St. Thomas-St. John Hotel & Tourism Ass'n v. Government of the United States Virgin Islands Ex Rel. Virgin Islands Department of Labor , 357 F.3d 297 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
2-11-2004
St Thomas St John v. Gov of VI
Precedential or Non-Precedential: Precedential
Docket No. 02-3621
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PRECEDENTIAL (D.C. Civil Action No. 99-cv-00054)
UNITED STATES COURT OF District Judge: Honorable Thomas K.
APPEALS Moore
FOR THE THIRD CIRCUIT
________ Argued on April 28, 2003
No: 02-3621
Before: ROTH, MCKEE and COWEN
Circuit Judges
THE ST. THOMAS - ST. JOHN HOTEL
& (Opinion filed February 11, 2004)
TOURISM ASSOCIATION, INC.;
THE ST. THOMAS - ST. JOHN Iver A. Stridiron
CHAMBER OF Attorney General
COMM ERCE, INC. and THE ST.
CROIX HOTEL & TOURISM Elliott M. Davis
ASSOCIATION, INC., Solicitor General
Appellants Carol S. Moore
Assistant Attorney General
Department of Justice
v. 48B-50C Kronprindsens Gade
GERS Building, 2 nd Floor
GOVERNM ENT OF THE UNITED Charlotte Amalie
STATES St. Thomas, USVI 00802
VIRGIN ISLANDS BY AND
THROUGH Kathleen Navin, Esquire (Argued)
THE VIRGIN ISLANDS Legal Services of Virgin Islands
DEPARTMENT 3017 Estate Orange Grove
OF LABOR; ELECUTERIA ROBERTS Christiansted
IN HER OFFICIAL CAPACITY AS Saint Croix, USVI, 000820
ACTING
COMM ISSIONER OF THE VIRGIN Counsel for Appellees
ISLANDS
DEPARTMENT OF LABOR Charles E. Engeman, Esquire (Argued)
David J. Comeaux, Esquire
ESLA HUGGINS, LADIAH WHYTE, Ogletree, Deakins, Nash, Smoak &
(Intervenor in D.C.) Stewart, LLC
1336 Beltjen Road, Suite 202
Charlotte Amalie
St. Thomas, USVI 00802
Appeal from the District Court of the
Virgin Islands Counsel for Appellants
employer or renders him a
rival of his employer;
OPINION
(2) whose insolent or
offensive conduct towards a
ROTH, Circuit Judge customer of the employer
injures the em ployer’s
This appeal presents the question business;
whether the Virgin Islands Wrongful
Discharge Act (WDA), 24 V.I. Code Ann. (3) whose use of intoxicants
§§ 76-79 is preempted by the National or controlled substances
Labor Relations Act (NLRA), 29 U.S.C. interferes with the proper
§§ 151-169, and, if not, whether the discharge of his duties;
application of the WDA to supervisors is
preempted by the NLRA. A prior panel of (4) who wilfully and
this Court addressed the first issue at the i n t e n t i o n a l l y d i s o b e ys
preliminary injunction phase and decided reasonable and lawful rules,
that the WDA was not preempted. We orders, and instructions of
adhere to that decision. The prior panel the employer; provided,
left open the second issue. On remand, the however, the employer shall
District Court held that the NLRA does not not bar an employee from
preempt the application of the WDA to patronizing the employer’s
supervisors. This appeal followed. business after the
employee’s working hours
I. Facts and Procedural History are complete;
In 1986, the Virgin Islands (5) who performs his work
legislature enacted Section 76 of the assignments in a negligent
WDA, which limited the grounds upon manner;
which an employer may terminate an
employee. The statute provided, in (6) wh ose c onti nuous
relevant part, as follows: absences from his place of
em ploym ent affect the
(a) Unless modified by interests of his employer;
contract, an employer may
dismiss an employee: (7) who is incompetent or
i n e fficient, t h e r e by
(1) who engages in a impairing his usefulness to
business which conflicts his employer;
with his duties to his
2
(8) who is dishonest; or In 1996, the Virgin Islands
legislature amended the first sentence of
(9) whose conduct is such subsection (a) of the statute to state
that it leads to the refusal, “[u]nless modified by union contract . . ..”
reluctance or inability of 24 V.I. Code Ann. § 76 (1996) (emphasis
other employees to work added). This amended provision has been
with him. interpreted to apply to all employees in the
Virgin Islands, absent a collective
**** bargaining agreement setting discharge
terms to the contrary. See St. Thomas–St.
(c) Any employe e John Hotel & Tourism Ass’n, Inc. v. Gov’t
discharged for reasons other of the U.S. Virgin Islands, 218 F.3d 232,
t h a n t h o s e stated in 236 (3d Cir. 2000) (Hotel Association II).1
subsection (a) of this section
shall be considered to have On April 5, 1999, the St.
been wrongfully discharged; Thomas–St. John Hotel & Tourism
however, nothing in this Association, Inc., the St. Thomas–St. John
section shall be construed as Chamber of Commerce, Inc., and the St.
prohibiting an employer Croix Hotel & Tourism Association, Inc.
f r o m t e r m i n a ti n g a n (collectively the “associations”) filed this
employee as a result of the action in the District Court of the Virgin
c e ssati o n o f b u s i ness Islands against the Government of the
operations or as a result of a Virgin Islands, the Virgin Islands
general cutback in the work Department of Labor, and the Acting
force due to economic Commissioner of the Department of
hardship, or as a result of
the employee’s participation
in concerted activity that is 1
In 2000, the Virgin Islands
not protected by this title.
Legislature amended the definition of
“employee” under the WDA to exclude
24 V.I. Code Ann. § 76 (1986). Any
“any person employed in a bonafide
employee covered by the WDA and
position in an executive or professional
discharged in violation of Section 76 may
capacity.” See St. Thomas–St. John
file an administrative complaint with the
Hotel & Tourism Ass’n, Inc. v. Gov’t of
Commissioner of Labor, who has the
the U.S. Virgin Islands, 216 F. Supp. 2d
authority to order reinstatement and back
460, 462 (D.V.I. 2002) (Hotel
pay. 24 V.I. Code Ann. § 77. In addition,
Association III). The issue of the
an employee may file a lawsuit for
coverage under the WDA of supervisory
compensatory and punitive damages. 24
employees who are not executives or
V.I. Code Ann. § 79.
professionals is still, however, before us.
3
Labor, seeking to restrain the enforcement statutory protections through
of the WDA in any pending or future the terms of the collective
WDA wrongful discharge proceeding. bargaining agreement.
Elsa Huggins and Ladiah Whyte, two
employees who have WDA claims pending Hotel Association II, 218 F.3d at 245.
before the Department of Labor, However, in Hotel Association II, the
intervened as additional defendants. The Court expressly left open the issue whether
associations alleged that the WDA was the WDA, as applied to supervisors, was
preempted by the NLRA and deprived preempted by the NLRA. In remanding
them of federal rights in violation of 42 the case to the District Court to grant
U.S.C. § 1983. They sought declaratory summary judgment to the defendants on
and injunctive relief under the Declaratory the issue of general preemption, we noted
Judgment Act, 28 U.S.C. §§ 2201, 2202, that “there remains for decision by the
injunctive relief under 42 U.S.C. § 1983, District Court the associations’ claim that
and attorney’s fees under 42 U.S.C. § 1988 the WDA should not be applied to
and 5 V.I. Code Ann. § 541. supervisors.” Id. at 246.
Following a hearing, the District On remand, the District Court
Court concluded that the plaintiffs were denied the associations’ motion for
likely to succeed on the merits of their summary judgment on the question
preemption claim and issued a preliminary whether the NLRA preempts the WDA as
injunction. See St. Thomas–St. John Hotel applied to all employees. Following
& Tourism Ass’n, Inc. v. Gov’t of the U.S. supplemental briefing, the District Court
Virgin Islands, Civ. No. 1999-54, 1999 held that the NLRA does not preempt
WL 376873 (D.V.I. June 3, 1999) (Hotel application of the WDA to supervisors and
Association I). We reversed, holding that: granted defendants’ motion for summary
judgment as to all claims. See St.
the WDA is not preempted Thomas–St. John Hotel & Tourism Ass’n,
by the NLRA even though it Inc. v. Gov’t of the U.S. Virgin Islands,
provides an opt-out by 216 F. Supp. 2d 460, 466-68 (D.V.I. 2002)
express terms of union (Hotel Association III).2 Plaintiffs timely
contract. . . . [T]he WDA
does not force an employee
to choose between collective 2
The District Court also held that
b a r g a i n in g a n d t h e
supervisors are covered by the WDA
protections of state law;
because supervisors are employees under
rather, it protects all Virgin
24 V.I. Code Ann. § 62. See Hotel
Island employees, but gives
Association III, 216 F. Supp. 2d at 463-
employees the option of
64. Since plaintiffs do not appeal this
relinquishing the territorial
issue, we do not address it.
4
appealed.3 all Employees:
II. Jurisdiction and Standard of We decline the associations’
Review request that we reconsider the prior panel’s
holding in Hotel Association II regarding
The District Court had jurisdiction preemption of the WDA as applied to all
over this federal question pursuant to 28 employees. Under the law of the case
U.S.C. § 1331. We have jurisdiction over doctrine, “one panel of an appellate court
the District Court’s final order pursuant to generally will not reconsider questions that
28 U.S.C. § 1291. We exercise plenary another panel has decided on a prior
review over a grant of summary judgment. appeal in the same case. The doctrine is
Chisolm v. McManimon, 275 F.3d 315, designed to protect traditional ideals such
321 (3d Cir. 2001). Summary judgment is as finality, judicial economy and
appropriate if there is no genuine issue of jurisprudential integrity.” In re City of
material fact and the moving party is Philadelphia Litig., 158 F.3d 711, 717-18
entitled to judgment as a matter of law. (3d Cir. 1998).
Fed. R. Civ. P. 56(c); Anderson v. Liberty
Lobby Inc., 477 U.S. 242, 250 (1986). However, as this Court recognized
in Council of Alternative Political Parties
III. Discussion v. Hooks, “‘while the law of the case
1. Preemption of the WDA as Applied to doctrine bars courts from reconsidering
matters actually decided, it does not
prohibit courts from revisiting matters that
3 are avowedly preliminary or tentative.’”
We note with great concern that the
179 F.3d 64, 69 (3d Cir. 1999).
Government of the United States Virgin
Preliminary injunctions are, by their
Islands, the Virgin Islands Department of
nature, tentative and impermanent. See
Labor, and the Commissioner of the
R.R. Yardmasters of Am. v. Pennsylvania
Department of Labor did not see fit to
R.R. Co., 224 F.2d 226, 229 (3d Cir.
send an attorney to oral argument of this
1955). Thus:
appeal before us. The only defendants
who were represented at oral argument
The purpose of a
were the intervenors, but their attorney
preliminary injunction is
admitted that the intervenors were not
merely to preserve the
supervisors. Nevertheless, despite the
relative positions of the
intervenors’ lack of standing to address
parties until a trial on the
the issue of the status of supervisors, we
merits can be held. Given
permitted them to present argument in
this limited purpose, and
support of the government’s position in
given the haste that is often
light of the need to have a full discussion
necessary if those positions
of this important issue.
5
are to be preserved, a 2. Preemption of the WDA as Applied to
preliminary injunction is Supervisors:
customarily granted on the
basis of procedures that are Turning to the issue left open by
less formal and evidence Hotel Association II, we hold that the
that is less complete than in District Court in Hotel Association III
a trial on the merits. A party erred in concluding that the WDA , as
thus is not required to prove applied to supervisors, is not preempted by
his case in full at a the NLRA. The Supremacy Clause of the
p r e limina ry-injuncti o n United States Constitution provides that
hearing, and the findings of the laws of the United States “shall be the
fact and conclusions of law supreme Law of the Land . . . any Thing in
made by a court granting a the Constitution or Laws of any State to
preliminary injunction are the Contrary notwithstanding.” U.S.
not biding at trial on the Const. Art. VI, cl. 2. This principle
merits. applies to the laws of the Virgin Islands
through the Revised Organic Act, which
Univ. of Texas v. Camenisch, 451 U.S. authorizes the Virgin Islands legislature to
390, 395 (1981). enact territorial laws that are “not
inconsistent with . . . the laws of the
Nevertheless, under this standard United States made applicable to the
for preliminary matters, the plaintiffs have Virgin Islands . . . .” 48 U.S.C. § 1574(a).
pointed to no adequate reason for Under this Clause:
departing from the holding in Hotel
Association II. There is no intervening The Supreme Court has
new facts or law. See In re City of recognized three general
Philadelphia Litig., 158 F.3d at 718. Nor ways in which federal law
was the earlier decision so clearly may preempt, and thereby
erroneous that it would create a manifest displace, state law: 1)
injustice. See id. Finally, the plaintiffs “ e x p r e s s p re e m pt i o n ,”
have not pointed to anything about the which arises when there is a
more informal procedure of determining a n e x p l i c i t st a t u to r y
whether to grant or deny a preliminary command that state law be
injunction that resulted in an erroneous displaced, see Morales v.
decision. See Camenisch, 451 U.S. at 395. Trans World Airlines, Inc.,
Therefore, this panel adheres to the 504 U.S. 374 (1992); 2)
decision in Hotel Association II that the “field preemption,” which
WDA, as applied to employees, is not arises when federal law “so
preempted by the NLRA. thoroughly occupies a
legislative field as to make
6
reasonable the inference that Section 14(a) of the NLRA
Congress left no room for provides that “no employer . . . shall be
the states to supplement it,” compelled to deem individuals defined
Cipollone v. Liggett Group, herein as supervisors as employees for the
Inc., 505 U.S. 504, 516 purpose of any law, either national or
(1992) (internal quotation local, relating to collective bargaining.”
omitted); and 3) “conflict
preemption,” which arises
when a state law makes it
law preemption principles set forth in
impossible to comply with
San Diego Building Traders Council v.
both state and federal law or
Garmon, 359 U.S. 236 (1959) and
when state law “stands as an
International Ass’n of Machinists v.
obstacle to the
Wisconsin Employment Relations
acco mp lishment and
Comm’n, 427 U.S. 132 (1976). See
execution of the full purpose
Hotel Association III, 216 F. Supp. 2d at
and objectives of Congress,”
465 n. 4. Garmon preemption displaces
Hines v. Davidowitz, 312
state jurisdiction over conduct which is
U.S. 52, 67 (1941).
“arguably within the compass of § 7 or §
Hotel Association II, 218 F.3d at 238.
8 of the Act.” Hotel Association II, 218
F.3d at 239 (quoting Garmon, 359 U.S.
Since the NLRA does not contain
at 246). Machinists preemption is a form
an express preemption provision and it
of conflict preemption under which state
regulates an area traditionally regulated by
regulation of the bargaining conduct of
the states, there is a presumption that
private parties is displaced because it
Congress did not intend to displace state
conflicts with the purpose of Congress in
law. See id. Thus, state law will not be
enacting the NLRA to leave that conduct
preempted by the NLRA unless the state
“to be controlled by the free play of
law conflicts with the NLRA’s express
economic forces.” Id. (quoting
provisions or underlying goals and
Machinists, 427 U.S. at 140). However,
policies. See id. A state or territorial law
while the subspecies of Garmon and
conflicts with the NLRA if it stands as an
Machinists preemption often are invoked
obstacle to the accomplishment and
in connection with the NLRA, the field
execution of the full purposes and
of labor law also is subject to the general
objectives of Congress. See id.4
preemption principles outlined above.
See id. Thus, the issue in the present
case is whether, under general principles
4
The District Court in Hotel of conflict preemption, the WDA
Association III correctly recognized that conflicts with the NLRA. See id.;
the proper analysis in this case is not Livadas v. Bradshaaw, 512 U.S. 107, 120
guided by the two dominant federal labor (1994).
7
29 U.S.C. § 164(a). The purpose of this supervisory employees were organized,
section is to redress a perceived imbalance disciplinary slips fell off by two thirds and
in labor-management relationships that the accident rate doubled. Id. at 661
arose from putting supervisors in the (quoting S.Rep. No. 105 at 3, 4).
position of serving two masters with
opposing interests, namely their employer Turning then to the territorial law
and their union. See Beasley v. Food Fair before us, if the WDA is applied to
of North Carolina, 416 U.S. 653, 657 supervisors, the only way for an employer
(1974). The Supreme Court in Beasley to alter or expand the WDA’s nine
recognized that “‘Congress’ propelling enumerated grounds for terminating a
intention [in enacting Section 14(a)] was supervisor/employee would be to enter a
to relieve employers from any compulsion “union contract” with the supervisor. But
under the Act and under state law to the qualities an employer looks for in
countenance or bargain with any union of supervisors are not the same as those an
supervisory employees . . ..’” Id. at 657 employer looks for in employees. There
(quoting from Hanna Mining Co. v. are aspects of management that extend
District 2, Marine Engineers Beneficial beyond the work qualities enumerated in
Ass’n, 382 U.S. 181, 189 (1965)). Thus, the causes for discharge permitted under
the Court struck a state statute that the WDA. An employer may consider it
permitted supervisors to seek damages essential that a supervisor’s mastery of
against employers who discharged them these aspects of management be a
for union membership because it “plainly condition of employment. Under the
put pressure on [the employers] ‘to accord WDA, however, in order to incorporate
to the front line of management the those other grounds for discharge into an
anomalous status of employees,’ and employment contract with a supervisor, the
would therefore flout the national policy employer would have to bargain with the
against compulsion upon employers from supervisor as an employee. Moreover, if
either federal or state agencies to treat the supervisors, as the front line of
supervisors as employees.” Id. at 662 management, were answerable not only to
(quoting S.Rep. No. 105 80 th Cong., 1 st the employer but also to the union, the
Sess. at 5 (1947)). Beasley, thus, teaches employer’s ability to safely, efficiently,
that state (or territorial) laws that pressure and productively manage the business
employers to accord supervisors the status might suffer.
of employees for collective bargaining
purposes conflict with Section 14(a) of the Under Beasley, pressure upon
NLRA. See id. As noted in the Senate employers to treat supervisors as
Report quoted in Beasley, the result of employees and to bargain with them as
supervisors serving two masters, and not such violates Section 14(a). See 416 U.S.
being loyal to the employers’ interests, was at 657. We conclude that the WDA would
evident in the coal mines, where, after have such an effect on employers by
8
exerting a significant degre e of 14(a) seeks to combat. The directness of
compulsion upon employers to bargain the pressure may affect the strength of the
with supervisors as employees; thus the incentive rather than its existence.
WDA violates Section 14(a). However, the Supreme Court, by stating in
Beasley that Congress intended to prevent
The District Court in Hotel “any compulsion,” clearly recognized that
Association III, however, read Beasley as Section 14(a) prohibits the creation of any
holding that a state or territorial statute pressure to collectively bargain with
conflicts with Section 14(a) only when the supervisors. 416 U.S. at 657.
effect of the statute is to “afford
supervisors a cause of action that they Thus, in Washington Service
would not otherwise have under the Contractors Coalition v. District of
NLRA.” Hotel Association III, 216 F. Columbia, the District Court for the
Supp. 2d at 465. This reading of Beasley District of Columbia held that a statute that
is incomplete. The holding in Beasley is indirectly compelled an employer to
not merely that it is a violation of Section bargain collectively with supervisors
14(a) if state law affords supervisors a conflicted with Section 14(a). See 858 F.
cause of action that they would not have Supp. 1219, 1221 (D.D.C. 1994), rev’d on
under thE NLRA. Beasley goes further to other grounds, 54 F.3d 811 (D.C. Cir.
establish that it is a violation of Section 1995). In that case, the District of
14(a) if the state law “relating to collective Columbia enacted a statute that required
bargaining,” – whether or not it affords a contractors to retain many of their
cause of action to supervisors – “‘puts predeces sor’s employees af ter the
pressure on [employers] to accord to the contractors took over a service contract.
front line of management the anomalous The District Court held that the statute
status of employees.’” 416 U.S. at 662 compelled the employer to bargain with
(quoting S .Rep. No. 105 at 5). Such a law the supervisors collectively in violation of
would “flout the national policy against Section 14(a). The court found that,
compulsion upon employers from either because the statute applied to supervisors,
federal or state agencies to treat if a predecessor’s supervisors were
supervisors as employees.” Id. unionized, the statute could indirectly
compel an employer to bargain collectively
So long as a state or territorial with supervisors by preventing the
statute creates some pressure to bargain e m p l o y er f r o m t e r m i n a t i n g t h e
collectively with supervisors, be it direct predecessor’s supervisors. See id. at 1225.
or indirect, the statute creates the
possibility of forcing employers to divide As in Washington Service
the loyalties of their supervisors between Contractors Coalition, the WDA does not
the employer and the union. As Beasley directly require that an employer
recognized, it is this pressure that Section collectively bargain with supervisors.
9
Nevertheless, the WDA indirectly compels
an employer to bargain collectively with
supervisors by requiring that an employer
who wishes to alter the WDA’s grounds
for terminating a supervisor enter into a
collective bargaining agreement. Since
this limitation constitutes pressure to
bargain with supervisory employees, the
WDA, as applied to supervisors, conflicts
with Section 14(a) of the NLRA
IV. Conclusion
For the reasons stated above, the
judgment of the District Court as to
general preemption will be affirmed. The
judgment in favor of the government
defendants as to the application of the
WDA to supervisors will be vacated and
this question will be remanded to the
District Court with instructions to enter
judgment in favor of plaintiffs.
10