Appeal from the United States District Court, Western District of Washington Appellants’ Reply Brief David M.S. Dewhirst James G. Abernathy c/o Freedom Foundation P.O. Box 552 Olympia, WA 98507 (360) 956-3482 (360) 352-1874 (fax) DDewhirst@freedomfoundation.com JAbernathy@freedomfoundation.com Counsel for Plaintiffs-Appellants William L. Messenger Amanda K. Freeman c/o National Right to Work Legal Defense Foundation, Inc. 8001 Braddock Road, Suite 600 Springfield, VA 22160 (703) 321-8510 (703) 321-9319 (fax) wlm@nrtw.org akf@nrtw.org Case: 17-35693, 12/22/2017, ID: 10700993, DktEntry: 32, Page 2 of 35 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ...................................................................................ii ARGUMENT ............................................................................................................1 I. NLRA Sections 8(b)(4) and 8(e) Preempt the Ordinance .............................1 A. Drivers’ NLRA Preemption Claims Are Ripe for Adjudication ...............2 B. Sections 8(b)(4) and 8(e) Regulate Union Conduct Directed at Independent Contractors..........................................................................7 C. The Ordinance Facilitates Union Coercion with a Secondary “Cease Doing Business” Objective under Sections 8(b)(4) and 8(e)...................12 D. Chipman and Production Workers Prove the Ordinance Regulates Conduct the NLRA Regulates and Thus Is Preempted .........................19 E. The Ordinance Is Preempted under Connell and Garner .....................24 II. The Ordinance Violates the First Amendment ...........................................24 CONCLUSION .......................................................................................................27 CERTIFICATE OF COMPLIANCE .....................................................................29 CERTIFICATE OF SERVICE ...............................................................................29 i Case: 17-35693, 12/22/2017, ID: 10700993, DktEntry: 32, Page 3 of 35 TABLE OF AUTHORITIES Page(s) Cases Air Line Pilots Ass’n v. NLRB, 525 F.3d 862 (9th Cir. 2008) ............................ 10, 11 Assoc. Gen. Contractors of Cal., Inc. v. NLRB, 514 F.2d 433 (9th Cir. 1975) ..........3 Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289 (1979) .......................25 Bhd. of R.R. Trainmen v. Jacksonville Terminal Co., 394 U.S. 369 (1969) ............11 Blasters, Drillrunners, & Miners Union, Local 29 (RWKS Comstock), 344 N.L.R.B. 751 (2005) ......................................................................................15 Bldg. & Constr. Trades Council v. NLRB, 328 F.2d 540 (D.C. Cir. 1964), aff’d sub nom. Shepard v. NLRB, 459 U.S. 344 (1983) ........................................17 Bldg. Material & Dump Truck Drivers, Teamsters Local Union No. 36 v. NLRB, 669 F.2d 759 (D.C. Cir. 1981) ..............................................................13 Carpenters Dist. Council of Ne. Ohio (Alessio Constr.), 310 N.L.R.B. 1023 (1993) .....................................................................................14 Central Pa. Reg’l Council of Carpenters (Novingers, Inc.), 337 N.L.R.B. 1030 (2002) .....................................................................................15 Chipman Freight Servs. v. NLRB, 843 F.2d 1224 (9th Cir. 1988) .................... passim Connell Constr. Co. v. Plumbers & Steamfitters Local Union No. 100, 421 U.S. 616 (1975) ................................................................................. 1, 5, 18, 24 Garner v. Teamsters, Local Union No. 776, 346 U.S. 485 (1953) ....................... 2, 24 Golden State Transit Corp. v. City of Los Angeles, 475 U.S. 608 (1986) ..................5 Harris v. Quinn, 134 S. Ct. 2618 (2014)...................................................................27 IBEW (B. B. McCormick & Sons, Inc.), 150 N.L.R.B. 363 (1964) ..........................8 IBEW Local 437 (Dimeo Constr. Co.), 180 N.L.R.B. 420 (1969) .................... 13, 17 ii Case: 17-35693, 12/22/2017, ID: 10700993, DktEntry: 32, Page 4 of 35 TABLE OF AUTHORITIES cont. Page(s) Idaho Bldg. & Constr. Trades Council v. Inland Pac. Chapter, ABC, 801 F.3d 950 (9th Cir. 2015) .................................................................................22 ILA v. Allied Int’l, Inc., 456 U.S. 212 (1982) .............................................................8 ILA v. Davis, 476 U.S. 380 (1986) ...........................................................................22 Int’l Ass’n of Bridge, Structural & Ornamental Iron Workers (Sw. Materials & Supply, Inc.), 328 N.L.R.B. 934 (1999)......................................15 Int’l Org. of Masters, Mates & Pilots of Am., Inc., 144 N.L.R.B. 1172 (1963), enf’d, 351 F.2d 771 (D.C. Cir. 1965) .......................................................................9 Local 20, Teamsters Union v. Morton, 377 U.S. 252 (1964) ........................... 2, 5, 23 Local 520, Int’l Union of Operating Eng’rs (Massman Constr. Co.), 327 N.L.R.B. 1257 (1999) .....................................................................................15 Lodge 76, Int’l Ass’n of Machinists v. Wis. Emp’t Relations Comm’n, 427 U.S. 132 (1976) ................................................................................. 5, 6, 23, 24 Marine Eng’rs Beneficial Ass’n v. Interlake S.S. Co., 370 U.S. 173 (1962)....... passim Minn. State Bd. v. Knight, 465 U.S. 271 (1984) ................................................. 25, 26 Nat’l Marine Eng’rs Beneficial Ass’n v. NLRB, 274 F.2d 167 (2d Cir. 1960) .......8, 9 Nat’l Maritime Union (Standard Oil Co.), 121 N.L.R.B. 208 (1958), enf’d, Nat’l Marine Eng’rs Beneficial Ass’n v. NLRB, 274 F.2d 167 (2d Cir. 1960)...........................................................................................................9 NLRB v. Carpenters Dist. Council of New Orleans & Vicinity, 407 F.2d 804 (5th Cir. 1969) .................................................................................16 NLRB v. Denver Bldg. Trades Council, 341 U.S. 675 (1951) .................................22 NLRB v. HERE Local 531, 623 F.2d 61 (9th Cir. 1980) ............................. 15, 17, 21 NLRB v. Int’l Longshoremen’s Ass’n, 447 U.S. 490 (1980) ....................................17 iii Case: 17-35693, 12/22/2017, ID: 10700993, DktEntry: 32, Page 5 of 35 TABLE OF AUTHORITIES cont. Page(s) NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937)......................................26 NLRB v. Teamsters Local 525, 773 F.2d 921 (7th Cir. 1985) ........................... 13, 18 Pac. Mar. Ass’n v. ILA Local 63, 198 F.3d 1078 (9th Cir. 1999) .............................11 Pac. Mar. Ass’n v. ILA Local 63, No. 98-55453, 1998 WL 34103950 (9th Cir. 1998)........................................................................................................12 Prod. Workers Union, Local 707 (Checker Taxi Co.), 273 N.L.R.B. 1178 (1984), vacated on other grounds, 793 F.2d 323 (D.C. Cir. 1986) .................... 9, 20 Prod. Workers Union, Local 707 v. NLRB, 793 F.2d 323 (D.C. Cir. 1986) .... passim Rumsfeld v. Forum for Acad. & Institutional Rights, 547 U.S. 47 (2006) ................27 San Diego Bldg. Trades Council Local 2020 v. Garmon, 359 U.S. 236 (1959) ................................................................................. 1, 5, 23, 24 Sheet Metal Workers, Local Union No. 91 (Schebler Co.), 294 N.L.R.B. 766 (1989) .......................................................................................18 Sheet Metal Workers, Local Union No. 91 v. NLRB, 905 F.2d 417 (D.C. Cir. 1990) ................................................................................................. 4, 19 Sierra Vista Hosp., Inc., 241 N.L.R.B. 631 (1979).....................................................8 Teamsters Local 221, 222 N.L.R.B. 423 (1976).......................................................21 Teamsters Local 814 (Santini Bros., Inc.), 208 N.L.R.B. 184 (1974) ......................21 UFCW Local 367, 333 N.L.R.B. 771 (2001) ....................................................... 3, 22 United States v. United Foods, Inc., 533 U.S. 405 (2001) ........................................26 W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943)....................................25 Constitution U.S. CONST. amend I ............................................................................. 24, 25, 26, 27 iv Case: 17-35693, 12/22/2017, ID: 10700993, DktEntry: 32, Page 6 of 35 TABLE OF AUTHORITIES cont. Page(s) Statutes 29 U.S.C. § 152(1) ......................................................................................................7 29 U.S.C. § 152(5) .................................................................................... 8, 10, 12, 20 29 U.S.C. § 158(b) .......................................................................................... 8, 10, 12 29 U.S.C. § 158(b)(4) ........................................................................................ passim 29 U.S.C. § 158(b)(4)(A) ........................................................................................5, 9 29 U.S.C. § 158(b)(4)(B) ............................................................................................3 29 U.S.C. § 158(b)(4)(ii) .........................................................................................3, 6 29 U.S.C. § 158(b)(4)(ii)(A) ........................................................................ 2, 7, 10, 16 29 U.S.C. § 158(b)(4)(ii)(B) ........................................................................................2 29 U.S.C. § 158(e) ............................................................................................. passim Seattle Municipal Code SMC § 6.310.110 ................................................................................................ 13, 22 SMC § 6.310.735.D................................................................................................ 2, 4 SMC § 6.310.735.F ................................................................................................ 2, 3 SMC § 6.310.735.H.2 ..............................................................................................26 SMC § 6.310.735.I .....................................................................................................3 SMC § 6.310.735.K ................................................................................................ 2, 4 SMC § 6.310.735.M ...................................................................................................4 v Case: 17-35693, 12/22/2017, ID: 10700993, DktEntry: 32, Page 7 of 35 ARGUMENT I. NLRA Sections 8(b)(4) and 8(e) Preempt the Ordinance. The City has failed to rebut the fact at the heart of this case: NLRA Sections 8(b)(4) and 8(e) regulate campaigns by labor organizations (like Teamsters Local 117) to coerce employers (like Uber or Lyft) to agree only to do business with independent contractors (like for-hire drivers) who accept a union’s representation and contract. A union campaign with such a “hot cargo” objective is the archetype of Sections 8(b)(4) and 8(e) violations. And, even if it were not, and this were somehow a permissible union objective, the fact remains that Sections 8(b)(4) and 8(e) regulate such union campaigns, as the City itself proves with its citations to Chipman Freight Services v. NLRB, 843 F.2d 1224 (9th Cir. 1988), and Production Workers Union, Local 707 v. NLRB, 793 F.2d 323 (D.C. Cir. 1986). Either way, Seattle cannot regulate this union conduct so as to assist the Teamsters with attaining the above-described objective. The NLRA preempts state and federal laws that regulate union conduct that arguably violates Sections 8(b)(4) and 8(e). See Connell Constr. Co. v. Plumbers & Steamfitters Local Union No. 100, 421 U.S. 616, 636–37 (1975); Marine Eng’rs Beneficial Ass’n v. Interlake S.S. Co., 370 U.S. 173, 176 (1962); San Diego Bldg. Trades Council Local 2020 v. Garmon, 359 U.S. 236, 246 (1959). The NLRA also preempts laws that regulate union conduct arguably permitted by Section 8(b)(4). See Local 20, Teamsters Union v. Morton, 1 Case: 17-35693, 12/22/2017, ID: 10700993, DktEntry: 32, Page 8 of 35 377 U.S. 252, 259–60 (1964); Garner v. Teamsters, Local Union No. 776, 346 U.S. 485 (1953). Under either analysis, the NLRA preempts the Ordinance. A. Drivers’ NLRA Preemption Claims Are Ripe for Adjudication. 1. The City’s ripeness argument not only is predicated on ignoring the Drivers’ primary argument for why their claims are actionable, but on asserting that the argument was not even made. The City asserts “Plaintiffs do not allege that the QDR has engaged in any other form of threat, coercion, or restraint—let alone that the Or- dinance authorizes or mandates such conduct (as it would have to in order to be preempted by Section 8(b)(4)).” City Br. 22 (emphasis added). The City apparently missed the following section of the Drivers’ brief: The Ordinance authorizes conduct that Sections 8(b)(4)(ii)(A) and (B) prohibit because it empowers unions to “coerce[ ] or restrain” driver coordinators with the “object” of “(A) forcing or requiring any [driver coordinator] . . . to enter into any agreement which is prohibited by [Section 8(e)]” and “(B) forcing or requiring [driver coordinators] . . . to cease doing business with any other [drivers].” 29 U.S.C. § 158(b)(4)(ii)(A) and (B). The Ordinance does so by granting unions legal authority to coerce driver coordinators with the object of requiring that they only do business in Seattle with drivers who the union represents and who are bound to the union’s contract. App. Br. 21 (emphasis added). The Drivers’ brief further explains that: [t]hese coercive means include the Ordinance’s card check process, the results of which are binding on drivers and driver coordinators, SMC § 6.310.735.F, as well as the Ordinance’s provisions empowering unions to force unwilling driver coordinators to turn over information about their drivers, SMC § 6.310.735.D, and not to take certain actions to oppose union campaigns, SMC § 6.310.735.K. The Ordinance’s bargaining provisions further grant a certified union the legal authority to coerce, by means of manda2 Case: 17-35693, 12/22/2017, ID: 10700993, DktEntry: 32, Page 9 of 35 tory arbitration, a driver coordinator to enter into an agreement with that union. SMC § 6.310.735.I. App. Br. 21–22; see also id. at 34–35 (explaining Section 8(b)(4) prohibits union coercion irrespective of whether the union attains a prohibited objective). The City has no response to the fact that the Ordinance’s organizing and penalty provisions empower unions to “threaten, coerce, or restrain” driver coordinators in pursuit of “object[s]” prohibited by Section 8(b)(4), 29 U.S.C. § 158(b)(4)(ii), namely that a driver coordinator only do business with union-represented drivers. Nor could the City rebut this proposition. “[W]hen Congress used ‘coerce’ in section 8(b)(4)(B) it did not intend to proscribe only strikes or picketing, but intended to reach any form of economic pressure of a compelling or restraining nature.” Associated Gen. Contractors of Cal., Inc. v. NLRB, 514 F.2d 433, 438 (9th Cir. 1975). “The proscription has been held to include such pressure as the filing of a grievance or resort to arbitration, where the object of doing so is to coerce a cessation of business.” UFCW Local 367, 333 N.L.R.B. 771, 781 (2001). The Ordinance provides unions with several statutory means to coerce driver coordinators not to do business in Seattle with nonunion drivers. This includes a certification process to compel driver coordinators only to do business with unionrepresented drivers. SMC § 6.310.735.F. It also includes provisions to assist unions 3 Case: 17-35693, 12/22/2017, ID: 10700993, DktEntry: 32, Page 10 of 35 with attaining certification, such as mandatory disclosures, SMC § 6.310.735.D,1 and penalties for driver coordinators who interfere with the unions’ campaign. SMC § 6.310.735.K. These provisions carry $10,000 daily penalties for violations, and are enforceable by unions through private causes of action. SMC § 6.310.735.M. These are coercive means within Section 8(b)(4)’s meaning. See Sheet Metal Workers, Lo- cal Union No. 91 v. NLRB, 905 F.2d 417, 424 (D.C. Cir. 1990) (holding union power to penalize employers that did not require their affiliates abide by a union agreement is coercive under Section 8(b)(4)). The City cannot hand unions a statutory cudgel to browbeat certain employers into only doing business with union-represented contractors without running afoul of Garmon preemption. See App. Br. 20–27. Indeed, Congress amended Section 8(b)(4) to prohibit unions from enlisting the aid of governmental bodies, as well as other non-NLRA entities, to compel one person to cease doing business with another person. Id. at 26–27. The City acknowledges that “after 1959, public employees could no longer lawfully be enlisted to carry out secondary boycotts.” City Br. 23–24 n.10. The City, however, bizarrely claims Section 8(b)(4) preemption claims only can be analyzed under Lodge 76, International Association of Machinists v. Wisconsin Employment Contrary to the City’s argument, City Br. 27–28, the injury the Drivers will suffer from the disclosures is related to their preemption claim, because the mandatorydisclosures are one of several ways the City seeks to assist Teamsters with a type of union campaign Section 8(b)(4) regulates. 4 1 Case: 17-35693, 12/22/2017, ID: 10700993, DktEntry: 32, Page 11 of 35 Relations Commission, 427 U.S. 132 (1976). City Br. 23–24 n.10.2 That argument ignores that Garmon itself held the NLRA preempted a state law’s application to a union’s “use of other pressures to force an agreement” that arguably violated Section 8(b)(4). 359 U.S. at 237, 246. Marine Engineers similarly held the NLRA preempted state regulation of a union campaign that “was of a kind arguably prohibited by § 8(b)(4)(A).” 370 U.S. at 176. Connell is to the same effect. 421 U.S. at 636–37. The Garmon doctrine unquestionably prohibits local governments, such as Seattle, from facilitating or regulating union conduct that arguably violates Section 8(b)(4). Alternatively, if the case is analyzed under the Machinists doctrine, the Ordinance is still preempted. The City cannot provide a union with additional weapons to pressure driver coordinators to bend to the union’s will. See App. Br. 27–29. This is true even if the union campaign the Ordinance facilitates were deemed to have a lawful primary objective. Id.; see Morton, 377 U.S. at 259–60. Under either Garmon or Machinists, the bottom line is that Seattle cannot assist the Teamsters with compelling Uber and Lyft only to do business with Teamstersrepresented drivers. If this is an impermissible secondary objective under Section 8(b)(4), which it is, then the Garmon doctrine prohibits the City from assisting the 2 Golden State Transit Corp. v. City of Los Angeles, 475 U.S. 608 (1986), does not support the City’s position. The Court held that “[w]e do not reach the question whether the city’s action in this case is pre-empted under Garmon, because Golden State and its supporting amici, including the NLRB, rely exclusively on the Machinists doctrine, and we find their argument persuasive.” Id. at 614 n.4. 5 Case: 17-35693, 12/22/2017, ID: 10700993, DktEntry: 32, Page 12 of 35 Teamsters with this unlawful campaign. If this is a permissible primary objective under Section 8(b)(4), then the Machinists doctrine preempts the City from providing the Teamsters with additional means to pressure drivers and driver coordinators. Either way, the City cannot, without running afoul of NLRA preemption, grant the Teamsters a statutory means to coerce driver coordinators only to do business with unionized drivers. Yet, that is what the City has done with its Ordinance. 2. Drivers’ challenge to the Ordinance is ripe because the City is poised to grant the Teamsters those statutory means. Section 8(b)(4) makes it unlawful for unions “to threaten, coerce, or restrain any person” in pursuit of prohibited objectives. 29 U.S.C. § 158(b)(4)(ii). The Teamsters have notified Uber and Lyft that it intends to unionize their drivers under the Ordinance. Order, ER 6. The City intends to enforce the Ordinance’s certification process at the Teamsters’ behest. The only thing stopping the City is this Court’s injunction. Accordingly, Drivers and driver coordinators both have been “threaten[ed]” with a City-assisted Teamsters’ campaign and are under imminent risk of actually being subjected to this “coerc[ive]” campaign. 29 U.S.C. § 158(b)(4)(ii). The Drivers’ claims that the NLRA preempts the City from assisting Teamsters, and other unions, with coercing drivers and driver coordinators only to do business with one another under the auspices of a union’s representation and contract are ripe for adjudication. 6 Case: 17-35693, 12/22/2017, ID: 10700993, DktEntry: 32, Page 13 of 35 B. Sections 8(b)(4) and 8(e) Regulate Union Conduct Directed at Independent Contractors. 1. Sections 8(b)(4) and 8(e) apply to union conduct directed against independent contractors. Both statutes protect any “person,” 29 U.S.C. §§ 158(b)(4), 158(e), which is a term that encompasses independent contractors, see id. at § 152(1) (defining “person” to include “one or more individuals”). In fact, Section 8(b)(4)(ii)(A) protects any “self-employed person.” Id. at § 158(b)(4). There are numerous Section 8(b)(4) and 8(e) cases that involved independent contractors generally, and independent-contractor drivers in particular. See App. Br. 19 (citing ten cases). This includes two cases the City relies upon: Chipman, 843 F.2d 1224, and Production Workers, 793 F.2d 323. Thus, union conduct to compel employers (like Uber and Lyft) to agree not to do business with nonunion independent contractors (like forhire drivers) is conduct well within Sections 8(b)(4)’s and 8(e)’s proscriptions. The City, nevertheless, maintains that Sections 8(b)(4) and 8(e) have no application whatsoever to union campaigns that target only independent contractors. City Br. 31–37. The reason, according to the City, is that a union does not act as a “labor organization” under the NLRA unless its conduct involves NLRA-covered employees. Id. That argument already has been refuted. App. Br. 37–41. It defies the definition of “labor organization” and governing case law. “The term ‘labor organization’ means any organization of any kind . . . in which employees participate and which exists for the purpose, in whole or in part, of deal7 Case: 17-35693, 12/22/2017, ID: 10700993, DktEntry: 32, Page 14 of 35 ing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.” 29 U.S.C. § 152(5) (emphasis added). An organization satisfies this definition if: (1) some NLRA-covered employees “participate” in it, and (2) a “part[ial]” purpose of the organization is dealing with employers. Nothing in this definition, or in Section 8(b)(4),3 requires a labor organization’s conduct to involve employees in order for it to remain a labor organization. Stated conversely, a labor organization does not cease being a labor organization whenever it targets individuals who are not NLRA employees. Consistent with the statutory definition, the Board long has held, “the determination [of] whether a labor union charged with an unfair labor practice under § 8(b) is a labor organization turns on whether employees participate in the organization charged and that, if they do, the union is a labor organization although all the workers of the particular employer whom it is seeking to represent are . . . not ‘employees.” IBEW (B. B. McCormick & Sons, Inc.), 150 N.L.R.B. 363, 370–72 (1964) (quoting Nat’l Marine Eng’rs Beneficial Ass’n (“NMEBA”) v. NLRB, 274 F.2d 167, 173 (2d Cir. 1960); see Sierra Vista Hosp., Inc., 241 N.L.R.B. 631, 632 (1979) (similar). In at least three cases, the Board has found unions whose picketing targeted individuals who were not NLRA employees to be labor organizations subject to Section 8(b)(4) because some employees participated in the overall union. See Prod. Workers Un3 See ILA v. Allied Int’l, Inc., 456 U.S. 212, 224–25 (1982) (holding that “[n]either is it a defense to the application of § 8(b)(4) that the reason for the ILA boycott was not a labor dispute with a primary employer but a political dispute with a foreign nation. Section 8(b)(4) contains no such limitation.”). 8 Case: 17-35693, 12/22/2017, ID: 10700993, DktEntry: 32, Page 15 of 35 ion, Local 707 (Checker Taxi Co.), 273 N.L.R.B. 1178, 1179 (1984), vacated on other grounds, 793 F.2d 323 (D.C. Cir. 1986); Int’l Org. of Masters, Mates & Pilots of Am., Inc. (“MMP”), 144 N.L.R.B. 1172, 1177 (1963), enf’d, 351 F.2d 771, 775 (D.C. Cir. 1965); Nat’l Maritime Union (Standard Oil Co.), 121 N.L.R.B. 208, 208– 09 (1958), enf’d, NMEBA, 274 F.2d 167. The Second and D.C. Circuits approved the Board’s interpretation in these Section 8(b)(4) cases. NMEBA, 274 F.2d at 173; Prod. Workers, 793 F.2d at 327; MMP, 351 F.2d at 775. In so doing, the courts rejected the argument the City makes here—i.e., that a union “could not be held responsible for a [Section 8(b)(4)] unfair labor practice as a ‘labor organization’ unless the [individuals] for whose benefit the secondary boycott had been effected were themselves ‘employees.’” MMP, 351 F.2d at 774. The D.C. Circuit held “[n]either the language nor the legislative history of section 8(b)(4)(A) warrants reading in a requirement that a ‘labor organization’ must act on behalf of ‘employee’ members in order to violate the ban on secondary boycotts.” Id. at 775. The Second Circuit similarly held “the fact that all the workers of the particular employer sought to be organized are [non-employee] supervisors has neither controlling nor even important evidentiary significance” under Section 8(b)(4). NMEBA, 274 F.2d at 173. Thus, in MMP, it was enough that 1.5% of the union’s membership consisted of NLRA employees to make it a labor organization subject to Section 8(b)(4). 351 F.2d at 776. 9 Case: 17-35693, 12/22/2017, ID: 10700993, DktEntry: 32, Page 16 of 35 The Supreme Court has held courts must defer to the NLRB’s position that “[t]he relevant unit of membership for determining what is a labor organization in a § 8(b) context is the entire union.” Marine Eng’rs Beneficial Ass’n, 370 U.S. at 183. The Supreme Court further held Section 8(b)(4) preempted enforcement of a state law to picketing that targeted individuals who were not NLRA employees (marine engineers), by a union that primarily represented such engineers, because the Board held that union to be a labor organization by virtue of it representing a few NLRAcovered employees in other contexts. Id. at 182–85. The City thus is flat wrong when it claims “[e]ven if a particular QDR or EDR happens to represent some NLRA-covered employees in other contexts—as Local 117 purportedly does here—that does not mean that QDR’s and EDR’s are ‘labor organizations in all circumstances.’” City Br. 33. It unequivocally means that. Any organization in which NLRA employees “participate,” and that exists “in whole or in part, [for] dealing with employers,” is a “labor organization” in all circumstances. 29 U.S.C. § 152(5). That includes for Sections 8(b)(4) purposes, even when the union’s conduct solely targets “self-employed person[s],” 29 U.S.C. § 158(b)(4)(ii)(A). The City’s contrary position is inconsistent with the statutory definition, Board law, appellate precedents, and the Supreme Court’s holding in Marine Engineers. 2. The City’s reliance on Air Line Pilots Ass’n (“ALPA”) v. NLRB, 525 F.3d 862 (9th Cir. 2008), is misplaced because that case did not concern whether a union was 10 Case: 17-35693, 12/22/2017, ID: 10700993, DktEntry: 32, Page 17 of 35 a labor organization. City Br. 34–37. The union there stipulated it was a labor organization because it represented a few NLRA employees. ALPA, 525 F.3d at 869–70. The issue in ALPA was which federal labor law—the NLRA or the Railway Labor Act (“RLA”)—governed a dispute involving parties subject to both statutes. Id. That question requires resolving “a conflict between two independent and mutually exclusive federal labor schemes.” Bhd. of R.R. Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 376–77 (1969). The applicable rule is “‘when the traditional railway labor organizations act on behalf of employees subject to the [RLA] in a dispute with carriers subject to the [RLA], the organizations must be deemed, pro tanto, exempt from the [NLRA].’” Id. In ALPA, this Court held the RLA controlled, notwithstanding the union being a NLRA labor organization, because the situation was “fundamentally a Railway Labor Act dispute.” 525 F.2d at 870. That holding does not help the City because, unlike with the RLA, if the Ordinance conflicts with the NLRA, the NLRA necessarily prevails under the Supremacy Clause. 3. The City’s reliance on Pacific Maritime Ass’n v. ILA Local 63, 198 F.3d 1078 (9th Cir. 1999), is misplaced for different reasons. City Br. 33. Pacific Maritime held a union that solely represents public employees, and no NLRA employees whatsoever,4 is not a labor organization under the NLRA. 198 F.3d at 1081. That holding is The opinion states the union “represents a small bargaining unit of port pilots who are employed by the City of Los Angeles.” Pac. Maritime, 198 F.3d at 1079. The briefing clarifies that “[t]hese are the only employees that [the union] repre11 4 Case: 17-35693, 12/22/2017, ID: 10700993, DktEntry: 32, Page 18 of 35 consistent with the Drivers’ position that NLRA employees must “participate” in an organization for it to be a labor organization. 29 U.S.C. § 152(5). Pacific Maritime does not support the City’s position that a union’s conduct must involve NLRA employees in order for it to be a labor organization. See City Br. 33. Pacific Maritime did not address such a contention, much less accept it. That an entity in which no NLRA employee participates is not a labor organization does not save the Ordinance. It does not save it from the Drivers’ as-applied challenge, because Teamsters Local 117 is not such an entity, but is a labor organization that represents many NLRA employees. App. Br. 37–38. Nor does the proposition save the Ordinance from the Drivers’ facial challenge, as it is arguable that QDRs will be labor organizations, or an agent thereof,5 which is all that preemption requires. See Marine Eng’rs Beneficial Ass’n, 370 U.S. at 182. C. The Ordinance Facilitates Union Coercion with a Secondary “Cease Doing Business” Objective under Sections 8(b)(4) and 8(e). 1. The object of the Ordinance’s certification process is to make a union the “sole and exclusive representative of all for-hire drivers operating within the City for a particular driver coordinator,” and for it “to negotiate, obtain and enter into a consents.” Appellee Br. at *3, Pac. Maritime, No. 98-55453, 1998 WL 34103950 (9th Cir. 1998) (emphasis added). Sections 8(b)(4) and 8(e) reach conduct by union agents that are not themselves labor organizations. See NMEBA, 274 F.2d at 170–71. This is because Section 8(b) makes it “an unfair labor practice for a labor organization or its agents” to engage in specified conduct. 29 U.S.C. § 158(b) (emphasis added). 12 5 Case: 17-35693, 12/22/2017, ID: 10700993, DktEntry: 32, Page 19 of 35 tract that sets forth terms and conditions of work applicable to all of the for-hire drivers employed by that driver coordinator.” SMC § 6.310.110. This objective is secondary, as it will require driver coordinators to “cease doing business” with any drivers unwilling to accept that union’s representation and contract. App. Br. 21–27.6 Indeed, the objective is a classic “union signatory” arrangement, which epitomizes Section 8(b)(4) and 8(e) violations, id. 17–18, and is the equivalent of an unlawful “hot cargo” arrangement, id. at 18–20. The City ignores all of that, and brazenly asserts “the Ordinance does not restrict for-hire drivers’ freedom to do business with any driver coordinator,” but “merely requires the driver coordinator to apply the same terms to all drivers who drive for its service, while permitting each individual driver to decide whether to accept those terms and work for that coordinator.” City Br. 38 (emphasis added). But, that is the very definition of an illegal union signatory requirement—i.e., one that “limit[s] the employer . . . to subcontracting with businesses that recognize the union or have a union contract.’” NLRB v. Teamsters Local 525, 773 F.2d 921, 924 (7th Cir. 1985) (quoting Bldg. Material & Dump Truck Drivers, Teamsters Local Union No. 36 v. NLRB, 669 F.2d 759, 764 (D.C. Cir. 1981)); see e.g., IBEW Local 437 (Dimeo Constr. Co.), 180 N.L.R.B. 420 (1969) (holding “[t]he phrase ‘complying with the It will also mean that drivers who want to be nonunion must “cease using . . . handling . . . or otherwise dealing in the products of any other producer” under Sections 8(b)(4) and 8(e), namely a driver coordinator’s ride referral application. 13 6 Case: 17-35693, 12/22/2017, ID: 10700993, DktEntry: 32, Page 20 of 35 terms of this Agreement’ covers union recognition as well as other terms of the agreement between the Unions and Respondent Association . . . [and] is thus an unlawful secondary union-signatory subcontracting clause”). A requirement that a driver coordinator apply a union contract to drivers with which it does business is indistinguishable from the union signatory arrangements held to violate Sections 8(b)(4) or 8(e) in the four cases Appellants’ cite to in their opening brief on page 17 n.7, the ten cases cited on page 19, and the three cases cited on page 23 n.8. Many more examples could be offered. This includes five “dual shop” cases wherein the Board held the following contractual clauses, which required the extension of a union contract to an employer’s affiliates, to violate Section 8(e) because they had secondary “cease doing business” objectives:  “In the event that the partners, stock holders or beneficial owners of the company form or participate in the formation of another company . . . that business enterprise shall be . . . covered by all terms of this contract.” Carpenters Dist. Council of Ne. Ohio (Alessio Constr.), 310 N.L.R.B. 1023, 1023 (1993) (emphasis added);  “This agreement shall be effective in all places where work is being performed or is to be performed by . . . any person, firm or corporation owned or financially controlled by the Employer.” Int’l Ass’n of Bridge, Structural & Ornamental Iron 14 Case: 17-35693, 12/22/2017, ID: 10700993, DktEntry: 32, Page 21 of 35 Workers (Sw. Materials & Supply, Inc.), 328 N.L.R.B. 934, 934 (1999) (emphasis added);  “The Employer shall require as a condition for entering into any joint venture or joint work undertaking or arrangement for construction work that all parties to the contract . . . agree to be bound by this Agreement.” Local 520, Int’l Union of Operating Eng’rs (Massman Constr. Co.), 327 N.L.R.B. 1257, 1257 (1999) (emphasis added);  “[S]ubsidiaries or joint venture[s] to which [the employer] may be [a] part[y] . . . shall be covered by the terms of this agreement.” Central Pa. Reg’l Council of Carpenters (Novingers, Inc.), 337 N.L.R.B. 1030, 1032 (2002) (emphasis added);  “[A]ny firm engaging in [certain work] . . . in which [the employer] has or acquires a financial interest or is participating in a venture with other contractors or operators, shall be responsible for compliance with all terms and conditions of [this] agreement.” Blasters, Drillrunners, & Miners Union, Local 29 (RWKS Comstock), 344 N.L.R.B. 751, 751 n.2 (2005) (emphasis added). The list could go on. The City’s position disregards a veritable mountain of case law, as well as this Court’s recognition that “it is well settled that union signatory clauses violate section 8(e).” NLRB v. HERE Local 531, 623 F.2d 61, 67 (9th Cir. 1980). Nor is it exculpatory that drivers can “decide whether to accept those [union contract] terms and work for that coordinator.” City Br. 38. The same is true of any un15 Case: 17-35693, 12/22/2017, ID: 10700993, DktEntry: 32, Page 22 of 35 ion signatory requirement that conditions a business relationship on a contractor accepting a union’s contract—i.e., that the contractor can avoid the union condition by not doing business with that employer. Sections 8(b)(4) and 8(e), however, prohibit unions from imposing such conditions in the first instance. See NLRB v. Carpenters Dist. Council of New Orleans & Vicinity, 407 F.2d 804, 806 (5th Cir. 1969) (holding “[s]econdary coercion to force a neutral to add a condition . . . to its existing contractual arrangement with the primary employer is an illegal [cease doing business] objective within the meaning of [Section 8(b)(4)(ii)(A)]”). 2. The City misuses a term of art by analogizing the union contract contemplated under the Ordinance to a primary “union standards” clause, which “require[s] an employer to subcontract only with others who agree to abide by union-negotiated wages and benefits.” City Br. 40. The analogy fails for at least two reasons. First, union standards clauses do not require contractors accept union representation or abide by a union contract, as the Ordinance does. As this Court recognized in HERE Local 531, that is a principal difference between union standards and union signatory requirements. 623 F.2d at 67–68. The former requires an employer do business with contractors that pay the same compensation the employer pays to its union-represented employees. Id. The latter requires an employer do business with contractors the union represents and that are subject to the union’s contract. Id. Certification of a union under the Ordinance will mandate the latter, which is a union 16 Case: 17-35693, 12/22/2017, ID: 10700993, DktEntry: 32, Page 23 of 35 signatory requirement under HERE Local 531 and other precedents. Id. (requiring that “all provisions of the collective bargaining agreement ‘be applicable to and binding upon said lessee’” is not a union standards clause because “a condition precedent for [a] lease . . . to any employer is, effectively, that such employer agree to recognize and contract with the Union, the precise effect of union signatory clauses”); see e.g., Bldg. & Constr. Trades Council. v. NLRB, 328 F.2d 540, 540–41 (D.C. Cir. 1964), aff’d sub nom. Shepard v. NLRB, 459 U.S. 344 (1983)) (requiring that subcontractors observe the “‘terms of the appropriate labor agreement” is not a union standards clause, but a union signatory requirement, because “the clause requires subcontractor agreement to the full union contract, including union recognition”). Second, union standards clauses are deemed primary only when they are work preservation agreements that protect the work of union-represented employees from outsourcing. See HERE Local 531, 623 F.2d at 67–68; Dimeo Constr., 180 N.L.R.B. at 420. “[A] lawful work preservation agreement . . . must have as its objective the preservation of work traditionally performed by employees represented by the union.” NLRB v. Int’l Longshoremen’s Ass’n, 447 U.S. 490, 504 (1980) (emphasis added). The Ordinance does not preserve the work of any union-represented workers from outsourcing.7 The Ordinance’s function, rather, is to facilitate union Even if the Ordinance authorized work preservation agreements, the NLRA would still preempt it because local governments cannot force employers like Uber and Lyft into union agreements permitted under Section 8(e). See App. Br. 27–29. 17 7 Case: 17-35693, 12/22/2017, ID: 10700993, DktEntry: 32, Page 24 of 35 organizing by empowering unions to compel nonunion drivers to accept a union’s representation and contract as a condition of doing business with a driver coordinator. That organizing objective is the polar opposite of a work preservation objective, and the hallmark of an unlawful secondary objective. See, e.g., Connell Constr., 421 U.S. at 632–34; Teamsters Local 525, 773 F.2d at 924–25; Sheet Metal Workers, Local Union No. 91 (Schebler Co.), 294 N.L.R.B. 766, 770–71 (1989). 3. The amici Law Professors acknowledge Sections 8(b)(4) and 8(e) prohibit unions from restricting employers from doing business with independent contractors who the union does not represent. Law Professors’ Br. 27–28. The amici, however, contend the Ordinance authorizes primary conduct because the drivers’ “working conditions are the subject of union representation and whatever contract the union may secure.” Id. at 26. But Uber and Lyft drivers are not unionized. The amici would have the Court pretend these drivers are represented by a union when, in fact, they are not. The Ordinance threatens nonunion drivers with being compelled to accept union representation to do business with driver coordinators. If drivers are later unionized, they would be subject to union representation only because of the Ordinance. The City cannot transform secondary conduct under the NLRA into primary conduct by legal fiat. The NLRA preempts the Ordinance primarily because it empowers unions to coerce driver coordinators only to do business with union-represented drivers. App. Br. 20–27. 18 Case: 17-35693, 12/22/2017, ID: 10700993, DktEntry: 32, Page 25 of 35 4. Finally, the City resorts to arguing that “‘union signatory’ clauses requir[e] that an employer work only with subcontractors whose employees join the union,” and that the Ordinance does not mandate union membership. City Br. 41–43. That meritless argument already has been refuted. App. Br. 15–17. Sections 8(b)(4) and 8(e) prohibit far more than just union membership requirements. Id.; see Sheet Metal Workers, 905 F.2d at 421 (stating that “the case law makes it clear that ‘cease doing business’ . . . extends to situations where a primary employer exerts any pressure calculated to cause a significant change or disruption of the neutral employer’s mode of business”). Most pertinently here, the statutes prohibit unions from requiring employers only to do business with independent contractors subject to that union’s representation and contract. See supra pp. 12–16; App. Br. 15–20. And that is exactly what the Ordinance authorizes. D. Chipman and Production Workers Prove the Ordinance Regulates Conduct the NLRA Regulates and Thus Is Preempted. 1. After devoting most of its argument to the (erroneous) proposition that Section 8(b)(4) has no application to union campaigns that involve only independentcontractor drivers, the City turns to two Section 8(b)(4) cases that concerned union campaigns involving only independent contractor drivers. City Br. 45–48 (discussing Chipman, 843 F.2d 1224, and Production Workers, 793 F.2d 323). The existence of these cases disproves the City’s contention that Section 8(b)(4) does not regulate such conduct. If the City were correct, Chipman and Production Workers would not 19 Case: 17-35693, 12/22/2017, ID: 10700993, DktEntry: 32, Page 26 of 35 exist. But they do exist, which demonstrates the Ordinance regulates conduct subject to the Board’s exclusive jurisdiction. In fact, Production Workers “uph[eld] the Board’s ruling that it had jurisdiction to consider whether the Union’s picketing violated Section 8(b)(4).” 793 F.3d at 326. That Board ruling rejected the “labor organization” argument the City makes here: “that the activities of the Unions here were not those of a ‘labor organization qua labor organization and as such they should not be treated as labor organizations for purposes of Section 8(b)(4).’” Prod. Workers, 273 N.L.R.B. at 1179. The Board held the union was a “labor organization” because it “exist[ed] at least in part for the purposes set forth in Section 2(5) of the Act,” id., and further explained, it has long been established that the Respondents are subject to the proscriptions of Section 8(b)(4) whether or not their activities concern statutory employees. Accordingly, the fact that the Respondent Unions’ ultimate objective was improved leases for a group of independent contractors rather than more customary union objectives cannot shield the Unions if their conduct is otherwise unlawful in nature. Id. (emphasis added) (footnote citing cases omitted). Production Workers repudiates the City’s primary argument in this case. 2. Chipman and Production Workers do not, however, show the union conduct the Ordinance authorizes is primary, as opposed to secondary. The reason is the Ordinance empowers unions to impose their representation and contracts on drivers who are nonunion, which is a secondary objective. App. Br. 24–25. 20 Case: 17-35693, 12/22/2017, ID: 10700993, DktEntry: 32, Page 27 of 35 Chipman and Production Workers involved unions picketing companies on behalf of independent drivers who were union members, to pressure those companies to change how they contracted with those union drivers. Chipman, 843 F.2d 1224– 25; Prod. Workers, 793 F.2d at 325. That picketing was deemed primary because it did not enmesh or target third parties, but addressed a dispute between two parties: the union drivers and those companies. Chipman, 843 F.2d 1224–25; Prod. Work- ers, 793 F.2d at 333. The courts distinguished this conduct from union conduct that targets nonunion drivers. Chipman acknowledged the union in that case “may not picket against the other subhaulers.” 843 F.2d at 1227. Production Workers distinguished two hot cargo cases—Teamsters Local 814 (Santini Bros., Inc.), 208 N.L.R.B. 184 (1974), and Teamsters Local 221, 222 N.L.R.B. 423 (1976)—on the following grounds: These orders, however, involve not picketing on behalf of independent contractors but against neutral independent contractors. In both, unionized employees of trucking companies attempted to force independent owneroperators—neutral third parties in the dispute between employees and employers—to join the union. The Board correctly held in both cases that such pressure against a neutral violates Section 8(b)(4). 793 F.2d at 330. Chipman and Production Workers are thus consistent with the panoply of hot cargo cases holding Teamsters’ campaigns directed at nonunion drivers to be secondary and unlawful. See App. Br. 17–20. 21 Case: 17-35693, 12/22/2017, ID: 10700993, DktEntry: 32, Page 28 of 35 As in those Teamsters’ hot cargo cases, and unlike in Chipman and Production Workers, the Ordinance facilitates secondary union conduct. An object, if not the object,8 of a union seeking certification under the Ordinance is to require nonunion drivers to accept that union’s representation and contract as a condition of doing business with a driver coordinator. That organizing objective is manifest in a union seeking to become the “sole and exclusive representative of all for-hire drivers operating within the City for a particular driver coordinator” and of a union “contract that sets forth terms and conditions of work applicable to all of the for-hire drivers employed by that driver coordinator.” SMC § 6.310.110. At the very least, the proposition is “arguable,” which is all Garmon preemption requires. Idaho Bldg. & Constr. Trades Council v. Inland Pac. Chapter, ABC, 801 F.3d 950, 962 (9th Cir. 2015). “This is not a demanding standard.” Id. at 965. The Drivers only need “‘demonstrate that [this issue] is one that the Board could legally decide in [their] favor.’” Id. at 965 (quoting ILA v. Davis, 476 U.S. 380, 395 (1986)). The Drivers have more than met this burden. The City argues a union might have mixed motives for enforcing the Ordinance. City Br. 48–49. That would be immaterial, even if true. First, a Section 8(b)(4) “violation is established if an unlawful object is shown, even if there also exists another and lawful object of the union’s threat and coercion.” UFCW Local 367, 333 N.L.R.B. at 781 (citing NLRB v. Denver Bldg. Trades Council, 341 U.S. 675, 689 (1951)). Second, whether a union acts with a secondary or primary motive under Section 8(b)(4) is a question within the Board’s exclusive jurisdiction to decide. 8 22 Case: 17-35693, 12/22/2017, ID: 10700993, DktEntry: 32, Page 29 of 35 3. Even if it were somehow beyond peradventure that the Ordinance facilitates primary conduct under Chipman and Production Workers, that would just move the Ordinance from the frying pan to the fire. The Ordinance would be preempted under Machinists because local governments cannot regulate primary conduct that Section 8(b)(4) permits. See App. Br. 27–29; see Morton, 377 U.S. at 259–60 (holding NLRA preempts state law that penalized a union for persuading employers not to do business with a company in a manner permitted by Section 8(b)(4)). The City contends the “labor activities relevant to Machinists doctrine are solely those that involve employees, employers, and labor organizations covered by the NLRA,” and not independent contractors. City Br. 50. That contention is refuted by the fact that Sections 8(b)(4) and 8(e) regulate union conduct directed at “persons” who are independent contractors. App. Br. 37–41; supra pp. 7–12. Chipman and Production Workers alone make that clear. The Supreme Court even has held the NLRA preempts union secondary conduct directed at individuals who are not NLRA employees. See Marine Eng’rs Beneficial Ass’n, 370 U.S. at 182–85. If the City’s only defense to the Drivers’ Machinists preemption claim is that Section 8(b)(4) has no application to union conduct directed at independent contractors—which appears to be the case—then the City has no viable defense. If the Ordinance is not preempted under Garmon, it is preempted under Machinists. 23 Case: 17-35693, 12/22/2017, ID: 10700993, DktEntry: 32, Page 30 of 35 E. The Ordinance Is Preempted under Connell and Garner. This brings us back to where we began: the NLRA preempts the Ordinance because it regulates conduct Sections 8(b)(4) and 8(e) regulate. See App. Br. 29–32. That is why the Ordinance is preempted irrespective of whether it facilitates union conduct that arguably violates those statutes (Garmon), or is permissible under them (Machinists). Either result interferes with the federal scheme of regulation. See Con- nell, 421 U.S. at 635–37; Garner, 346 U.S. at 499–501. The City makes no attempt to distinguish Connell or Garner, even though the former squarely held, in the context of secondary activities, that “[t]he use of state . . . law to regulate union activities in aid of organization must also be preempted because it creates a substantial risk of conflict with policies central to federal labor law.” 421 U.S. at 635–36. The City’s only argument that bears on the greater point is the notion the NLRA has no application whatsoever to union conduct directed at independent contractors. City Br. 31–36. That proposition is meritless for the reasons already discussed. See supra pp. 7–12. The Ordinance is preempted. II. The Ordinance Violates the First Amendment. 1. The Ordinance also violates the First Amendment because it calls for transfer- ring Drivers’ speech rights to an unwanted representative without a compelling justification for so doing. App. Br. 41–48. Contrary to the City, a union does not have to be certified for Drivers’ constitutional claim to be ripe. City Br. 51. Plaintiffs need 24 Case: 17-35693, 12/22/2017, ID: 10700993, DktEntry: 32, Page 31 of 35 not “await the consummation of threatened injury to obtain preventive relief.” Bab- bitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979) (citation omitted); see id. at 299 (holding ripe for adjudication a union’s constitutional challenge to election procedures). Indeed, no other feasible time exists for the Drivers’ claims to be addressed before they suffer constitutional injury. If the Ordinance’s organizing process is permitted to proceed, Drivers could be collectivized at any time. Their constitutional challenge to the Ordinance must be considered now, and the City restricted from subjecting each Driver’s First Amendment freedom to choose who speaks for him or her to the tyranny of a majority vote. Cf. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943) (recognizing that “[t]he very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts”). 2. On the merits, the City argues it can impose exclusive representation on independent drivers for any rational basis under Minnesota State Board v. Knight, 465 U.S. 271 (1984). City Br. 51–58. As already discussed at length, Knight did not address the situation present here, but rather the right of the government to choose to whom it listens and deals. See App. Br. 45–48. The City’s ability to choose to whom it listens does not mean the City has a free hand to dictate who speaks for drivers. 25 Case: 17-35693, 12/22/2017, ID: 10700993, DktEntry: 32, Page 32 of 35 Even if it did, unlike in Knight, the Ordinance does not just dictate to whom the City will listen, but also dictates who speaks for drivers vis-à-vis other private parties (driver coordinators). The City asserts “that distinction makes Plaintiffs’ First Amendment claims weaker, not stronger,” because negotiations with a private entity “involve no . . . petitioning activity, and instead involve solely non-expressive commercial conduct.” City Br. 55. The City’s assertion ignores that the City’s Director must review and approve union-driver coordinator contracts. SMC § 6.310.735.H.2. This requirement for government approval distinguishes the Ordinance from the NLRA, which survived a constitutional challenge because the government was not involved in setting contract terms. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 45 (1937). Even if the City was not involved in the negotiations, the First Amendment protects speech between two private parties, and not just speech between a private party and the government. The First Amendment also protects speech concerning commercial matters. See United States v. United Foods, Inc., 533 U.S. 405, 410 (2001) (holding the First Amendment prohibits the government from compelling companies to support commercial advertising about mushrooms because, among other reasons, “[t]he fact that the speech is in aid of a commercial purpose does not deprive 26 Case: 17-35693, 12/22/2017, ID: 10700993, DktEntry: 32, Page 33 of 35 respondent of all First Amendment protection” ).9 The City thus needs far more than a mere rational basis to dictate which advocacy group shall represent and speak for Drivers vis-à-vis driver coordinators. Yet, the City points to no compelling government interest that would satisfy First Amendment scrutiny; nor could it. Harris v. Quinn held the “labor peace” interest, which justifies exclusive representation of employees, does not apply to individuals who were not full-fledged employees. 134 S. Ct. 2618, 2631 (2014). The Drivers have thus pled a viable First Amendment claim. CONCLUSION The Court should reverse the district court’s opinion and judgment, and remand for further proceedings consistent with the Court’s opinion. Dated: December 22, 2017. Respectfully submitted, By: s/ William L. Messenger William L. Messenger Amanda K. Freeman c/o National Right to Work Legal Defense Foundation, Inc. 8001 Braddock Road, Suite 600 Springfield, VA 22160 (703) 321-8510 (703) 321-9319 (fax) The City’s reliance on Rumsfeld v. Forum for Academic & Institutional Rights, 547 U.S. 47 (2006) is misplaced. City Br. 52–53. Rumsfeld held requiring military recruiters have access to school property did not associate the schools with the recruiters’ message. A requirement that a school merely allow individuals to use its property is nothing akin to a City forcing the Drivers to accept the Teamsters or another union as their mandatory representative. 27 9 Case: 17-35693, 12/22/2017, ID: 10700993, DktEntry: 32, Page 34 of 35 wlm@nrtw.org akf@nrtw.org David M.S. Dewhirst James G. Abernathy c/o Freedom Foundation P.O. Box 552 Olympia, WA 98507 (360) 956-3482 (360) 352-1874 (fax) DDewhirst@freedomfoundation.com JAbernathy@freedomfoundation.com Attorneys for Plaintiffs-Appellants 28 Case: 17-35693, 12/22/2017, ID: 10700993, DktEntry: 32, Page 35 of 35 CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the type limitations provided in Federal Rule of Appellate Procedure 32(a)(7). The foregoing brief was prepared using Microsoft Word 2013, and contains 6,865 words in 14-point proportionately spaced Baskerville Oldface typeface. Dated: December 22, 2017 /s/ William L. Messenger William L. Messenger Counsel for Plaintiffs-Appellants CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on December 22, 2017. I certify that all participants in this case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. Dated: December 22, 2017 /s/ William L. Messenger William L. Messenger Counsel for Plaintiffs-Appellants 29