Metropolitan Airports Commission - Granicus

Metropolitan Airports Commission

Management and Operations Committee

Amendment

Regular Monthly Meeting on Monday, October 07, 2013 at 1:00:00 PM

www.metroairports.org

MEMORANDUM ITEM 6

TO: Management & Operations Committee FROM: Thomas W. Anderson, General Counsel (612-726-8178) Cameron Boyd, Attorney (612-726-8124) SUBJECT: SERVICE EMPLOYEES INTERNATIONAL UNION (SEIU)

PRESENTATION DATE: October 7, 2013 We have asked the law firm of Briggs and Morgan to provide a legal opinion regarding the issues raised in correspondence from the Service Employees International Union (SEIU) and Airlines for America with respect to the SEIU’s requests for worker retention and labor peace agreements in Limited Airside Services License Agreements at MSP. This matter will be addressed during the Management & Operations Committee during agenda item 6. Given the nature of the issues raised, Chair Boivin and Executive Director/CEO Jeffrey Hamiel have asked that this opinion be published with the Management & Operations committee materials. Please contact with me with any questions. Attachment: Legal Opinion: Market participant exception to labor law preemption as it applies to the worker retention and labor peace agreements proposed by SEIU Local 26

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MEMORANDUM

TO: Thomas W. Anderson, General Counsel

Cameron Boyd, Attorney

FROM: Briggs and Morgan, P.A.

DATE: October 4, 2013

RE: Market participant exception to labor law preemption as it applies

to the worker retention and labor peace agreements proposed by

SEIU Local 26

I. Introduction

As requested, we have researched the issues concerning SEIU Local 26’s proposed

labor peace and worker retention agreements that it wants the MAC to include in limited

airside services agreements (LASAs) and commercial service license agreements

(CSLAs) at the Minneapolis-St. Paul International Airport (MSP). Below is our analysis

of whether the proposed provisions would be preempted by federal labor law for each of

the four categories of operators the MAC asked about: (1) airline subsidiary companies

that perform aviation-related activities (aircraft cleaning, fueling, etc.) for which a LASA

is required, (2) companies not affiliated with airlines performing aviation-related

activities for airlines for which a LASA is required, (3) companies providing landside or

commercial services to airlines, including services that may be perceived by the public to

be MAC-provided services (cart driving, wheelchair pushing, etc.) and (4) companies

providing landside services directly to the MAC (e.g., porter services) which are

performed directly under a MAC contract other than a LASA.

For the reasons stated below, we expect that the imposition of either a labor peace

agreement or a worker retention agreement by the MAC in LASAs with airline

subsidiaries and non-airline subsidiaries performing aviation-related activities for airlines

would likely be preempted by federal labor law because the MAC is not acting in a

proprietary capacity by contracting for goods or services directly with these entities.

Similarly, imposing these provisions on companies that provide landside or commercial

services to airlines would also likely be preempted by federal labor law. In contrast,

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imposing these provisions on companies that provide landside services directly to the

MAC would likely not be preempted because in this situation the MAC is contracting for

goods and services that are provided directly to the MAC.

Additionally, the MAC needs to be cognizant of the potential for a lawsuit against

the MAC if it imposes a labor peace or a worker retention agreement on contractors that

is later found to be preempted by federal labor law. Under 42 U.S.C. § 1983, there is a

potential cause of action against a government entity for damages caused by government

action that deprives a person or company of federal statutory rights. If an entity is

required by the MAC to agree to the SEIU’s proposed agreements as a condition of doing

business at MSP, and the MAC’s actions are later determined to be preempted, entities

harmed by the MAC’s actions have the right to sue the MAC for damages under 42

U.S.C. § 1983.

II. SEIU Local 26 has proposed that a labor peace and worker retention

agreements be included in all LASAs at MSP

The proposed labor peace agreement requires that as a condition of operating on

airport property, a licensee is required to be or must become signatory to a valid

collective bargaining agreement with a labor organization that represents employees who

perform services at the airport. The labor peace agreement must contain a no strike

pledge for the duration of the LASA and provision that requires any dispute relating to

employment of the employees to be submitted to final and binding arbitration. The

licensee must also require any work done by subcontractors or under the control of a

licensee to be performed under a collective bargaining agreement that contains the same

provisions. The licensee is relieved of its obligations with respect to a labor organization

if the labor organization places conditions on a no strike pledge that the MAC finds, after

notice and hearing, to be arbitrary or capricious.

Additionally, the SEIU proposed a worker retention agreement that would require

a successor licensee contracted to replace a predecessor licensee providing essentially the

same services at MSP to offer jobs to all of the predecessor licensee’s employees who

worked for at least 90 days prior to the successor commencing work at MSP. The

successor would have to keep the predecessor’s employees for at least 90 days following

the transfer of the contract, and the successor could only terminate the predecessor’s

employees during this 90-day period for cause. What constitutes “cause” is undefined.

The successor retains the right to layoff employees during the initial 90-day period if

there is excessive staffing. The predecessor must provide the successor with information

about the predecessor’s employees at least 60 days before the successor takes over, and

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all of the predecessor’s employees must be notified at least 30 days before the successor

takes over that the successor is required to offer them employment.

SEIU Local 26 has argued that the mere fact that the MAC collects a privilege fee

under its LASAs is sufficient to allow the MAC to require the labor peace agreement, and

that this collection of a privilege fee is sufficient to fit within the market participant

exception to preemption. Therefore, a brief history of the preemption under federal labor

law and the market participant exception follows below before the analysis of each of the

four categories of operators at MSP.

III. Preemption Under the NLRA and the Market Participant Exception

The discussion of preemption of state activity must begin with the United States

Supreme Court’s landmark decision in Building Trades Council (San Diego) v. Garmon,

359 U.S. 236 (1959). In that case, a union engaged in picketing in an attempt to compel

an employer to sign a union shop contract with a minority union. The employer was

unable to bring the matter before the National Labor Relations Board (NLRB) because

the NLRB declined jurisdiction. A California state court determined that the union’s

conduct violated the state’s general tort law and a specialized code of state labor

regulation. The California state court awarded damages against the union. The Supreme

Court reviewed the lower court’s decision and determined that the NLRB had not

decided, and that it was unclear, whether the union’s conduct was either protected or

prohibited by the National Labor Relations Act (NLRA). The court ruled that if

regulatory action by the state attempted to regulate activity that the NLRA arguably

protects or prohibits, the state’s jurisdiction is displaced and the state’s ability to regulate

such activity is preempted by the NLRA. The rationale is that the NLRA created a

federal scheme with a single tribunal that regulated and shaped a uniform national labor

policy. Thus, states are not free to regulate activities that are potentially subject to

federal regulation and may conflict with national labor policy. Id. at 246.

The Garmon preemption principle has remained at the core of the Supreme

Court’s preemption doctrine and has been applied in a variety of ways. In Wisconsin

Dept. of Industry v. Gould, Inc., 475 U.S. 282 (1986), the Supreme Court held that a

Wisconsin statute which prohibited the state from procuring any product manufactured or

sold by persons or firms who had repeatedly violated the NLRA was preempted by

federal labor law. The Supreme Court held that the Wisconsin statute acted as a

supplemental remedy for violations of the NLRA and found that it was comparable to an

award of civil damages for picketing which was previously found preempted in Garmon.

A significant addition to the Garmon preemption rule has emerged in some

instances where the subject matter is neither arguably protected nor arguably prohibited

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by the NLRA, but where important reasons exist for leaving the area unregulated. This

situation has occurred mainly in cases that deal with state regulation of parties’ use of

economic weapons in a labor dispute. In Machinists Lodge 76 v. Wisconsin Employment

Relations Commission, 427 U.S. 132 (1976), a state labor board issued an injunction

against a union and its members who refused to work overtime in order to bring pressure

on an employer during contract negotiations. The Supreme Court concluded that

Congress intended certain forms of economic self-help to go unregulated by any form of

governmental power because these types of activities are among the permissible

economic weapons available. The Supreme Court held that this type of activity must be

free of any regulation by states so as not to frustrate a comprehensive federal law of labor

relations. Id. at 155. Thus, states may not regulate any conduct intended by Congress to

be left unregulated and controlled by the free-play of economic forces.

Another example of preemption was found in Golden State Transit Corp. v. City

of Los Angeles (Golden State I), 475 U.S. 608 (1986). In Golden State I, the employer

sought renewal of a taxi cab franchise, and the city withheld renewal of the franchise

until a strike by taxi drivers was settled by the employer. The Supreme Court held that

the city’s action in conditioning renewal of a taxi cab franchise on settlement of a labor

dispute by a certain date was preempted by the NLRA. Because the city was not allowed

to restrict a transportation employer’s ability to resist a strike via direct prohibition or

regulation of strike activity (which is governed by federal labor law), the city was

prohibited from intruding into the bargaining process by conditioning renewal of the taxi

cab franchise upon settlement of the strike or by imposing a deadline on the free play of

economic power in the collective bargaining process. The court explained that Congress

intended for economic forces during bargaining to be available, and therefore, states and

municipalities were prohibited from imposing any kind of restriction on economic

weapons of self-help. Thus, the Supreme Court held preempted the city’s action in

withholding the taxi franchise until the strike was settled.

In 1993, the Supreme Court accepted and relied upon the distinction between state

government in its role as a regulator of economic activity and its role as a market

participant purchasing goods and services. In Building & Construction Trades Council

(Metropolitan District) v. Associated Builders & Contractors of Massachusetts/Rhode

Island (Boston Harbor), 507 U.S. 218 (1993), the Court held that when state government,

as an owner and manager of property, interacts with a private participant in the market

place, state government is not subject to preemption because the preemption doctrines

apply only to state regulation, but not when the state acts as a proprietor or market

participant. In this case, it was permissible for a state agency to approve and adopt a

project labor agreement (PLA) that was negotiated with a union which required any

contractor on the project to recognize a union as a bargaining agent for all of its craft

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employees, abide by the PLA, secure workers through the union’s hiring hall and to

subject all of the employees to the PLA’s union security requirements. These provisions,

if required by a private purchase of construction services, would be permissible under

Section 8(f) of the NLRA. It was argued that these requirements were preempted by

federal labor law. The Supreme Court disagreed. The Court reasoned that when the state

acts as a regulator, it is performing a role that is characteristically a government role

rather than a private role. In contrast, when the state agency is acting as a private

purchaser of construction services, it is not engaging in a governmental or regulatory

capacity. Because a private purchaser of construction services could require a PLA, the

court found there was no qualitative difference when a government entity acts in the

capacity of a private purchaser of goods or services in the marketplace. Id. at 227.

The distinction between what is permissible proprietary conduct under Boston

Harbor and regulatory conduct which is preempted has been refined by the federal

courts. In Cardinal Towing & Auto Repair, Inc. v. City of Bedford, 180 F.3d 686 (5th

Cir.

1999), the court explained that if a state or municipality acts as a participant in the market

and does so in a narrow and focused manner that is consistent with the behavior of other

market participants, the action is not a regulation subject to preemption. Id. at 691. The

court also developed a two-part test to determine when government action was

sufficiently narrow and focused to rule out a regulatory purpose. First, the action should

be compared to the conduct of similarly-situated private parties to determine if the action

advances “the entity’s own interest in its efficient procurement of needed goods and

services.” Second, the court reviews whether the narrow scope of the challenged action

can overcome the inference that the entity’s “primary goal was to encourage a general

policy rather than address a specific proprietary problem.” Id. at 693. Cardinal Towing

addressed federal preemption generally, but it was not a federal labor law case.

Before Cardinal Towing, a federal district court in California applied a slightly

different totality of the circumstances test and held in an unreported opinion that the

market participant exception to preemption applied to a contract where a public agency

received substantial revenues through a lease arrangement. A state agency had acquired a

large parcel of land and fashioned a ground lease arrangement where the hotel developer

would provide a continuing stream of income for the city for the purpose of financing

construction of a facility. The lease was structured so that the hotel would pay a

redevelopment agency a fixed minimum rent as well as a percentage rent in an amount

calculated on the basis of the hotel’s gross proceeds. Marriott submitted a bid to develop

the land and build a hotel. Local union leaders objected to Marriott’s bid because

Marriott had long opposed unionization on all of its directly-owned and operated hotel

properties. The redevelopment agency made it known that unless Marriott agreed with

the unions to operate as a union employer or at least not oppose unionization, it was

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unlikely to be selected as the developer for the project. In exchange for union agreement

to withdraw opposition to Marriott’s bid, Marriott agreed to recognize the union as

representative of Marriott’s employees pursuant to a card check agreement, agreed to

remain neutral during any union organizing job and agreed to give first consideration to

persons referred by the union to fill job vacancies at the hotel. After the hotel was built,

Marriott refused to abide by its agreement with the union and claimed that the union

agreement was the product of illegal pressure by the redevelopment agency and was

therefore void. HERE, Local 2 v. Marriott Corp., 1993 WL 341286 (N.D. Cal. 1993).

The district court found that the redevelopment agency was furthering its

proprietary interest in its dealings with Marriott and that its actions were not preempted.

While the redevelopment agency did not own the hotel, it owned the land on which the

hotel was built. Because of its status as a landowner, the ground lease arrangement

between the redevelopment agency and Marriott provided a constant stream of income

that could support the entire development around the hotel, including public areas and

cultural amenities which would not generate income. The redevelopment agency had

received approximately five million dollars between the time the hotel opened and the

time the litigation began a few years later. Part of that rent was based on a percentage of

the hotel’s gross receipts. The court found that the redevelopment agency was acting out

of economic necessity when it asked for assurances from Marriott that its involvement in

the hotel project would not lead to labor strife, prolonged delays or an economic boycott

of the hotel. Thus, economic necessity rather than policy-making was found to be the

most reasonable explanation for the agency’s actions. Because the redevelopment agency

had proprietary motivations, it was functioning as a proprietor when it took Marriott’s

labor relations policies into account before awarding Marriott the contract to build and

develop the hotel. Accordingly, the city was acting as a market participant and not as a

regulator, and its conduct was not preempted by federal labor law. Id. at *7-9. The court

noted that although there was evidence that certain commissioners on the redevelopment

agency were seeking to further their own pro-union political beliefs or an unstated city

policy of having unionized hotels, those interests were secondary to the redevelopment

agency’s proprietary motivations. Id. at *9.

After Cardinal Towing, a different judge on the same court took a different view

on the importance of revenue accumulation in Aeroground, Inc. v. City and County of

San Francisco, 170 F.Supp. 2d 950 (N.D. Cal. 2001). In Aeroground, an airport

commission adopted a rule called a “labor peace/card check” rule in an effort to minimize

the perceived threat of labor unrest arising out of union-organizing drives at the airport.

The rule obligated unions not to undertake any kind of economic action such as a strike,

picketing or boycott in regards to an organizing campaign, and also required employers

operating at the airport to enter into a labor peace/card check agreement with any union

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that had registered with the airport director and requested such an agreement. Under the

rule, the card check agreement provided that employee preference concerning union

representation was determined by card check. The card check rule compelled employers

desiring to continue to do business at the airport to forgo their right to have the union

status of their employees determined by an NLRB election. The rule also required that

parties submit any disputes to binding arbitration over any labor agreement or issues

arising out of the card check process, obligated employers to include in any subcontract a

provision that subcontractors would abide by the same rule. A refusal by an employer to

enter into such an agreement with the union gave the airport director the authority to

terminate an employer’s permit to do business at the airport. For unexplained reasons,

the rule explicitly exempted any employer that was covered by the RLA. Id. at 952-953.

The employer argued that the airport’s card check rule was preempted under

Garmon preemption. The city claimed that its actions were not preempted under the

market participant doctrine established in Boston Harbor. Utilizing the two part test

established in Cardinal Towing, the court found that the card check rule applied to all

non-exempt employers at the airport and required them to enter into a labor agreement

with any requesting union or be denied the opportunity to do business at the airport.

Under these circumstances, the card check rule was not an effort by the airport to contract

directly with an employer for goods or services. The court found that the card check rule

“operates essentially as a licensing scheme that controls the conditions under which

Aeroground and other employers can contract with private third parties – in

Aeroground’s case, the airlines.” The court found that the card check rule was

remarkably similar to the city’s action in denying the renewal of taxi cab permits in

Golden State I. Aeroground, 170 F.Supp. 2d at 957. The court noted that the Supreme

Court had recognized in Boston Harbor that a different case would have been presented

in Golden State I if the city of Los Angeles had purchased taxi services directly from the

employer in order to transport city employees. Similarly, the court noted in

Aeroground’s case that if the city would have purchased Aeroground’s cargo handling

services directly, it would have been acting as a market participant. But because the city

attempted to influence the behavior of employers that did business at the airport,

ostensibly to minimize labor unrest, the card check rule could not be characterized as an

effort by the airport to procure goods or services for some discrete city project.

Aeroground, 170 F.Supp. 2d at 958.

The court also found that the card check rule was not narrow in scope because it

applied to all non-exempt employers at the airport and had the effect of controlling the

conduct of those employers in their dealings with third parties. The court found these

kinds of efforts to be a classic example of regulation rather than a municipality engaging

as a market participant. Under these circumstances, the court held that the market

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participant doctrine did not apply and the card check rule was preempted by the NLRA.

Id. at 958-959.

The Boston Harbor market participant exception to federal preemption was again

analyzed in Building & Construction Trades Department v. Allbaugh, 295 F.3d 28 (D.C.

Cir. 2002). In Allbaugh, the D.C. Circuit declined to find preemption applicable to a

specific Executive Order that required federal agencies and private entities to maintain

neutrality regarding project labor agreements in federally funded construction projects.

Even though the Executive Order applied to all federally funded contracts, it only applied

to those contracts and did not speak to the behavior of the contractors who were working

on other, non-government projects. The court found that because the federal government

was acting just as a private contractor was allowed to act (in this case not requiring a

bidder to enter into a PLA nor prohibiting it from entering into a PLA), it was acting in a

lawful manner and, therefore, the scope of the Executive Order was not regulatory. 295

F.3d at 35–37. In effect, a condition that the government imposes in awarding a contract

or in funding a contract is regulatory only when it “addresses employer conduct unrelated

to the employer’s performance of contractual obligations to the state.” Id. at 36 (internal

citations omitted).

Next, there is the case cited by SEIU Local 26 as support for the proposed labor

peace agreement. In HERE v. Sage Hospitality Resources, LLC, 390 F.3d 206 (3d Cir.

2004), cert. denied, 544 U.S. 1010 (2005), the city of Pittsburgh conditioned the receipt

of approximately $3.56 million in tax increment financing to a hotel developer on the

developer being signatory to a labor neutrality agreement very similar to the labor peace

agreement proposed by SEIU Local 26. Id. at 208-209. Under these different factual

circumstances, the Third Circuit derived a slightly different two-part test under Boston

Harbor for the market participant exception to preemption: “First, does the challenged

funding condition serve to advance or preserve the state’s proprietary interest in a project

or transaction, as an investor, owner, or financier? Second, is the scope of the funding

conditions specifically tailored to the proprietary interest?” Id. at 216. Under the facts of

this case, the court examined whether the city’s economic interest in the success of the

development project for which tax increment financing was received was proprietary.

The court first noted that the city’s interest in enhanced revenue, which applies any time a

city seeks to increase its tax base, was not a proprietary interest but was simply a

traditional government interest. However, 40% of the tax revenues from the tax

increment financing flowed directly to the city and 60% of the tax revenues flowed to the

redevelopment agency to support debt service. Because the city was a recipient of a

portion of the increased tax revenues, it had the same interest as any private entity that

financed a development by issuing bonds. Accordingly, conditioning receipt of tax

increment financing on the developer signing a neutrality agreement which was limited to

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those hotels and hospitality projects that actually received the tax increment funds was a

proprietary and not a regulatory interest. If the city had required participating contractors

to sign labor agreements extending to projects they were involved in that did not receive

government funding, then the city would have been engaged in regulatory actions which

would have been preempted. Id. at 217-218.

In contrast, the Seventh Circuit Court of Appeals found a county ordinance

requiring certain county contractors to negotiate labor peace agreements with unions to

be preempted by the NLRA. In Metropolitan Milwaukee Assn. of Commerce v.

Milwaukee County, 431 F.3d 277 (7th

Cir. 2005), Milwaukee County attempted to require

labor peace agreements from companies that it contracted with to provide transportation

services for elderly and disabled residents with any union that wanted to organize

employees who work on any county contracts. The county ordinance forbade unions

from engaging in any economic actions so long as an employer complied with the labor

peace agreement, but there was no sanction for a union which violated this provision. In

contrast, an employer who failed to correct any violation of the labor peace agreement

could be terminated as a county contractor. Id. at 278. The court noted that the county

was not permitted to regulate activities that were either expressly permitted or forbidden

by the NLRA or were reserved by the NLRA for market freedom. In contrast, if the state

were intervening in the labor relations only of companies from which it purchased

services in order to reduce the cost or increase the quality of those services there would

be no preemption. The court went on to note that the spending power of a state or county

may not be used as a pretext to regulate the labor relations of the entities with which the

state contracts. Under the specific facts of this case, a contractor that was providing

transportation services for elderly and disabled residents on behalf of the county would

likely also be providing transportation services for other private hospitals and nursing

homes. Although the obligation to negotiate a labor peace agreement only arose if a

union sought to represent employees who do work on an employer’s contracts with the

county, once a labor agreement was in place, it would likely apply to the employer’s

other employees who might never do work on a county contract. The court also noted

that other county contractors were not subject to labor peace agreements. While the

county has the same right as other purchasers when it is buying services, in this instance,

the labor peace agreements required by the county were not limited solely to the

provision of services to the county and were not tailored to actually prevent a work

stoppage. The court interpreted Boston Harbor to stand for the proposition that while a

state agency may require a pre-hire agreement when it is directly contracting with an

entity, such pre-hire agreements are authorized by the NLRA and lawful. In contrast,

labor peace agreements are not specifically recognized by the NLRA nor are they a “tried

and true” remedy to limit strikes or other work stoppages. The court found that the

county was requiring a labor peace agreement as a pretext to regulate the labor relations

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of companies that happen to do some county work, and therefore, the county’s

requirement for labor peace agreements was preempted. Id. at 282.

The most recent case from the United States Supreme Court to consider the market

participant exception under the NLRA declined to cite any of the lower-court decisions

that have arisen since Boston Harbor. In Chamber of Commerce of the United States of

America v. Brown, 554 U.S. 60 (2008), a California statute prohibited any grant recipient

or private employer who received more than $10,000 in state program funds in any year

from using those funds “to assist, promote or deter union organizing.” Organizations

whose members did business with California sought to enjoin enforcement of this law.

The Court noted that the NLRA regulates non-coercive speech by both unions and

employers concerning union organizing. California’s statute imposed its own policy

judgments that partisan employer speech interfered with an employee’s choice about

union representation. The California statute was deemed preempted under the Machinists

preemption rationale because the California statute regulated within a zone that was

protected and reserved for market freedom concerning union organizing, collective

bargaining and labor disputes. The Court observed that if a state acts as a market

participant with no interest in setting policy as opposed to a regulator, it will not offend

preemption principles under the NLRA. In contrast, the challenged regulation’s

“legislative purpose is not the efficient procurement of goods and services, but the

furtherance of labor policy.” Id. at 70. California had no authority to upset the balance

Congress struck between labor and management under the NLRA. Id. at 74.

Finally, the Supreme Court recently addressed market participant concept in a

non-labor law preemption context. In American Trucking Associations, Inc. v. City of

Los Angeles, 133 S.Ct. 2096 (2013), the Port of Los Angeles, a division of the City of

Los Angeles, required that any trucking company seeking to operate on the Port’s

property had to enter into a concession agreement with the Port that required the trucking

company to affix a placard on each truck with a phone number for reporting

environmental or safety concerns, and had to submit a plan listing off-street parking

locations for trucks when not in service. Any terminal operator that hired a trucking

company to do work on Port property which was not registered under a concession

agreement with the Port was subject to criminal misdemeanor violations. Trucking

companies that failed to abide by the concession agreement were subjected to financial

penalties or revocation of the right to provide services at the Port. A trade association

representing companies that operated at the Port sued, claiming that the Federal Aviation

Administration Authorization Act (FAAAA) prohibited such a concession agreement by

the Port. The FAAAA has a specific statutory section which preempts any state or local

government provision that has the force and effect of law related to price, route or service

of any motor carrier. The Port attempted to defend its concession agreement as not an

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exercise of regulatory authority but instead as a contract-based participation in a market.

The Supreme Court rejected the Port’s defense and found that the Port exercised classic

regulatory authority complete with the use of criminal penalties in imposing the placard

and parking requirements in dispute. Under the FAAAA, the court found the Port’s

concession agreement as having the force and effect of law and held that the FAAAA

preempted the Port’s concession agreement. Id. at 2103-2105. While this was not a labor

law case and found preemption under a separate federal law, it still provides insight into

the Supreme Court’s view of when a state government entity exercises classic regulatory

authority as opposed to when a state government entity is acting as a market participant.

Airline subsidiaries performing aviation-related activities

A. Does the RLA apply?

Whether an airline subsidiary company that performs aviation-related activities is

covered by the Railway Labor Act (RLA), or the National Labor Relations Act (NLRA)

depends on whether the subsidiary meets the test for RLA coverage. The RLA applies to

air carriers, and those companies directly or indirectly owned or controlled by, or under

common control with, an air carrier that performs a service in connection with

transportation. 45 U.S.C. § 151, First, § 181.

The National Mediation Board (NMB) ordinarily determines whether an entity is

covered by the RLA. Pacific S.W. Airlines, 4 NMB 124 (1967); Pan Am. World

Airways, 3 NMB 41 (1957). The NLRA specifically states that the jurisdiction of the

National Labor Relations Board (NLRB) does not extend to a carrier subject to the RLA.

29 U.S.C. § 152(2), (3). When there is a dispute about whether an entity is covered by

the RLA or the NLRA, the NLRB usually refers the jurisdictional question to the NMB

for an advisory opinion about RLA coverage. Service Master Aviation Servs., 325 NLRB

786 (1998). Typically, if the RLA jurisdictional issue is raised during an NLRB

proceeding, the NLRB collects the facts and forwards the record to the NMB for its

assessment. NLRB Field Manual ¶ 17,020 (1990); Caribbean Airline Servs., 307 NLRB

361 (1992); Intertec Aviation, 300 NLRB 555 (1990). While the NLRB usually deems it

prudent to seek the NMB’s view on jurisdictional coverage, the NLRB does not view

NMB consultation as required. Spartan Aviation Indus., 337 NLRB 708 (2002). The

NLRB’s view has been upheld by at least two appellate courts. See United Parcel Serv.

v. NLRB, 92 F.3d 1221 (D.C. Cir. 1996); Dobbs Houses, Inc. v. NLRB, 443 F.2d 1066

(6th Cir. 1971).

For entities that are not air carriers, the NMB applies a two-part test to determine

if a subsidiary or affiliate of an RLA air carrier is covered by the RLA: (1) whether there

is common ownership or control between the entity in question and an RLA carrier, and

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(2) whether the work performed by the entity’s employees is traditionally performed by

the employees of an airline. Both components must be met for the NMB to conclude that

the entity is covered by the RLA. The NMB presumes “control” is established by

ownership. Thus, all airline subsidiaries presumptively satisfy the first part of the test.

But a truly separate subsidiary which does not do the majority of its work for a carrier

and does not hire a majority of its employees from the carrier might possibly have a

different result. See North Carolina Ports Auth., 9 NMB 398 (1982) (when state owner

separated railroad facilities from docks department, docks ceased to be subject to RLA).

In the absence of actual ownership, the NMB focuses on the carrier’s role in the

entity’s daily operation and what effect the carrier and its policies have on the manner in

which the entity does business. TNT Skypak, 20 NMB 153 (1993); Air BP, Div. of BP

Oil, 19 NMB (1991). Significant factors include: (1) whether an entity’s employees are

supervised by air carrier employees, (2) whether the air carrier managers make effective

recommendations in hiring, firing, and disciplining the entity’s employees, (3) ownership

of the entity’s equipment, (4) training of the entity’s employees, (5) holding out the

entity’s employees as employees of the carrier, (6) submission of periodic reports to the

carrier, (7) whether the carrier shares office space with or leases office space to the entity,

and (8) participation by carrier supervisors or managers in the entity’s management

meetings. See Aeroguard, Inc., 28 NMB 510 (2001); Sky Valet, 23 NMB 155 (1996);

Service Master Aviation Servs., 24 NMB 181 (1997); Trux Transp., 28 NMB 518 (2001);

PHL, 28 NMB 155 (2000). The test is multi-factored, and the NMB does not seem to

have clearly stated that any one factor is more important than others. For example, if an

entity can hire and fire its own employees, but a carrier effectively recommends

discipline or termination of the entity’s employees, it has been held covered by the RLA.

Evergreen Aviation Ground Logistics Enters., 25 NMB 460 (1998). If a carrier can

request that a contractor entity reassign employees and otherwise plays a significant role

in staffing of the entity, the entity has also been found to be covered by the RLA.

Swissport USA, 35 NMB 190 (2008).

As for the second part of the test – work traditionally performed by a carrier – the

following activities have been found to be such work covered by the RLA: (1) air taxi

services and charter operations which are not sporadic, (2) maintenance, servicing, and

refueling of aircraft, (3) screening and security, (4) in-flight food catering, (5) sky cap

services, (6) ground services (including directing, starting, parking and towing aircraft,

transporting cargo or baggage, and cleaning aircraft), (7) piloting and flight engineering,

(8) passenger services (ticket counter, gate, and cargo agents), and (9) miscellaneous

functions such as servicing and maintaining deicing equipment, escorting disabled

passengers to and from planes, loading irregular baggage, sorting unclaimed luggage,

operating parking lot booths at airports, transporting flight crews, and cleaning airline

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terminals. See Tampa Airways, 14 NMB 331 (1987); York Aero, 17 NMB 498 (1990);

Combined Contract Serv., 18 NMB 163 (1991); Ground Handling, Inc., 13 NMB 116

(1986); Dobbs Int’l Servs., 27 NMB 537 (2000); Command Sec. Corp. 27 NMB 581

(2000); International Air Serv., 18 NMB 492 (1991); Energy Support Servs., 14 NMB

326 (1987); PHL, 28 NMB 155 (2000); Worldwide Flight Servs., 31 NMB 386 (2004);

Global Aviation Serv., 36 NMB 2 (2008); Globe Aviation Serv., 28 NMB 41 (2000); Sky

Valet, 23 NMB 155 (1996); Allied Maintenance Corp., 13 NMB 255 (1986).

For those entities that have LASAs with the MAC and are subsidiaries of a carrier,

such as DAL Global Services, such entities should be covered by the RLA. DAL Global

Services meets the two-part test for coverage as it is owned by a carrier – Delta – and it

performs work traditionally performed by a carrier, such as cleaning and refueling of

aircraft. Thus, the RLA rather than the NLRA should apply.

B. Preemption under the RLA

1. Is the Market participation exception to preemption available under

the RLA?

Courts have often looked to case law under the NLRA for analogous guidance to

issues under the RLA. The Supreme Court has stated that “[F]ederal common law

developed under the NLRA may be helpful in deciding cases under the RLA.” Trans

World Airlines v. IFFA, 489 U.S. 426, 432 (1989). Further, the Supreme Court has also

found that the case law under the NLRA represents the most “relevant corpus of national

labor policy” that courts may look to in deciding RLA matters. Brotherhood of RR

Trainmen v Jacksonville Terminal Co, 394 U.S. 369, 383 (1969). But the Supreme Court

also cautioned that the NLRA “cannot be imported wholesale into the railway labor

arena. Even rough analogies must be drawn circumspectly, with due regard for the many

differences between the statutory schemes.” Id.

Federal courts appear to have accepted the preemption principles enunciated in the

Garmon and Machinists lines of preemption under the NLRA. For example, in

Jacksonville Terminal, the Supreme Court held, consistent with the principles set forth in

Garmon, that collective bargaining by rail and air carriers is to be governed exclusively

by the RLA. Therefore, states may not regulate self-help measures, including strikes or

picketing, that parties may take after failed efforts to negotiate a collective bargaining

agreement. Jacksonville Terminal, 359 U.S. at 380.

Similarly, in Bensel v. Allied Pilots Assn., 387 F.3d 298 (3d Cir. 2004), the Third

Circuit held that Garmon’s preemption had been extended to the RLA in Jacksonville

Terminal. Bensel, 387 F.3d at 321-323. The Second Circuit has further held that state

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law claims challenging a restructuring agreement between a carrier and its flight

attendant union were preempted by the RLA. Because the plaintiffs’ claims against the

union for breach of the union constitution and against the air carrier for causing the union

to breach its duties to members under the union constitution all dealt with union and

carrier conduct in the negotiation and ratification of a collective bargaining agreement,

the conduct must be judged under the RLA. Imposition of any additional liability under

state law for conduct during the bargaining of a labor agreement would upset the balance

of power established by the RLA. The court explained that the mere potential for any

conflict which might be caused when a state attempts to regulate conduct that is central to

the goals of the RLA is too great a risk and thus is preempted. Lindsay v. Association of

Prof’l Flight Attendants, 581 F.3d 47, 59-60 (2d Cir. 2009).

It is unclear whether a Boston Harbor type of market participant exception to RLA

preemption exists since there do not appear to be federal cases which have directly

analyzed this issue. However, at least one appellate court has noted in dicta that the RLA

would not preempt actions taken by a city as a proprietor or a market participant. In Air

Transport Association of America v. City and County of San Francisco (ATA), 266 F.3d

1064 (9th

Cir. 2001), the court held that a city ordinance which prohibited the city from

contracting with the companies that discriminated between employees with spouses and

employees with domestic partners for purposes of employee benefits was not preempted

by the RLA. The court found that the RLA did not preempt state or local efforts to

prevent discrimination or set minimal substantive requirements on contract terms. Id. at

1076-1078. In dicta, the court noted that the RLA would not preempt actions taken by

the city as a proprietor or market participant, but the court failed to cite any RLA

authority for that proposition. Instead, it cited to another Ninth Circuit decision dealing

with preemption under the NLRA and the market participant exception. Id. at 1076, n.4.

While it does not appear that a specific federal court that has held that the market

participant exception to preemption exists under the RLA, it is logical to infer that a court

would find such an exception exists given the comments of the Ninth Circuit in the ATA

case, as well as the comments from the Supreme Court and other courts about NLRA

preemption applying to the RLA. The fact that the Supreme Court and other federal

courts have often looked to the NLRA for guidance about how to interpret the RLA

further supports the conclusion that a court would find that a market participant exception

to RLA preemption exists.

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2. Would a labor peace agreement be preempted under the RLA?

Whether a court would find that a labor peace agreement adopted by the MAC was

an exception to preemption under federal labor law with respect to LASAs is not nearly

as clear as SEIU would have the MAC believe. This area of the law continues to evolve.

There is essentially no guidance from the Eighth Circuit Court of Appeals about this

issue, and the recent guidance from the Supreme Court is not particularly helpful. What

is clear is that a court will examine all of the circumstances surrounding any requirement

by the MAC that a labor peace agreement be a condition of receipt of a LASA. The

imposition of a privilege fee based upon gross revenues is likely to be just one of the

factors that a court will evaluate in determining whether the MAC is acting in a

proprietary capacity as a market participant or whether the MAC’s requirement of a labor

peace agreement is regulatory and therefore likely preempted by federal labor law.

While the SEIU focused on the MAC’s financial interest in the LASAs and the

imposition of the privilege fee, what the SEIU ignores in its analysis is the fact that in

virtually every case where the Boston Harbor exception to preemption has been found

applicable, the government entity has directly contracted in some way with another

company in the marketplace. Boston Harbor itself dealt with a state agency requiring

PLA’s on a specific project for a state agency – a cleanup of the Boston Harbor. In Sage

Hospitality Resources, a city’s redevelopment authority provided tax increment financing

to a hotel developer. Part of the agreement was that the redevelopment authority received

a portion of the revenue stream from the hotel to pay down the debt. A separate portion

of the revenue stream from the hotel development was payable directly to the city so that

the city had a financial interest akin to a private party that was more than a municipality’s

general governmental interest in maximizing government revenue.

Boston Harbor dictates that if a government entity is contracting directly with a

company for goods or services, it is acting as a market participant. In Golden State I, the

city of Los Angeles conditioned the renewal of a taxi cab franchise upon settlement of a

labor dispute with cab drivers. The Supreme Court found that this was a clear example of

the city acting in a regulatory manner and attempting to regulate the conduct of a class of

employers rather than the city contracting with a specific company as a market

participant. The current situation falls somewhere in the middle of this spectrum. Some

factors that would seem to favor preemption include that the MAC’s financial interest in

the LASAs is relative small. Companies like DAL Global Services pay $275 per month

as a basic payment for an annual license agreement. This is a relative minor fee. Further,

there is little risk, if any at all, of the MAC not receiving its monthly license fee even if

there is labor unrest at the airport. SEIU argues that a 5% of gross sales privilege fee that

is paid by DAL Global Services gives the MAC a much more significant financial

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interest. As of January 1, 2013, DAL Global Services does not pay a privilege fee on

services provided to Delta. This exception was granted based on DAL’s status as a

wholly-owned subsidiary of Delta. MAC estimates that DAL Global Services will

provide approximately $1,700 in privilege fees for all of 2013 based on services provided

to other airlines. While a 5% privilege fee does generate additional revenue, the MAC’s

financial interest even with a privilege fee is still relatively small. Further, some of the

LASAs contain an exemption for payment of the privilege fee. For example, to the

extent that DAL Global Services remains a wholly owned subsidiary of Delta Airlines, it

is exempted from any requirement to pay a privilege fee for any services provided to

Delta Airlines or Delta Connection related services. In that circumstance, the MAC has

even less of a financial interest in the LASAs. Courts are likely also to take into account

that no other MAC contracts have labor peace agreement requirements and many of the

issues raised by SEIU with respect to these contractors do not affect any proprietary

interest of the MAC to any significant degree. Another factor in favor of preemption is

that private entities in the field facing similar concerns (the airlines) have not acted to

require labor peace agreements and the courts have continuously looked at how private

entities in the marketplace have acted to compare whether a government’s action is closer

to a regulatory scheme or whether a government’s action is that of a market participant.

Factors that seem to support a Boston Harbor market participant exception to

federal labor law preemption include the fact that the MAC does charge a privilege fee

for at least some of the LASAs, strikes or other economic weapons available to labor that

could be used against contractors working at MSP could have a negative impact on

MSP’s customers, and admittedly some of the concerns raised by the SEIU about MSP

contractors do relate to customer service – although the concerns raised by SEIU about

the contractors seem to relate more to individual employee concerns rather than customer

service.

Ultimately, while there are arguments both in favor and against preemption, it

would appear that the better argument is that a labor peace agreement of the type

proposed by the SEIU, if imposed by the MAC, is likely to be preempted. The MAC’s

financial interest in the LASAs and CSLAs is relatively small and the MAC is not

directly contracting for the procurement of goods or services. Instead, it could be argued

persuasively that if the MAC included a labor peace requirement as part of a LASA or

CSLA for all contractors that perform aviation-related activities at MSP, the MAC is

acting in more of a regulatory fashion rather than a market participant. By mandating a

labor peace agreement in order to do business at MSP, the MAC would be attempting to

impose its own view of labor relations on contractors performing work at MSP who are

not directly providing goods or services directly to the MAC.

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3. Would a worker retention agreement be preempted under the RLA?

For similar reasons, we believe that a worker retention agreement would also be

preempted under the RLA. Under the RLA, the NMB has exclusive jurisdiction over

representation disputes. 45 U.S.C. § 152, Ninth; Switchmen’s Union v. NMB, 320 U.S.

297, 303 (1943). If a predecessor licensee had a union, the worker retention agreement

would require the successor to hire all of the predecessor’s unionized employees, giving

rise to a claim by an existing union that the successor must also be unionized. Courts

have typically refused to decide claims of successorship, instead ruling that the

successorship question is a representation dispute for the NMB to decide. See RLEA v.

Wheeling & Lake Erie Ry., 741 F. Supp. 595 (E.D. Va.), aff’d, 914 F.2d 53 (4th

Cir.

1990); UTU v. Gateway Western Railway, 78 F.3d 1208, 1216 (7th

Cir. 1996); North

Carolina Ports Authority, 9 NMB 398 (1982).

Thus, it would appear as though the worker retention agreement, which would

require a successor licensee to hire all of a predecessor’s unionized employees, infringes

on an area left to the exclusive jurisdiction of the NMB, and thus is likely preempted.

Under RLA preemption analysis, a Boston Harbor-type of exception to preemption under

the RLA likely is not applicable for the same reasons described above concerning the

labor peace provision, i.e., the MAC would appear to be imposing its own labor relations

policies on those contractors performing work at MSP who do not provide goods or

services directly to the MAC.

IV. Other Companies performing aviation-related activities

With respect to companies that are not affiliated with airlines performing aviation-

related activities for airlines which a LASA is required, so long as those companies are

not controlled by an air carrier, as described above, these companies will be covered by

the NLRA rather than the RLA. Regardless of whether the other contractors that perform

aviation-related activities are covered by the RLA or the NLRA, the preemption analysis

is the same.

1. The labor peace agreement is likely preempted

The factors in favor of preemption with regard to the labor peace agreement again

include that the MAC’s financial interest in the LASAs is relatively small. Contractors

performing “ground handling” services, as that term is defined in the airline lease

agreements1, pay a privilege fee for those services. A privilege fee is not required for

1 “Ground handling” means providing airside services to an aircraft, including, but not limited to, wing walkers,

marshalling, lavatory services, aircraft cleaning and maintenance, luggage transfer and providing catering supplies,

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other services. As a result, some contractors that perform aviation-related activities, like

Prime Flight Aviation Services and G2 Secure Staff, pay a privilege fee on a portion of

the services they provide at MSP. Most operators, however, either perform ground

handling services (Menzies, for example) and pay a privilege fee or perform non-ground

handling services (Swissport, for example, which provides into-plane fueling), and do not

pay a privilege fee. Regardless, the MAC still has a relatively minor financial interest in

LASAs. The analysis of whether these types of contractors may be required to have a

labor peace agreement is identical to the RLA-covered contractors. The imposition of a

labor peace agreement as part of a LASA by the MAC falls somewhere between clearly

preempted regulatory activity and government acting as a participant in the market which

is an exception to federal labor law preemption. Again, because the MAC is not directly

contracting for the procurement of goods or services and is arguably imposing its view of

labor relations on contractors who do business with airlines and other companies at MSP,

it is likely that the imposition of a labor peace agreement would be preempted.

2. The worker retention agreement is likely preempted under the NLRA

With respect to the worker retention agreement for those companies covered by

the NLRA, successorship law is more clearly defined under the NLRA. If a predecessor

licensee’s employees who perform services at MSP are represented by a union, under the

worker retention language, the successor licensee has no choice but to hire virtually all of

the predecessor’s employees. Under the NLRA, when a successor employer hires a

majority of its workforce from a unionized predecessor, the successor will, at a minimum,

have a duty to recognize and bargain with the union representing the predecessor’s

employees. NLRB v. Burns Int’l Sec. Servs., 406 U.S. 272 (1972); Fall River Dyeing &

Finishing Corp. v. NLRB, 482 U.S. 27 (1987).

Normally, a successor employer that hires employees from a unionized

predecessor will have the ability to set its own initial wages, benefits, and other terms and

conditions of employment when it hires the employees. Once the successor has hired

substantially all of its employees and determines whether a majority of its employees

came from the unionized predecessor, it is at that point in time when the successor

determines whether it has a duty under the NLRA to recognize and bargain with the

union that represented the predecessor’s employees. But there is an exception to this

principle. If it is “perfectly clear” from the outset that the successor plans to retain all of

the predecessor’s employees, then the successor employer may not necessarily set the

initial terms and conditions of employment, and in fact, may have a duty to maintain the

status quo the employees had with the union and bargain with the union before making

but not including fueling or any services provided directly to passengers in the Terminal Complex other than

baggage handling.

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any changes. Spruce Up Corp., 209 NLRB 194 (1974); Canteen Corp., 317 NLRB 1052

(1991), enf’d, 103 F.3d 1355 (7th

Cir. 1997).

Under the worker retention agreement, a successor will be obligated to hire all of

the predecessor’s employees. Further, the predecessor’s employees will be told at least

30 days prior to the successor taking over the contract that they will be rehired by the

successor. In this situation, not only is the successor licensee required to forfeit its ability

to hire the employees it wants, but it very likely will be “perfectly clear” that it must hire

all of the predecessor’s employees working at MSP at least 30 days before the successor

takes over the contract to do business at MSP. If the predecessor’s employees are

unionized, the successor is, in effect, not only required to be union by virtue of the

successorship doctrine under the NLRA, the successor is likely to be required to abide by

the same terms as found in the predecessor’s union contract and forfeit its right to set the

initial wage and benefit levels, and the initial work rules governing the employees. The

imposition of a worker retention agreement in this situation would likely be preempted by

the NLRA because the MAC is imposing its labor policies on licensees, which is akin to

regulatory conduct that is preempted. Again, because these companies are not

contracting with the MAC to provide goods or services directly to the MAC, it seems

unlikely that the Boston Harbor exception to preemption would apply.

V. Imposing labor peace or worker retention agreements on Companies providing

landside or commercial services to airlines would likely be preempted

The next category of contractors are those companies that provide landside or

commercial services to airlines, which may include services that could be perceived by

the public to be MAC-provided services (e.g., cart driving, wheelchair pushing, etc.).

While some of these services may be perceived by the public to be MAC-provided

services, these are services that are provided to the airlines that serve MSP. It would be

very difficult to argue that the MAC has any kind of a proprietary interest as a market

participant in mandating that these type of contractors must have a labor peace agreement

or a worker retention agreement in order to do business with the airlines at MSP. The

MAC is not contracting directly with these companies to provide any services to the

MAC, and any imposition of a labor peace or worker retention agreement requirement for

these types of contractors to do business at MSP would be akin to regulatory action by

the MAC which would be preempted by federal labor law.

But this conclusion raises another issue. The SEIU’s argument essentially boils

down to the concept that if the MAC charges a privilege fee for other companies to do

business at MSP, then the MAC has a proprietary interest which should be an exception

to federal labor law preemption. It seems like a specious argument because if all that was

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necessary to fit within a Boston Harbor market participant exception to preemption was

for a government entity to charge some kind of a fee for others to do business on its

property - even though the government was not directly contracting for the procurement

of goods or services - then a government would be able to dictate labor policy for all

entities that did business on any government owned property regardless of whether an

entity was contracting directly with the government. That type of activity certainly seems

to be regulatory in nature, even under the most recent pronouncements by the Supreme

Court. As the court stated in ATA v. City of Los Angeles, when the government employs

a coercive mechanism not available to a private party it is acting in a regulatory capacity

regardless of whether it does so to make a profit. 133 S.Ct. at 2103-2104. Even if the

MAC were to require some kind of contract or permit for contractors to perform landside

services to airlines and the MAC charged a small fee, it would still appear as though the

MAC was attempting to impose its own labor policies on these contractors, which again

is likely preempted. Thus, it does not appear as though requiring an entity to hold a

license or permit and charging a fee in order to do business at MSP is enough to allow the

MAC to impose labor peace agreements or other labor policies as a condition of doing

business at MSP.

VI. The MAC may impose the SEIU’s proposed agreements on Companies

providing landside services directly to the MAC under a MAC contract

The last category of contractors are those companies that provide landside services

directly to the MAC, such as porter services, which are performed under a MAC contract.

In this situation, it would appear that when the MAC contracts with an entity directly to

provide services to the MAC itself, the MAC has a much stronger argument that it is

acting as a market participant. If the MAC wanted to impose a labor peace agreement or

a worker retention agreement on entities that it contracts directly with for provision of

goods or services, the MAC is acting like a private party in the marketplace and the

imposition of a labor peace agreement or a worker retention provision in this

circumstance is likely not preempted. A private party in the marketplace may choose to

do business only with a union contractor, or a contractor that has signed a neutrality

agreement or some other kind of labor peace agreement. Therefore, if the MAC contracts

directly with an entity to provide goods or services and the MAC chooses to condition

selection of a contractor upon the contractor’s willingness to abide by certain labor

conditions, the MAC is acting as a market participant and its conduct likely falls within

the Boston Harbor exception to labor law preemption.

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VII. The MAC may face liability under Section 1983 if it requires labor peace

agreements in its contracts which are later found to be preempted

One final note of caution is appropriate. Under federal law, Section 1983 provides

a federal remedy for “the deprivation of any rights, privileges, or immunities secured by

the constitution and laws.” 42 U.S.C. §1983. The Supreme Court has repeatedly held

that the coverage of this statute must be broadly construed and that the remedy

encompasses violations of federal statutory as well as constitutional rights. Golden State

Transit Corp. v. City of Los Angeles (Golden State II), 493 U.S. 103, 105 (1989).

A determination that Section 1983 is available to remedy a statutory violation

requires two things. First, the plaintiff must assert the violation of a federal right.

Second, even if the plaintiff has asserted a federal right, the defendant may show that

Congress specifically foreclosed a remedy under Section 1983. Id.

In Golden State II, a taxi cab company sued the city under Section 1983 for

damages caused when the city refused to renew its taxi cab license unless the taxi cab

company agreed to settle a labor dispute between it and its union. The Supreme Court

held that under the NLRA, the taxi cab company had the right to sue the city under

Section 1983 for interference with the company’s rights under the NLRA. Id. at 111-113.

Thus, if the MAC imposed a labor peace agreement or a worker retention agreement

upon contractors as a condition of doing business at MSP and the MAC’s actions were

later found to be preempted, there is the possibility that affected contractors could sue the

MAC for damages under Section 1983.

MJM