DocketNumber： Nos. 82-5210, 82-5234 and 82-5260
Judges： Becker, Gibbons, Higginbotham
Filed Date： 6/6/1983
Status： Precedential
Modified Date： 11/4/2024
OPINION OF THE COURT
Hotel and Restaurant Employees and Bartenders International Union No. 54 (the Union) and its president, Frank Gerace, appeal from an order of the district court denying their motion for a preliminary injunction against enforcement of certain provisions of the New Jersey Casino Control Act, N.J.Stat.Ann. 5:12-1 to -152 (West Supp.1982).
I.
Parties and Proceedings in the District Court
The Union is an unincorporated labor organization within the meaning of section 2(5) of the National Labor Relations Act (NLRA), as amended. 29 U.S.C. § 152 (1976). It has approximately 12,000 members of whom over 8,000 are employed as waiters, waitresses, bartenders, cooks, kitchen helpers, housekeepers and other hotel service employees in those establishments in Atlantic City, New Jersey, licensed to operate gambling casinos. The Union has been duly certified by the National Labor Relations Board (the Board), pursuant to section 9 of the NLRA, 29 U.S.C. § 159 (1976), as' the representative of those employees for purposes of collective bargaining. It is similarly certified for employees of other businesses in southern New Jersey which do not hold gambling casino licenses. The Union participates on behalf of its members in the Hotel and Restaurant Employees and Bartenders International Union Pension Fund, and its Health and Welfare Fund. Both of these funds are employee benefit plans within the meaning of the Employee Retirement Income Security Act of 1974 (ERISA), as amended. 29 U.S.C. §§ 1001-1381 (1976). President Frank Gerace is a trustee of those funds.
In 1977 the New Jersey legislature passed the Casino Control Act (the Act), which authorizes the licensing of hotels in Atlantic City for casino gambling. That act establishes a Casino Control Commission with broad regulatory authority over casinos and related industries. N.J.Stat.Ann. 5:12-63 to -75 (West Supp.1982) It also
Particularly relevant to this case is the provision in section 93 of the Act, requiring that every labor organization seeking to represent employees licensed or registered under the Act and employed at a casino hotel register with the Commission annually. NJ.Stat.Ann. 5:12-93(a) (West Supp. 1982). Section 93 also provides:
No labor organization, union or affiliate registered or required to be registered pursuant to this section and representing or seeking to represent employees licensed or registered under this act may receive any dues from any employee licensed or registered under this act and employed by a casino licensee or its agent, or administer any pension or welfare funds, if any officer, agent, or principal employee of the labor organization, union or affiliate is disqualified in accordance with the criteria contained in section 86 of this act. The commission may for the purposes of this subsection waive any disqualification criterion consistent with the public policy of this act and upon a finding that the interests of justice so require.
N.J.Stat.Ann. 5:12-93(b) (West Supp.1982). Thus section 93 cross-references to the disqualification criteria in section 86. The criteria include convictions of a list of designated offenses or “any other offense which indicates that licensure of the applicant would be inimical to the policy of this act and to casino operations.” N.J.Stat.Ann. 5:12-86(c)(4) (West Supp.1982). They also include:
The identification of the applicant or any person who is required to be qualified under this act as a condition of a casino license as a career offender or a member of a career offender cartel or an associate of a career offender or career offender cartel in such a manner which creates a reasonable belief that the association is of such a nature as to be inimical to the policy of this act and to gaming operations. For purposes of this section, career offender shall be defined as any person whose behavior is pursued in an occupational manner or context for the purpose of economic gain, utilizing such methods as are deemed criminal violations of the public policy of this State. A career offender cartel shall be defined as any group of persons who operate together as career offenders.
N.J.Stat.Ann. 5:12-86(f) (West Supp.1982). A union may be disqualified under section 93, therefore, if an officer, agent or principal employee is an “associate of any person whose behavior is pursued in an occupational manner or context for the purpose of economic gain, utilizing such methods as are
In 1978 the Union filed with the Commission the annual registration statement required by section 93(a). Thereafter the Division of Gaming Enforcement conducted an investigation, and reported to the Commission that in its view Frank Gerace, President, Robert Lumino, Secretary-Treasurer, and Frank Materio, Grievance Manager, were disqualified under the criteria of section 86. The Division requested the Commission to prevent the Union from collecting dues from or administering pension or welfare funds on behalf of employees in the casino hotels. The Commission determined to hold a hearing on the Division’s report. At a prehearing conference on June 1, 1981 counsel for the Union raised objections to the constitutionality of sections 86 and 93. The Commission requested briefing on the question of its authority to rule upon such objections, and on August 5, 1981 it ruled that since it was not a court it lacked competence to consider them. The Commission then fixed September 9,1981 as the date for commencement of an evidentiary hearing on disqualification. Counsel for the Union advised the Commission of his client’s intention to file a challenge to the constitutionality of sections 86 and 93 in the federal court before that date.
On August 17, 1981 the Union and Mr. Gerace filed a verified complaint. The complaint alleged that the Division was seeking to have the Commission impose the sanctions set forth in section 93(b) of the Act, but that section 93 was an attempt to regulate areas which are preempted by the NLRA and by ERISA. It alleged, further, that section 93 impermissibly interferes with federally guaranteed rights of employees of the casino and casino hotel industries with respect to the selection of their exclusive collective bargaining agent. An amended complaint alleged that sections 93 and 86 are preempted by the Labor Management Reporting and Disclosure Act of 1959 (LMRDA), as amended. 29 U.S.C. §§ 401-531 (1976). The complaint also alleged that section 86(f) is both unconstitutionally overbroad and unconstitutionally vague and thus violates the first, fifth and fourteenth amendments of the Constitution. The plaintiffs sought a declaratory judgment that both sections are void, as well as temporary and permanent injunctive relief against the enforcement of section 93. Plaintiffs also filed a motion seeking preliminary injunctive relief, supported by an affidavit alleging that it would be irreparably injured by being forced to participate in proceedings in violation of section 7 of the NLRA.
The Commission acceded to a request by the district court that it defer commencement of its disqualification hearing until the motion for a preliminary injunction was decided. On December 1, 1981 a hearing was held on that motion. At the hearing the Union presented affidavits together with supporting exhibits which were accepted in evidence as uncontroverted by the Commission or the Division. Defendants also placed certain exhibits in evidence. Thereafter both the Commission and the Division moved to dismiss the complaint “on the ground of abstention.” On March 22, 1982 the district court considered both motions in an opinion containing findings of fact and conclusions of law. The court’s findings of fact are quoted in the margin.
In ruling on the motion for a preliminary injunction the district court opined that the plaintiffs were not likely to succeed on the merits of their claim that section 93 of the Act is preempted by the LMRDA. The court had more difficulty with the contentions that the NLRA and ERISA were preemptive, but concluded that because of the discretion vested in the Commission by virtue of the last sentence in section 93(b), in actual application no conflict might arise between that section and those federal statutes.
In view of all of these considerations, the court concludes that plaintiffs are not likely to succeed on the merits of their vagueness claim. Nor are they likely to succeed on the merits of their related overbreadth and First Amendment claims. The absence of any irreparable harm pendente lite has already been discussed in connection with the discussion of plaintiffs’ preemption claims, as has the conclusion that the balance of equities and the public interest weigh against the issuance of a preliminary injunction.
536 F.Supp. at 338. An order was entered on March 22,1982 denying the motion for a preliminary injunction. The plaintiffs appealed. Their application, pursuant to Fed. R.App.P. 8(a), for an injunction pending appeal was initially denied in the district court and here.
Because no preliminary injunction was entered, the Commission went forward with a disqualification hearing. Its subsequent actions were called to the attention of the district court in a motion, pursuant to Fed. R.Civ.P. 62(c), for reconsideration of the issuance of an injunction pending this appeal. On September 28, 1982 the Commission issued an opinion in which it found that President Frank Gerace, Executive Board member Frank Materio and Business Agent Karlos LaSane were disqualified under the criteria of section 86. Gerace and Materio were held to be disqualified under section 86(f) because they were associated with members of organized crime in a manner inimical to the policy of the Act and to gaming operations. LaSane was disquali
The present status of the case, therefore, is that the district court denied a preliminary injunction against enforcement of section 93 and denied a Rule 8(a) motion for such an injunction pending appeal, but on a Rule 60(b) motion reconsidered the Rule 8(a) motion and granted an injunction pending appeal, which will expire by its terms upon the entry of a judgment disposing of the Union’s appeal. Except for that injunction, the Union would now be prohibited from collecting dues from its casino hotel members unless it replaced its President, its Business Agent, and a member of its Executive Board.
II.
The Cross-Appeals
Neither the Commission nor the Division contends that the denial of a Rule 12(b)(6) motion is anything but an interlocutory order. Both contend, however, that they can appeal by virtue of 28 U.S.C. § 1292(a)(1). Their theory is that “[a]n appeal from an injunctive order supports review of an order denying a motion to dismiss for failure to state a cause of action, for improper venue, for lack of jurisdiction, and for lack of standing.” 9 Moore’s Federal Practice ¶ 110.25, at 271 (2d ed. 1970) (footnotes omitted). There are several difficulties with applying that theory in this case. In the first place, the Commission and the Division are the prevailing parties in the district court. They simply are not aggrieved by the denial of the preliminary injunction. Moreover no order has been entered on the motions to dismiss. The trial court’s opinion discussed these motions, but appeals do not ordinarily lie from opinions. See Fed.R.Civ.P. 54(a), 58. Finally, even if we were to treat the opinion as if it were an order, in this circuit it would not be reviewable in conjunction with an appeal from even the grant of a preliminary injunction. Kershner v. Mazurkiewicz, 670 F.2d 440 (3d Cir.1982). Thus the Union’s contention that the cross-appeals should be dismissed must prevail. Neither section 1291 nor section 1292(a)(1) provides for appellate jurisdiction over them, and they must be dismissed.
We can, of course, consider the contention that the district court should have dismissed the complaint on the authority of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), or Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943), as an alternative ground for affirmance of the denial of preliminary in-junctive relief. See New Jersey Education Association v. Burke, 579 F.2d 764, 766 (3d Cir.), cert. denied, 439 U.S. 894, 99 S.Ct. 252, 58 L.Ed.2d 239 (1978). Thus no significant prejudice to the state’s interests occurs in this instance from its inability to appeal at this time from the trial court’s inaction on its motion to dismiss.
III.
New Jersey Regulation of Gambling
Prior to 1844 New Jersey, like many states, was so tolerant of gambling that it regularly authorized lotteries as a means of
No lottery shall be authorized by the legislature or otherwise within this state, and no ticket in any lottery shall be bought or sold within this state, nor shall pool-selling, book-making or gambling of any kind be authorized or allowed within this state, nor shall any gambling device, practice or game of chance now prohibited by law be legalized, or the remedy, penalty or punishment now provided therefor be in any way diminished.
From 1897 to 1939 the flat prohibition against legalizing any form of gambling was the constitutional public policy of the state. In 1939, however, New Jersey, looking covetously at the potential state revenue which might be derived from pari-mu-tuel betting, amended art. 4, § 7, ¶ 2 so as to make it lawful “to hold, carry on, and operate in this State race meetings whereat the trotting, running or steeplechase racing of horses only may be conducted between the hours of sunrise and sunset on week days only and in duly legalized race tracks, at which the pari-mutuel system of betting shall be permitted.” 1939 NJ.Laws at 1063. The 1939 amendment put the state in the position of having an interest in gambling revenues for the first time since prior to 1844.
When the Constitution of 1947 was adopted it included the general provision that
[n]o gambling of any kind shall be authorized by the Legislature unless the specific kind, restrictions and control thereof have been heretofore submitted to, and authorized by a majority of the votes cast by the people at a special election or shall hereafter be submitted to, and authorized by a majority of the votes cast thereon by the legally qualified voters of the State voting at a general election....
N.J. Const, of 1947, art. 4, § 7, ¶2. An exception authorized bona fide veterans, charitable, educational, religious or fraternal organizations, civic or service clubs, volunteer fire companies and first-aid or rescue squads to conduct bingo or lotto games and to hold raffles. Thus the pre-1844 practice of supporting worthwhile social activities by gambling revenue was substantially restored. In 1969 art. 4, § 7, ¶2 was amended to authorize the conduct of state lotteries “when the entire net proceeds of any such lottery shall be for State institutions, [sic] State aid for education.” For the statutory enactments pursuant to this authorization, see NJ.Stat.Ann. 5:9-1 to -25 (West 1973). Other forms of gambling still required approval in a statewide referendum. The voters were generally unreceptive.
In 1976, however, the Constitution was amended once more, permitting the legislature to authorize by law the establishment of gambling houses or casinos in the City of Atlantic City, so long as the authorizing legislation “shall provide [that] the State revenues derived therefrom ... be applied solely for the purpose of providing reductions in property taxes, rentals, telephone, gas, electric, and municipal utilities charges of, eligible senior citizens and disabled residents, in accordance with such formulae as the Legislature may by law provide.” N.J. Const, of 1947, art. 4, § 7, ¶ 2.D. Pursuant to that authorization the legislature adopted the statute containing sections 93 and 86.
Unlike the State Lottery Law, N.J.Stat. Ann. 5:9-1 to -25 (West 1973 & Supp.1982), under which the Department of the Treasury is directly in the lottery business, the Casino Control Act authorizes erection of casinos by private investors. The State, however, has a direct financial stake in their operation, since it imposes an annual tax of eight % of gross revenues. N.J.Stat. Ann. 5:12-144 (West Supp.1982). Moreover
IV.
Federal Regulation of Collective Bargaining
Under the regime of Adair v. United States, 208 U.S. 161, 28 S.Ct. 277, 52 L.Ed. 436 (1908), state law interference with efforts of employees to choose their own collective bargaining representatives was largely beyond the reach of congressional enactments, and state law regularly interfered. New Jersey was no exception. See, e.g., Kinane v. Fay, 111 N.J.L. 553, 168 A. 724 (S.Ct.1933); Brennan v. United Hatters of North America, 73 N.J.L. 729, 65 A. 165 (S.Ct.1906) and cases cited therein. In 1930, however, the Supreme Court in Texas & New Orleans Railroad Co. v. Brotherhood of Railway and Steamship Clerks, 281 U.S. 548, 50 S.Ct. 427, 74 L.Ed. 1034 (1930), effectively overruled Adair when it held that the Railway Labor Act of 1926 was constitutional.
Employees shall have the right to organize and bargain collectively through representatives of their own choosing, and shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.
Pub.L. No. 73-67, § 7(a), 48 Stat. 198 (1933). Borrowed from a similar provision in the Railway Labor Act, section 7(a) was intended to establish a federal law right to choose collective bargaining representatives. The NIRA, however, contained no effective enforcement mechanism, and experience under it led to the adoption in 1935 of the NLRA. In that statute Congress carried forward the federal policy announced in the NIRA. It “declared to be the policy of the United States to eliminate ... obstructions to the free flow of commerce ... by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.” 29 U.S.C. § 151 (1976). The first clause of section 7(a) of the NIRA was substantially copied in section 7 of the NLRA:
Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.
49 Stat. 449, 452 (1947); 29 U.S.C. § 157 (1976). But whereas the clause in section 7(a) of the NIRA dealing with coercion of employees in the choice of collective bargaining representatives was-largely preca-tory, section 8 of the NLRA made all forms of such coercion unfair labor practices. 49 Stat. 449, 453 (1947); 29 U.S.C. §§ 159, 160 (1976). Moreover the NLRA created the
When the NLRA was under consideration opponents of the legislation called to the attention of Congress the issue of labor racketeering.
Before Congress next turned major attention to the subject of collective bargaining the Supreme Court was presented with the question of whether state law could determine ineligibility of collective bargaining representatives. In 1943 Florida passed a statute providing for the licensing of union business agents and prohibiting the licensing of persons who were not citizens for more than ten years, who had been convicted of a felony, or who were not of good moral character. 1943 Fla.Laws C. 21968. The Florida statute was enacted after the Supreme Court held in Allen-Bradley Local v. Wisconsin Board, 315 U.S. 740, 62 S.Ct. 820, 86 L.Ed. 1154 (1942), that section 7 of the NLRA did not preempt state prohibition of mass picketing, threats of personal injury, or property damage. When an employer refused to bargain with an unlicensed business agent, the Board held that it committed an unfair labor practice. In the Matter of Eppinger & Russel Co., 56 NLRB 1259 (1944). Meanwhile in a state court the Attorney General of Florida sought injunctive relief against a union and a business agent functioning as such until licenses were obtained. The highest court of Florida enforced the statute. Hill v. State, 155 Fla. 245, 254, 19 So.2d 857 (1944). On the authority of its classic statement in Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941), with respect to the preemptive effect of federal legislation, the Supreme Court reversed, holding:
Since the Lábor Board has held that an employer must bargain with a properly selected union agent despite his failure to secure a Florida license, it is argued that the state law does not interfere with the collective bargaining process. But here, this agent has been enjoined, and if the Florida law is valid he could be found guilty of contempt for doing what the act of Congress permits him to do. Furthermore, he could, under § 14 of the state law be convicted of a misdemeanor and subjected to fine and imprisonment. The collective bargaining which Congress has authorized contemplates two parties free to bargain, and cannot thus be frustrated by state legislation. We hold that § 4 of the Florida Act is repugnant to the National Labor Relations Act.
Congress had not yet reentered the field when the Court had a further opportunity to consider its position that the NLRA preempted state law respecting bargaining representatives. The occasion arose because of the Board’s discretionary rulings, prior to the decision in Packard Co. v. Labor Board, 330 U.S. 485, 67 S.Ct. 789, 91 L.Ed. 1040 (1947), that although foremen were covered by section 7 they were not, generally speaking, an appropriate bargaining unit. In Bethlehem Steel Co. v. New York State Labor Relations Board, 330 U.S. 767, 67 S.Ct. 1026, 91 L.Ed. 1234 (1947), the Court on the authority of Hill v. Florida held that a state labor board could not exercise jurisdiction to consider whether foremen bargaining units would be recognized. Justice Jackson reasoned:
If the two boards attempt to exercise a concurrent jurisdiction to decide the appropriate unit of representation, action by one necessarily denies the discretion of the other. The second to act either must follow the first, which would make its action useless and vain, or depart from it, which would produce a mischievous conflict.
330 U.S. at 776, 67 S.Ct. at 1031. Just such a mischievous conflict occurs in the instant case, since the Board has certified the Union while the Commission’s proposed order will render the union ineffective as a bargaining agent unless it dismisses three key officers. The Board has consistently asserted jurisdiction over the casino industry. El Dorado Club, 151 N.L.R.B. 579 (1965) (Nevada’s extensive regulation of gambling industry and concern over criminal infiltration are not reasons for declining jurisdiction under section 14(c)(1) of the NLRA).
In 1947 the Hill and Bethlehem Steel cases were the Court’s definitive interpretations of the preemptive effect of sections 7 and 8. Thus, when Congress undertook a major revision of the NLRA, it was presented with an occasion to reconsider these holdings. In the Labor Management Relations Act (LMRA), enacted that year, both section 7 and section 8 were amended. In the former, as amended, Congress carried forward the language from the NIRA and the NLRA establishing federal rights of employees to form unions and to bargain collectively through representatives of their own choosing, but added a correlative “right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as recognized in section 8(a)(3).” Labor Management Relations Act of 1947, Pub.L. No. 101, ch. 120, § 7, 61 Stat. 136 (1947). Section 8 was amended by the addition of a subsection dealing with unfair labor practices by unions, and the Board was given jurisdiction over these. Section 10 of the NLRA was amended by the elimination of the exclusive jurisdiction provision, and instead the Act provided that:
[The Board’s] power shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise: Provided, That the Board is empowered by agreement with any agency of any State or Territory to cede to such*826 agency jurisdiction over any cases in any industry (other than mining, manufacturing, communications, and transportation except where predominately local in character) even though such cases may involve labor disputes affecting commerce, unless the provision of the State or Territorial statute applicable to the determination of such cases by such agency is inconsistent with the corresponding provision of this subchapter or has received a construction inconsistent therewith.
29 U.S.C. § 160(a) (1976). Congress also addressed the union racketeering issue, by making it unlawful for employers to pay or labor representatives to receive money or other things of value. That prohibition was made enforceable by federal criminal and civil provisions. Pub.L. No. 101, ch. 120, § 302, 61 Stat. 136 (1947); 29 U.S.C. § 186 (1976). Moreover, certain boycotts and other unlawful combinations were proscribed. Pub.L. No. 101, ch. 120, § 303, 61 Stat. 136 (1947); 29 U.S.C. §§ 186-187 (1976).
The effect of the 1947 legislation was to confirm substantially the Court’s interpretation of the preemptive effect of sections 7 and 8. The amendment to section 10, permitting the Board to cede jurisdiction in certain cases to state agencies, addressed the so-called no-man’s land problem of NLRB declination of jurisdiction and state agency lack thereof which the Bethlehem Steel case created. Such deferral to state agencies could occur, however, only if the state agency was prepared to apply the standards of federal law. But while dealing explicitly with labor racketeering issues in sections 302 and 303 of the LMRA, and while amending section 7, Congress made no change in the federal law respecting eligibility to act as a bargaining representative. The reenactment of the original section 7 as the first clause in the amended section 7 must be considered to be a congressional approval of the holding in Hill that state law on eligibility is preempted. Merrill, Lynch, Pierce, Fenner, & Smith v. Curran, 456 U.S. 353, 102 S.Ct. 1825, 72 L.Ed.2d 182 (1982).
When presented with the question, the Court held that “the [1947] proviso to § 10(a) is the exclusive means whereby States may be enabled to act concerning the matters which Congress has entrusted to the National Labor Relations Board.” Guss v. Utah Labor Board, 353 U.S. 1, 9, 77 S.Ct. 598, 602, 1 L.Ed.2d 601 (1953). The Court had in the interim decided in Automobile Workers v. O’Brien, 339 U.S. 454, 70 S.Ct. 781, 94 L.Ed. 978 (1950), that the strike-vote provisions of the Michigan Labor Mediation Law were preempted by section 7, and in Amalgamated Assn. of Street, Electric Railway & Motor Coach Employees of America, Division 998 v. Wisconsin Employment Relations Board, 340 U.S. 383, 71 S.Ct. 359, 95 L.Ed. 364 (1951), that section 7 preempted the Wisconsin Public Utility Anti-Strike Law. The Guss Court, in support of its holding that the deferral proviso in section 10(a) is the exclusive means whereby state law can be permitted to operate, quoted approvingly this observation in Amalgamated:
The legislative history of the 1947 Act refers to the decision of this Court in Bethlehem Steel Co. v. New York Labor Board, 330 U.S. 767 [67 S.Ct. 1026, 91 L.Ed. 1234] (1947), and, in its handling of the problems presented by that case, Congress demonstrated that it knew how to cede jurisdiction to the states. Congress knew full well that its labor legislation “preempts the field that the act covers insofar as commerce within the meaning of the act is concerned” and demonstrated its ability to spell out with particularity those areas in which it desired state regulation to be operative.
353 U.S. at 9, 77 S.Ct. at 602 (quoting 340 U.S. at 397-98, 71 S.Ct. at 367-368). Five years after the Guss decision, in holding that a state court could not set aside a collective bargaining agreement violative of an Ohio antitrust law, the Court reiterated the authority of Hill v. Florida, Automobile Workers v. O’Brien, and Amalgamated Association v. Wisconsin Employment Relations Board. See Local 24, International Brotherhood of Teamsters v. Oliver, 358 U.S. 283, 296, 79 S.Ct. 297, 304, 3 L.Ed.2d
The same year that the Court reiterated the Hill preemption rule in Teamsters Union v. Oliver Congress turned its attention once again to the collective bargaining relationship. In the Labor Management Reporting and Disclosure Act (LMRDA) it dealt even more explicitly than in section 302 of the LMRA with the problems of corruption within union leadership and of undemocratic conduct of internal union affairs. Pub.L. No. 86-257, 73 Stat. 519 (1959). The 1959 Act imposed elaborate reporting requirements and enacted a “bill of rights” for members. Title VII of the LMRDA amended the LMRA in certain respects, none of which is here relevant. Section 603(b) provides that nothing in the first six titles should be construed “to impair or otherwise affect the rights of any person under the National Labor Relations Act, as amended.” Pub.L. No. 86-257, § 603(b), 73 Stat. 519 (1959); 29 U.S.C. § 523(b) (1976). The LMRDA also established a number of criminal sanctions. See, e.g., 29 U.S.C. §§ 501, 502, 503-522 (1976). Because many of the proscribed activities were already crimes under state law and not protected activities under section 7 of the NLRA as amended, Congress decreed in section 604 of the LMRDA that it would not “impair or diminish the authority of any State to enact and enforce general criminal laws with respect to robbery, bribery, extortion, embezzlement, grand larceny, burglary, arson, violation of narcotics laws, murder, rape, assault with intent to kill, or assault which inflicts grievous bodily injury, or conspiracy to commit any such crimes.” 29 U.S.C. § 524 (1976). This provision was included in recognition of the holdings in Garner v. Teamsters Union, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228 (1953), and San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), that in the field of labor law preemption might apply not only with respect to activity protected by section 7, but also with respect to activity prohibited by a federal regulatory scheme. Those cases also influenced Congress to include in section 603(a) of the LMRDA a savings clause preserving state law remedies for breach of fiduciary duties. 29 U.S.C. § 523(a) (1976). Finally, and of most immediate significance, Congress in section 504 of the LMRDA enacted for the first time a provision dealing explicitly with disqualifications for holding union office.
Thus in 1959 Congress, fully aware of the holding in Hill v. Florida that section 7 preempted state disqualification laws, of the rule of statutory interpretation applied in Amalgamated Association of Employers v. Wisconsin Employment Relations Board and Guss v. Utah Labor Board that congressional deference to state law must be specific, and of the holdings in Garner v. Teamsters Union, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228 (1953), and Sah Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), that even state regulation of activity prohibited by federal law is preempted, chose to legislate on the subject of union officer disqualification with no deference to state authority, either with respect to parallel disqualification criteria or with respect to conflicting disqualification criteria. Since both disqualification and preemption were carefully considered in the same legislation no intention can be attributed to Congress other than preservation of the Hill v. Florida rule. Indeed the Senate Report on the LMRDA is explicit in this respect. “Section 305(a) is designed to further protect union members’ and the public interest by establishing certain standards for persons holding union office—a matter within the purview of the Federal Government.” S.Rep. No. 187, 86th Cong., 1st Sess., reprinted in 1959 U.S.Code Cong. & Ad.News 2318, 2366 (emphasis supplied). Although the Commission and the Division urge otherwise, nothing in the LMRDA casts any doubt upon the continued authority of the Hill v. Florida interpretation of section 7 of the NLRA.
We note at this point that there are in labor law two separate preemption doctrines. The first, covering protected activity, is absolute.
When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield. To leave the States free to regulate conduct so plainly within the central aim of federal regulation involves too great a danger of conflict between power asserted by Congress and requirements imposed by state law.
San Diego Building Trades Council v. Gar-mon, 359 U.S. at 244, 79 S.Ct. at 779. On the other hand, where the activity in question is not specifically protected by section 7 but is nevertheless federally regulated, a case by case determination of the interaction between state and federal regulatory schemes is required. E.g., Farmer v. Carpenters, 430 U.S. 290, 296, 97 S.Ct. 1056, 1061, 51 L.Ed.2d 338 (1977); Motor Coach Employees v. Lockridge, 403 U.S. 274, 279-98, 91 S.Ct. 1909, 1914-1924, 29 L.Ed.2d 473 (1971); Linn v. United Plant Guard Workers of America, Local 114, 383 U.S. 53, 59-60, 86 S.Ct. 657, 661-662, 15 L.Ed.2d 582 (1966). The Hill v. Florida rule, and this case, fall in the first category. Choice of a bargaining representative is totally protected by section 7, except to the extent that the bargaining representative may be disqualified under section 503(a) of the LMRDA. No section 504 LMRDA disqualification applies to this Union’s officers.
The Commission and the Division place their chief reliance on one post-LMRDA case, DeVeau v. Braisted, 363 U.S. 144, 80 S.Ct. 1146, 4 L.Ed.2d 1109 (1960), which they contend overruled Hill v. Florida. DeVeau involved a challenge on preemption grounds to the constitutionality of section 8 of the New York Waterfront Commission Act of 1953, which disqualified from office in any waterfront labor organization convicted felons who had not been pardoned. The New York legislation and companion legislation in New Jersey were adopted pursuant to an interstate compact between those states. The compact was submitted to Congress, as required by article I, section 10 of the Constitution, and after hearings in both the House and Senate was approved. Nevertheless a disqualified union officer contended that the state statute was preempted by sections 1 and 7 of the NLRA. Justice Frankfurter rejected that contention, observing:
In light of the purpose, scope and background of this New York legislation and Congress’ relation to it, such an inference of incompatibility has no foundation. In this case we need not imaginatively summon the likely reaction of Congress to the state legislation, as a basis for ascertaining whether due regard for congressional purpose bars the state regulation. Here the States presented their legislative program to cope with an urgent local problem to the Congress, and the Congress unambiguously supported what is the core of this reform. Had § 8 [of the New York law] been written into the compact, even the most subtle casuistry could not conjure up a claim of pre-emption.
363 U.S. at 153, 80 S.Ct. at 1151. He also rejected the contention that the enactment of the LMRDA, subsequent to congressional approval of the compact, vitiated prior approval. Frankfurter’s opinion did not command a majority, but even in speaking for himself and the three justices who joined in it he was careful not to intimate that Hill v. Florida was overruled. The absence of any such suggestion is significant, since Frankfurter had dissented in Hill v. Florida. 325 U.S. at 547, 65 S.Ct. at 1377. Obviously he was unable in DeVeau to find support for the adoption of his dissenting position. Justice Brennan, whose separate brief opinion was critical for the judgment, made it clear that he relied on congressional intent in approving the compact. 363 U.S. at 162, 80 S.Ct. at 1156. The dissenting justices, who noted that the justices in the majority were not overruling Hill v. Florida, disagreed only about the proper construction of the compact. 363 U.S. at 161, 163, 80 S.Ct. at 1155, 1156 (Douglas, J., dissenting). The DeVeau case cannot, therefore, be read as impairing the authority of Hill v. Florida.
The Commission and the Division also urge that Hill v. Florida is distinguishable because the Florida statute there involved was of a general nature, while section 93 is restricted to the casino industry, which is a matter of particular state concern. For several reasons we must reject that effort to avoid the precedential effect of Hill v. Florida. In the first place sections 86 and 93 are not even restricted to casino employees. They cover casino hotel employees, who by definition do not work in the casinos. It is too late to suggest that places of public accommodation are not engaged in interstate commerce. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964). Moreover, even if the state legislation were restricted to employees employed directly in the casinos we would find the argument based on the state’s deep interest in that business unpersuasive. Essentially the same argument was rejected when as a reason for avoiding federal preemption, states asserted their deep interest in the operation of state franchised public utilities. Amalgamated Association of Employees v. Wisconsin Employment Relations Board, 340 U.S. 383, 71 S.Ct. 359, 95 L.Ed. 364 (1950). Congress has given the states the option, with respect to areas in which they have a deep interest, of relegating activities in those areas to political subdivisions. 29 U.S.C. § 152(2) (1976); NLRB v. Natural Gas Utility District, 402
We conclude, therefore, that none of the arguments advanced by the Commission and the Division can avoid the controlling law announced in Hill v. Florida. Section 93 of the Casino Control Act is preempted by section 7 of the NLRA insofar as it purports to confer on the Commission authority to disqualify as bargaining representatives the duly elected or selected officials of a union certified by the Board as exclusive bargaining agent. Thus the trial court’s doubts about the Union’s ultimate success on the merits, insofar as they were based on doubts about the preemptive effect of section 7, were groundless.
V.
Federal Regulation of Pension Funds
Following the enactment in 1959 of the LMRDA the next relevant Congressional legislation in the field of employer-employee relations was the enactment, in 1974, of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001-1381 (1976). ERISA embodies a comprehensive legislative scheme which spells out in great detail the respective roles of the states and the federal government with respect to employee benefit plans. See 29 U.S.C. § 1001 (congressional findings and declaration of policy). Section 514(a) of ERISA provides:
Except as provided in subsection (b) of this section, the provisions of this sub-chapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under section 1003(b) of this title.
29 U.S.C. § 1144. The two plans of which Mr. Gerace is a trustee are employee benefit plans falling within the coverage of ER-ISA, and thus within section 514. Under the statute “[t]he term ‘State law’ includes all laws, decisions, rules, regulations, or other State action having the effect of law, of any State.” 29 U.S.C. § 1144(c)(1). “The term ‘State’ includes ... any agency ... which purports to regulate, directly or indirectly, the terms and conditions of employee benefit plans covered by this subchapter.” 29 U.S.C. § 1144(c)(2). We have previously discussed the legislative history of ERISA’s comprehensive preemption section, finding that it “make[s] plain that the preemptive intent is just as broad as its language suggests.” Buczynski v. General Motors Corp., 616 F.2d 1238, 1250 (3d Cir.1980), aff’d sub nom. Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 101 S.Ct. 1895, 68 L.Ed.2d 402 (1981).
Despite section 514 the Commission and the Division contend that section 93(b) does not “relate to any employee benefit plan.” That contention is belied by the plain language of the New Jersey statute:
No labor organization ... may administer any pension or welfare funds, if any*831 officer ... is disqualified in accordance with the criteria contained in section 86 of [the] act.
N.J.Stat.Ann. 5:12 — 93(b). These words cannot seriously be said not to “relate to any employee benefit plan.” 29 U.S.C. § 1144(a). ERISA states that statutes relating to employee benefit plans are preempted even when their effect is indirect. 29 U.S.C. § 1144(c)(2). These preemption subsections have been definitively construed by the Supreme Court. “ERISA’s authors clearly meant to preclude the States from avoiding through form the substance of the preemption provision.” Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 525, 101 S.Ct. 1895, 1907, 68 L.Ed.2d 402 (1981). In light of that construction the contention that section 93 and ERISA may lawfully coexist is fanciful.
VI
Propriety of Injunctive Relief
Since in Parts IV and V of this opinion we conclude that the Union’s claims that section 93 is preempted by section 7 of the NLRA and section 514 of ERISA are meritorious, we turn to the question whether the requested preliminary injunctive relief against the proceeding pending before the Commission should have been granted. Federal law standards for such relief are clear. They include the likelihood of the moving party succeeding on the merits at final hearing, the likelihood of irreparable harm to the moving party pendente lite if no relief is granted, the possibility of harm to other interested parties from the grant of such relief, and the public interest. E.g., Constructors Association v. Kreps, 573 F.2d 811, 815 (3d Cir.1978); Oburn v. Shapp, 521 F.2d 142, 147 (3d Cir.1975).
Our discussion in Parts IV and V is dis-positive of the first factor. Since section 93 cannot coexist with section 7 of the NLRA and section 514 of ERISA, the district court should have recognized that sooner or later the Union’s objection to the Division’s efforts to deprive it of dues revenues and make it ineligible to maintain pension and welfare funds must prevail.
Moreover the application of the second factor, irreparable harm pendente lite, seems plain. Irreparable harm pendente lite includes at least that kind of harm which cannot be rectified after final hearing by an award of money damages. Clearly that was threatened when the Division moved before the Commission for an order disqualifying the Union from collecting dues from its 8000 plus members employed by casino hotels. Had the order gone into effect, the Union would either have been deprived of the financial wherewithall to carry on its collective bargaining responsibilities or have deposed those duly elected officers whom the membership selected as their collective bargaining representatives. In neither case would it be possible, long after the event, to measure in money and compensate for the harm to the ongoing collective bargaining relationship from intangibles such as erosion of members’ confidence in their chosen collective bargaining organization, delay in the process of grievances, or disruption of internal union affairs. The Division, while pressing forward with its effort to obtain disqualification, makes the disingenuous argument that “[a]t the conclusion of the hearing, the Commission could find the Union totally qualified, in which case the present proceeding might arguably become moot.” Brief for Ap-pellees/Cross Appellants (Division) at 48. In fact, however, in the absence of a preliminary injunction the Division pressed forward, diverting the Union’s efforts to the defense of that illegal proceeding rather than the performance of its normal functions as the certified bargaining representative of its members.
Nor can the Division or the Commission point to any irreparable harm to them or to the casino industry from an injunction pending a judicial resolution of the contention that section 93 cannot be applied to the Union. Both point to the necessity for maintaining integrity in the casino industry, but there are ample means available to that end short of disqualifying duly certified bargaining representatives. No showing was made in the district court that the
Finally there is the matter of the public interest. Obviously the first place to look for that interest is the governing law, which in this ease is federal. The extent of the national public interest in preventing state agencies from purporting to exercise a jurisdiction which is the exclusive preserve of the Board may be judged by cases recognizing that the Board can obtain injunctive relief against the exercise of such jurisdiction by state courts both before and after the General Counsel has filed a Board charge. NLRB v. Nash-Finch Co., 404 U.S. 138, 92 S.Ct. 373, 30 L.Ed.2d 328 (1971); Capital Service, Inc. v. NLRB, 347 U.S. 501, 74 S.Ct. 699, 98 L.Ed. 887 (1954).
Against the clear national public interest in preventing erosion of the exclusive role of section 7 in determining collective bargaining representatives the Commission and the Division have arrayed the artillery of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943), and Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). The district court was unpersuaded by these big guns, and so are we.
Pullman abstention would at most have required that the district court retain jurisdiction while a narrowing construction of section 93 which might avoid the constitutional adjudication was sought from a New Jersey tribunal. Before the complaint was filed the Commission had already ruled that it could not consider the Union's preemption claim. Moreover the defendants never suggested any construction of section 93 which could avoid deciding the preemption issue. The Union was certified by the Board with the present officers. Section 93 says that it may be disqualified if the Commission decides some of them fall within the criteria in section 86. Pullman abstention would be an exercise in futility. Moreover, even if the district court had decided to abstain pending the Commission’s interpretation of section 93 it would still have been obliged to consider the grant of preliminary injunctive relief from harm pen-dente lite. New Jersey-Philadelphia Presbytery v. New Jersey State Board of Higher Education, 654 F.2d 868, 886 (3d Cir.1981).
Burford v. Sun Oil Co. has no application. As the district court noted, the questions of state law presented by sections 93 and 86 are neither technical nor complex. 536 F.Supp. at 325. Moreover no argument can be entertained based on disruption of a state administrative scheme in a case in which the court is asked to decide whether the very existence of that scheme violates a paramount federal statute. A fortiori that is so when, as here, the state agency lacks authority even to entertain the preemption challenge.
As to the Younger v. Harris line of cases, we reiterate the point made in New Jersey-Philadelphia Presbytery v. New Jersey State Board of Higher Education, that, absent federal district court intervention, state agency orders which operate as prior restraints upon the exercise of federally protected rights may by virtue of the final judgment rule in 28 U.S.C. § 1257 (1976), escape any federal appellate review for long periods. 654 F.2d at 884. Moreover, the federal policy of preventing state courts from eroding rights guaranteed by section 7 is so important that as a matter of federal law a state court is without power to hold one in contempt for violating an order it
Given that the Union’s contentions based on section 7 of the NLRB and section 514 of the LMRDA are meritorious, that there was a strong likelihood of harm pen-dente lite to its status as a collective bargaining representative, that no commensurate harm to the defendants would have resulted from the grant of pendente lite relief, and that a strong national public interest exists in preventing the unlawful exercise of state agency jurisdiction in a preempted area, we hold that the trial court should have granted a preliminary injunetion pending final hearing against the enforcement of section 93(b) in any manner inconsistent with 29 U.S.C. § 504.
VII
Overbreadth and Vagueness
Because the statutory supremacy issues which we have discussed in Parts III and IV suffice to dispose of this appeal, we have no occasion to pass upon the Union’s over-breadth and vagueness contentions. Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974).
VIII
Conclusion
The order appealed from in No. 82-5210 will be reversed and the case remanded to the district court for the entry of an order enjoining the Commission and the Division from taking any action, pending final hearing, to enforce section 93 against the Union. The cross appeals, Nos. 82-5234 and 82-5260, will be dismissed for lack of jurisdiction.
. The district court opinion is reported. Hotel and Restaurant Employees and Bartenders International Union Local v. Danzinger [sic ], 536 F.Supp. 317 (D.N.J.1982).
. The court found:
The facts essential to the determination of the motion are as follows:
1. Plaintiff Hotel and Restaurant Employees and Bartenders International Union Local 54 is an unincorporated labor organization within the meaning of § 2(5) of the National Labor Relations Act, as amended, infra, representing, inter alia, about 8,000 licensed employees of the casinos and casino hotels in Atlantic City, New Jersey, in collective bargaining and other matters affecting employer-employee relations. Plaintiff Frank Ge-race is president of Local 54.
2. Frank Gerace is a trustee of the Hotel Employees and Restaurant Employees and Bartenders International Union Pension Fund, as well as the Hotel Employees and Restaurant Employees and Bartenders International Union Health & Welfare Fund. Local 54, through its officers, participates in the operation of these funds, both of which are employee benefit plans within the meaning of the Employee Retirement Income Se*820 curity Act of 1974, infra. (Plaintiffs’ Exhibit 5).
3. Local 54 filed its annual registration statement as required by the Casino Control Act in 1978. On May 12, 1981, the defendant Division of Gaming Enforcement, following its investigation of the applicant, stated its objections to the application. (Plaintiffs’ Exhibit 2).
4. The Casino Control Commission thereupon ordered that hearings on the subject of Local 54’s registration commence on September 9, 1981. (Affidavit of Frank Gerace, August 17, 1981, ¶ 2; Defendants’ Exhibit 3).
5. Local 54 has posed to the Casino Control Commission certain of its objections to the registration requirement, the conduct of its officers being the subject of a hearing, and to the possibility that the sanctions of § 93 of the Casino Control Act may be imposed. (Plaintiffs’ Exhibit 4). The Commission has held that it is without jurisdiction to reach the constitutional objections to § 93. (Plaintiffs’ Exhibit 4).
6.The Casino Control Commission has adjourned the hearing scheduled for September 9, 1981, pending determination of the instant motion for preliminary relief. (Defendants’ Exhibit 3).
536 F.Supp. at 324.
. The October 12, 1982 order obviously was not called to the district court’s attention in connection with the Rule 60(b) motion, but it is a matter of public record which the parties called to our attention and of which we can properly take judicial notice.
. “The commission may for the purpose of this subsection waive any disqualification criterion consistent with the public policy of this act and upon a finding that the interests of justice so require.” N.J.Stat.Ann. 5:12-93(b) (West Supp.1982).
. See Justice Bodine’s discussion of the early common law in Dombrowski v. State, 111 N.J.L. 546, 168 A. 722 (S.Ct.1933). Note, The Casino Act: Gambling’s Past and the Casino Act’s Future, 10 Rut.-Cam.L.J. 279 (1979).
. Robert L. Hale, Professor of Law, Columbia University, in hearings on the NLRA explained that although Adair was not explicitly overruled by Texas & New Orleans Railroad Co., that was the practical effect of the decision. To Create a National Labor Board, Hearings on S. 2926 Before The Senate Committee on Education and Labor, 73d Cong., 2d Sess. 52 (1934) (statement of Robert L. Hále, Professor of Law, Columbia University).
. Hearings on S. 2926 Before the Senate Committee on Education and Labor, 73d Cong., 2d Sess. 606-07, 645-46, 745-52, 979 (1934) (statements of William B. Donham, Dean, Harvard Business College; Howard Goodman, Manager, Goodman Manufacturing Co.; Charles R. Hook, Pres., American Rolling Mill, Co.; William F. Dunne, Member, National Committee of the Trade Union Unity League).
. LaSane’s extortion conviction would be disqualifying under 29 U.S.C. § 504(a) had it occurred within five years. His 1973 conviction falls well outside the time fixed in the federal law.
. § 504. Prohibition against certain persons holding office
(a) Membership in Communist Party; persons convicted of robbery, bribery, etc.
No person who is or has been a member of the Communist Party or who has been convicted of, or served any part of a prison term resulting from his conviction of, robbery, bribery, extortion, embezzlement, grand larceny, burglary, arson, violation of narcotics laws, murder, rape, assault with intent to kill, assault which inflicts grievous bodily injury, or a violation of subchapter III or IV of this chapter, or conspiracy to commit any such crimes, shall serve—
(1) as an officer, director, trustee, member of any executive board or similar governing body, business agent, manager, organizer, or other employee (other than as an employee performing exclusively clerical or custodial duties) of any labor organization, or
(2) as a labor relations consultant to a person engaged in an industry or activity affecting commerce, or as an officer, director, agent or employee (other than as
an employee performing exclusively clerical or custodial duties) of any group or association of employers dealing with any labor organization, during or for five years after the termination of his membership in the Communist Party, or for five years after such conviction or after the end of such imprisonment, unless prior to the end of such five-year period, in the case of a person so convicted or imprisoned, (A) his citizenship rights, having been revoked as a result of such conviction, have been fully restored, or (B) the Board of Parole of the United States Department of Justice determines that such person’s service in any capacity referred to in clause (a) or (2) would not be contrary to the purposes of this chapter. Prior to making any such determination the Board shall hold an administrative hearing and shall give notice of such proceeding by certified mail to the State, county, and Federal prosecuting officials in the jurisdiction or jurisdictions in which such person was convicted. The Board’s determination in any such proceeding shall be final. No labor organization*828 or officer thereof shall knowingly permit any person to assume or hold any officer or paid position in violation of this subsection.
(b) Penalty for violations
Any person who willfully violates this section shall be fined not more than $10,000 or imprisoned for not more than one year, or both.
29 U.S.C. § 504 (1976).
. The New Jersey solid waste industry has frequently been so identified.
. Cf. Amalgamated Clothing Workers v. Rich-man Bros., 348 U.S. 511, 75 S.Ct. 452, 99 L.Ed. 600 (1955) (28 U.S.C. § 2283 prevents injunction against state court proceeding in action by Union rather than Board).