Chamber of Commerce of the United States v. Robert B. Reich, Secretary, United States Department of Labor

Citations: 83 F.3d 442; 317 U.S. App. D.C. 330; 152 L.R.R.M. (BNA) 2202; 1996 U.S. App. LEXIS 10893; 1996 WL 238939Docket: 95-5242

Court: Court of Appeals for the D.C. Circuit; May 10, 1996; Federal Appellate Court

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In the case of Chamber of Commerce of the United States v. Robert B. Reich, the United States Court of Appeals for the D.C. Circuit denied a suggestion for rehearing en banc regarding a panel's ruling that the National Labor Relations Act (NLRA) preempts certain government actions affecting collective bargaining. The court concluded that a majority of active judges did not support rehearing. Judges Wald and Tatel dissented, arguing for the necessity of an en banc hearing. Judge Wald expressed concerns about the panel's reliance on preemption analysis, questioning its applicability to federal laws influencing bargaining power. She noted that Machinists preemption doctrine is traditionally applied to restrict state interference in economic self-help during collective bargaining, but the panel's decision extended this doctrine to federal actions, which she found problematic. Wald cited precedent cases to illustrate the consistent application of Machinists preemption in state contexts, while questioning the analogy's validity when applied to federal circumstances, particularly referencing NLRB v. Insurance Agents’ International Union, which limited the Board's authority to regulate economic actions in collective bargaining.

The excerpt analyzes the jurisdictional relationship between the National Labor Relations Act (NLRA) and the Procurement Act, focusing on whether the President can restrict the use of permanent striker replacements by employers contracting with the government, despite the NLRA's provisions on economic self-help in labor disputes. It raises the question of preemption doctrine applicability to federal laws impacting collective bargaining. The discussion references past court cases where boundaries between the NLRA and other laws, such as federal antitrust laws and RICO, were examined, highlighting courts' reliance on legislative intent and policy goals.

In previous rulings, such as AFL-CIO v. Kahn, the court found that the NLRA limits the President's procurement authority only if it undermines collective bargaining, while the Third Circuit in Contractors Association of Eastern Pennsylvania v. Secretary of Labor concluded that the NLRA does not restrict federal contracting power. Different theories on this boundary have emerged: the government argues the NLRA imposes no limits on the President’s proprietary actions, while appellants believe the NLRA fully protects collective bargaining processes from federal influence. The panel also suggested that the NLRA could permit presidential procurement policies that indirectly affect bargaining terms if not aimed at altering the bargaining process itself.

Significant uncertainty exists regarding the correct interpretation of the panel's decision to invalidate the Executive Order, which has substantial implications for federal procurement policy and affects millions of federal employees. The decision is difficult to reconcile with a prior in banc ruling in Kahn and merits thorough examination by the entire court. Judge Tatel, dissenting from the denial of rehearing, emphasizes that the case raises critical questions about the use of the preemption doctrine to assess the legality of an Executive Order under the National Labor Relations Act (NLRA). He highlights the need to determine if the government is acting as a "proprietor" or a "regulator" in relation to the NLRA, which could significantly impact the President's authority in setting federal procurement policy and acting in other areas. The distinction between federal and state regulation of economic tools is crucial; while state regulations are preempted under certain conditions, federal actions may face a lower threshold if framed as conflicts between federal statutes. Although the panel's opinion touches on statutory construction, it ultimately relies on preemption doctrine, which may not be the most appropriate analytical framework.