116 S.Ct. 1529, 134 L.Ed.2d 758 (1996).
B. Plaintiff BCTD is Entitled to a Preliminary Injunction
10. "A court considering a plaintiffs request for a
preliminary injunction must examine whether: (1) there is a
substantial likelihood the plaintiff will succeed on the merits;
(2) plaintiff will be irreparably injured if an injunction is
not granted; (3) an injunction will substantially injure the
other party; and (4) the public interest will be furthered by
the injunction." Serono Laboratories, Inc. v. Shalala,
158 F.3d 1313, 1317-18 (D.C.Cir. 1998); Washington Metro. Area
Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 843
(D.C.Cir. 1977). No one factor is determinative. Rather,
"[t]hese factors interrelate on a sliding scale and must be
balanced against each other." Serono Laboratories, 158 F.3d at
1318. "A stay may be granted with either a high probability of
success and some injury, or vice versa." Cuomo v. United States
Nuclear Regulatory Comm'n, 772 F.2d 972, 974 (D.C.Cir. 1985).
11. The usual role of a preliminary injunction is to preserve
the status quo pending the outcome of litigation. The term
"status quo" refers to "the last uncontested status which
preceded the pending controversy." District 50, United Mine
Workers v. United Mine Workers, 412 F.2d 165, 168 (D.C.Cir.
1969); cf. Consarc Corp. v. U.S. Treasury Dep't, 71 F.3d 909,
913 (D.C.Cir. 1995) (status quo means the last uncontested
status); See also Praefke Auto Elec. & Battery Co. v. Tecumseh
Products Co., 123 F. Supp.2d 470 (E.D.Wis. 2000) ("the courts
define `status quo' as the last peaceable, uncontested status of
the parties which preceded the actions giving rise to the issue
in controversy"). The last uncontested status preceding the
present controversy is the time prior to February 17, 2001, when
the President signed the Executive Order.
12. In Chamber of Commerce v. Reich, 74 F.3d 1322 (D.C.Cir.
1996), the D.C. Circuit held that the President may not use his
procurement powers to create a new set of labor relations rules,
different from those established by Congress and preserved
through the National Labor Relations Act.
13. The D.C. Circuit in Reich drew on the body of NLRA
preemption cases "that mark out the boundaries of the field
occupied by the NLRA," to conclude that "[n]o state or federal
official or government entity can alter the delicate balance of
bargaining and economic power that the NLRA establishes." 74
F.3d at 1333-34, 1337. The court thus made plain that NLRA
preemption principles, which initially applied to state laws
establishing general rules of conduct, apply with equal force to
Presidential Executive Orders that "similarly . . . encroach
into the NLRA's regulatory territory" by imposing standards of
conduct as a condition of doing business with the government.
14. The Supreme Court has articulated two distinct NLRA
pre-emption principles. Building and Const. Trades Council of
the Metro. Dist. v. Associated Builders and Contractors of
Mass./Rhode Island, Inc., 507 U.S. 218, 224, 113 S.Ct. 1190,
122 L.Ed.2d 565 (1993) ("Boston Harbor").
15. The first, "Garmon pre-emption," forbids regulation of
activities that are arguably protected or arguably prohibited by
the NLRA. San Diego Building Trades Council v. Garmon,
359 U.S. 236, 244, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959); Boston
Harbor, 507 U.S. at 224-25, 113 S.Ct. 1190; Reich, 74 F.3d at
16. The second, "Machinists pre-emption," prohibits
regulation of areas that have been left to be controlled by the
play of economic forces. Machinists v. Wisconsin Employment
Relations Commission, 427 U.S. 132, 140, 96 S.Ct. 2548, 49
L.Ed.2d 396 (1976); Boston Harbor, 507 U.S. at 225, 113 S.Ct.
1190; Reich, 74 F.3d at 1334. This line of pre-emption holds
that government regulation may not interfere with "Congress'
intentional balance between the uncontrolled power of management
and labor to further their respective interests" within the
collective bargaining process. Boston Harbor, 507 U.S. at 226,
113 S.Ct. 1190; Reich, 74 F.3d at 1334.
17. A PLA is a form of a prehire collective bargaining
agreement. A prehire agreement is an agreement negotiated before
the start of a construction project, usually before employees
are hired. Section 8(f) of the National Labor Relations Act
("NLRA"), 29 U.S.C. § 158(f), authorizes the use of prehire
agreements in the construction industry.
18. Section 8(e) of the NLRA, 29 U.S.C. § 158(e), authorizes
prehire agreements to require all contractors and subcontractors
performing work on a particular construction project to be bound
by the terms of a prehire agreement covering the project.
19. Taken together, §§ 8(e) and (f) of the NLRA authorize the
use of a PLA on a construction project, pursuant to which all
contractors and subcontractors operating on the project must
agree to adhere to the PLA's terms.
20. In enacting §§ 8(e) and (f), Congress undeniably
established the parameters within which construction employers
and unions could bargain, influenced only by their own economic
power, and the "free play of economic forces." The Executive
Order undeniably intrudes into that field, by skewing those
economic forces. Just as the Executive Order at issue in Reich
interfered with the free play of economic forces by removing a
legitimate bargaining weapon from the employers' arsenal, this
Executive Order also interferes with those economic forces by
placing the unions on notice that, in attempting to negotiate a
PLA, they will be bargaining against the weight of the
Government's promised financial assistance. Accordingly, the
Executive Order conflicts with the NLRA under the principles of
21. The Executive Order also conflicts with the NLRA under the
principles of Machinists pre-emption for another reason. In
Boston Harbor, the Court explained that, "[t]o the extent that
a private purchaser may choose a contractor based upon that
contractor's willingness to enter into a prehire agreement, a
public entity as purchaser should be permitted to do the same."
507 U.S. at 231, 113 S.Ct. 1190. And, the Court recognized that,
"there was some force to [the] argument . . . that denying an
option to public owner-developers that is available to private
owner-developers itself places a restriction on Congress'
intended free play of economic forces identified in
Machinists." By conditioning the award of federal financial
assistance on the City of Richmond's relinquishment of its right
to enter into a PLA, the Executive Order interferes with an area
Congress sought to leave controlled by the free play of economic
22. The Executive Order also conflicts with the NLRA under
principles of Garmon pre-emption. Section 8(e) expressly
preserves to unions and construction employers the right,
through their prehire agreements, to limit contracting and
subcontracting on a construction site to those firms that agree
to adhere to the collective bargaining agreement. Woelke &
Romero Framing, Inc. v. NLRB, 456 U.S. 645, 652-54, 102 S.Ct.
2071, 72 L.Ed.2d 398
(1982). Yet, the Executive Order prohibits project owners and
construction managers from requiring, through their "bid
specifications, project agreements, or other controlling
documents," that any contractor or subcontractor on the project
"or on other related construction project(s)" adhere to a
collective bargaining agreement. 66 Fed. Reg. 11225 (emphasis
added). Thus, by its literal terms, the Executive Order strips
from construction owners and managers, and from unions seeking
to bargain with those entities, the right to negotiate the kind
of agreement expressly protected by § 8(e), i.e., an agreement
requiring all the contractors and subcontractors on the site to
abide by a master collective bargaining agreement. See Reich,
74 F.3d at 1335 (describing the PLA on the Boston Harbor project
as "a `pre-hire' agreement in the construction industry [that]
is a legal option under § 8(f) of the NLRA as an exception to
the general prohibition under § 8(e) against `hot cargo'
23. The Executive Order conflicts with the NLRA under the
principles of Garmon pre-emption for an additional reason.
Garmon preemption bars any governmental regulation that
conflicts with the "complex and interrelated federal scheme of
law, remedy and administration." Reich, 74 F.3d at 1334. The
Executive Order conflicts with the "federal [labor law] scheme"
by essentially disqualifying from federal assistance any entity
that seeks to exercise its right to use a PLA on its
construction project. Thus, for example, when the State of
Maryland was awaiting FHWA approval of the Wilson Bridge PLA,
FHWA warned it that if it proceeded without the necessary
approval, it would lose its federal funding. Thus, like the
Government's attempt in Reich to debar contractors that hired
striker replacements, this Executive Order disqualifies from
participation in federal programs any entity that utilizes
certain provisions covered by the NLRA. In each case, the
governmental actions have impermissibly interfered with
Congress' "complex scheme" of collective bargaining, by
penalizing employers and unions that engage in activities
"protected or prohibited" by the NLRA.
24. Because the Executive Order unquestionably conflicts with
the NLRA, the plaintiff BCTD has shown that it is likely to
succeed on the merits of this case.
25. Although FHWA approval is still necessary for Plaintiff
BCTD to be able to enforce its PLA on the Wilson Bridge project,
Plaintiff BCTD is entitled to a preliminary injunction to return
to the status quo that existed before the Executive Order was
put in place: Plaintiff BCTD had negotiated an agreement,
binding on Maryland, and Maryland was using its "best efforts"
to implement it. Enjoining the Executive Order would permit
Maryland to revive those efforts, and the State has represented
that, if given the opportunity, that is what it will do. There
is no question that the State does not control the process and
thus is unable to provide complete assurance that it will
succeed in including the PLA in the bid specification. Absent an
injunction, however, Plaintiff BCTD can be assured of
26. The harm to the defendants from an Order preliminarily
enjoining the enforcement of the Executive Order is minimal. A
preliminary injunction would merely preserve the plaintiffs'
NLRA rights pending the outcome of this case. Prior to the
implementation of the Executive Order, owners and construction
managers on federal and federally-assisted construction projects
had long had the authority to negotiate PLAs with construction
27. An injunction would further the public interest because,
absent an injunction, the State of Maryland is prohibited from
proceeding with its portion of the Wilson Bridge construction in
the manner it has determined will best serve the interest of its
citizens. Moreover, the public interest favors enjoining an
Executive Order that violates the Constitution or federal
statutes. O'Donnell Constr. Co. v. District of Columbia,
963 F.2d 420, 429 (D.C.Cir. 1992) (holding that "issuance of a
preliminary injunction [against a constitutionally suspect
affirmative action plan] would serve the public interest in
maintaining a system of laws free of unconstitutional racial
classifications"); Washington v. Reno, 35 F.3d 1093 (6th Cir.
1994) (stating that there is a "public interest in having
agencies abide by the federal laws that govern their existence
28. Plaintiff BCTD did not significantly delay filing this
action. In fact, it filed 19 days after the President amended
the Executive Order. See Moltan Co. v. Eagle-Picher Ind.,
55 F.3d 1171, 1176 (6th Cir. 1995) (delay not held against
plaintiffs where they were seeking other avenues to resolve
dispute). Moreover, "mere delay, without any explanation on [the
defendant's] part of why such delay negatively affected them,
[does] not lessen [the plaintiffs] claim of irreparable injury."
Ty, Inc. v. The Jones Group, 237 F.3d 891, 903 (7th Cir.
2001); see also, Kansas Health Care Ass'n v. Kansas Dept. of
Social Services, 31 F.3d 1536, 1544 (10th Cir. 1994);
Culliford v. CBS, Inc., 1984 WL 787, 1984 U.S. Dist. LEXIS
20204 (D.C. 1984).
29. Plaintiff BCTD is entitled to a preliminary injunction
prohibiting the defendants from enforcing the Executive Order
against the Wilson Bridge PLA negotiated between plaintiff BCTD
and Parsons Constructors. See National Treasury Employees Union
v. Yeutter, 918 F.2d 968, 976 (D.C.Cir. 1990) (narrowly drawn
injunction appropriate where portions of challenged government
program remained lawful).
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