Attorney General: Honorable George Jepsen, State Capitol, 2001-006 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

March 21, 2001

Honorable George Jepsen
State Senator
State Capitol
Hartford, CT 06106-1591

Dear Senator Jepsen:

You have requested an opinion concerning the scope of the Governor’s authority to deploy the National Guard in the context of a nursing home strike at a number of nursing homes across Connecticut. In particular, you ask whether the National Labor Relations Act ("NLRA") would limit state activity that would "tend to favor, by intent or effect, either side in a labor dispute." Your letter does not specify exactly how and for what purposes the National Guard would be employed in connection with this labor dispute.

As a basic premise, federal law preempts and prevails over any conflicting state law or regulation, and must be respected by state officials under the Supremacy Clause of the United States Constitution. New York Telephone Co. v. New York State Dept. Of Labor, 440 U.S. 519, 540 (1979); Dowling v. Slotnik, 244 Conn. 781, 791, cert. denied, 525 U.S. 1017 (1998).

At the core of federal protection in the area of labor law is the powerful and long-established principle that government must remain neutral in private labor disputes -- that it must not take action to favor or support one side over another. See generally, Lodge 76, Int’l. Ass’n. of Machinists & Aerospace Workers, AFL-CIO v. Wisconsin Employment Relations Comm’n, 427 U.S. 132 (1976). A narrow exception for government action may occur when there is an immediate, direct threat to public health and safety. There must be a showing and determination that the danger is imminent and specific, based on substantial, reliable factual evidence. This showing or determination must also consider other factors, such as less intrusive alternatives available to protect public health and safety.

The powers of the Governor are prescribed by statute and the State Constitution. Bridgeport v. Agostinelli, 163 Conn. 537, 546 (1972). Beyond assuring that the laws are faithfully executed, "the remainder of the governor's authority must be found in other constitutional provisions and in the statutes." Id. at 546-47. It is a general principle of law that "[e]mergencies do not create power or authority in a governor, as the executive, but they may afford occasions for the exercise of powers already existing." 38 AmJur 2d §4.

The National Guard "consists of such forces as may be organized and maintained by this state pursuant to the laws and regulations of the United States relating to the National Guard." Conn.Gen.Stat. § 27-2. The National Guard is a hybrid military organization, in that its personnel are members of both the federal and state National Guards. The National Guard is ordinarily under the control of the State except in times of war or other federal emergencies, when National Guard units are brought under federal control. Tirado-Acosta v. Puerto Rico Nat. Guard, 118 F.2d 852 (1st Cir. 1997).

Conn. Gen. Stat. §27-141 prescribes the governor’s powers with respect to the National Guard, and provides in relevant part:

The Governor shall be the Captain-General and, as such, commander-in-chief of the militia, and of the National Guard and the naval militia, not in the service of the United States, and may employ it, or any part of it, for the defense or relief of the state or any part of its inhabitants or territory; and shall have the powers necessary to carry into effect the provisions of this chapter. He shall issue all orders and prescribe all regulations for the organization and government of the organized militia, the National Guard and the Naval militia. Such orders and regulations shall not be in conflict with the laws and regulations of the United States. . .

(Emphasis supplied.)

Conn. Gen. Stat. §27-16 further provides:

In time of war, invasion, rebellion, riot or disaster, or reasonable apprehension thereof ... the Governor shall order out for active service such portion of the militia as he deems necessary. . . .

Under these provisions, the Governor has broad authority to employ the National Guard "for the defense or relief" of the State or "any part of its inhabitants" or in "time of war, invasion, rebellion, riot or disaster, or reasonable apprehension thereof," so long as such employment does not conflict with federal law.

We have not been provided with a detailed factual predicate sufficient to determine whether the employment of the National Guard in the context of a nursing home strike falls within the scope of these statutes, nor have we been given a detailed description of what specific function the Guard would be asked to perform in such an event. For purposes of this opinion, we will assume that if the Governor makes a factual finding that the health and lives of nursing home residents are in direct, imminent peril, then the exercise of his authority to call up the Guard in these circumstances would be appropriate. The precise issue we address is whether the use of the National Guard in connection with a nursing home strike would violate or be preempted by the NLRA.

The NLRA guarantees employees the right to organize, to bargain collectively and "to engage in other concerted activities for the purpose of .... mutual aid or protection." 29 U.S.C. § 157 ("Section 7").2 It also prohibits employers from interfering with employees in the exercise of the rights protected by section 7. See 29 U.S.C. § 158(a)(1) ("Section 8").3 The National Labor Relations Board ("NLRB") is vested with the power to enforce sections 7 and 8 of the NLRA and thus has exclusive jurisdiction to decide disputes concerning conduct that is subject to the NLRA. 29 U.S.C. § 160.

Although the NLRA contains no express preemption provision, Building Trades v. Associated Builders, 507 U.S. 218, 224, 113 S.Ct. 1190, 122 L.Ed.2d 565 (1993), the United States Supreme Court has articulated two distinct principles that make preemption under the NLRA nearly complete. The first, called "Garmon preemption," prevents states from regulating any conduct subject to the regulatory jurisdiction of the NLRA, including any activity that is even "arguably" within the reach of the NLRA:

When an activity is arguably subject to § 7 or § 8 of the [NLRA], the States as well as federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted.

San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 245, 79 S.Ct 773, 780, 3 L.Ed.2d 775 (1959). "The Garmon rule prevents States not only from setting forth standards of conduct inconsistent with the NLRA, but also from providing their own regulatory or judicial remedies for conduct prohibited or arguably prohibited by the Act." Wisconsin Department of Industry v. Gould, Inc. 475 U.S. 282, 286, 106 S.Ct. 1057, 89 L.Ed. 2d 223 (1986).

A second preemption principle, known as "Machinists preemption," prohibits state and municipal regulation of areas that have been left "to be controlled by the free play of economic forces." Machinists v. Wisconsin Employment Relations Commission, 427 U.S. 147, 96 S.Ct. 2548, 49 L.Ed.2d 396 (1976). At issue in Machinists was the State Labor Commission's attempt to designate the refusal of unionized workers to perform overtime during contract negotiations as an unfair labor practice under state law. The refusal to work overtime was aimed at putting economic pressure on the employer and was neither protected nor prohibited by the NLRA. The Court held that Congress did not intend such "self-help" activities to be regulated by the States because "the use of economic pressure by the parties to a labor dispute is ... part and parcel of the process of collective bargaining," and neither a state nor the NLRB is "afforded flexibility in picking and choosing which economic devices of labor and management shall be branded unlawful." Id. at 144, 149, 96 S.Ct. at 2555, 2557 (internal citations omitted).

Thus, well-established law makes clear that the scope of NLRA preemption is quite broad and states are severely circumscribed in their ability to intervene in labor disputes. Therefore, the use of the National Guard in the context of a labor dispute would clearly implicate the NLRA, and unless permitted by an exception to the broad preemptive sweep of the NLRA’s statutory scheme, could very well be illegal.

The Supreme Court has recognized very limited and narrow exceptions to the general rule of preemption where danger to life and safety is involved, on the theory that the "[p]olicing of actual or threatened violence to persons or destruction of property has been held most clearly a matter for the States." Machinists, 427 U.S. at 136. The Garmon Court further held that:

[D]ue regard for the presuppositions of our embracing federal system, including the principle of diffusion of power not as a matter of doctrinaire localism but as a promoter of democracy, has required us not to find withdrawal from the States of power to regulate where . . . the regulated conduct touched interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act.

San Diego Building Trades Council v. Garmon, 359 U.S. at 243-44 (emphasis supplied).

In a case involving a potential strike of a nursing home, the United States District Court for the eastern district of New York applied the Garmon principle and concluded that "[t]he State’s primary concern is to protect and promote the health of its inhabitants. An interest more 'deeply rooted in local feeling and responsibility' would be difficult to find." N.L.R.B. v. State of New York, 436 F. Supp. 335, 338 (E.D.N.Y.1977), aff’d, 591 F.2d 1331 (2d Cir. 1978), cert. denied, 440 U.S. 950 (1979).

At issue in N.L.R.B. v. State of New York was whether the State of New York could obtain an injunction enjoining nursing home workers from going on strike. The State argued that if the employees were permitted to strike, the health and welfare of the nursing home residents would be seriously jeopardized. The court denied the injunction as preempted by the NLRA, concluding that even if the State’s concerns were true, the injunction would directly interfere with the union’s right to strike as protected by section 7 of the NLRA. According to the court, "where §7 guarantees employees the right to engage in concerted activities, the guarantee applies to nearly all peaceful primary strikes and picketing in support of normal collective bargaining objectives even when they occur in a dispute threatening to cut off essential public services." Id. at 339, quoting Cox, Labor Law Preemption Revisited, 85 Harv. L. Rev. 1337, 1340 (1972).

The court explicitly recognized that "NLRA supremacy over the economic rights of unionized employees does not strip the State of its residual powers to protect the lives and health of [nursing home] residents." Id. at 339 (emphasis in original). As the court stated:

Given the vulnerable state of the residents of nursing homes should there be a cessation of services by those who are charged with their care, note must be taken that NLRA supremacy over the economic rights of unionized employees does not strip the State of its residual powers to protect the lives and health of those residents. While the State may not prohibit the employees from going out on strike or engaging in peaceful picketing, when it appears that the lives and health of nursing home residents are threatened, the State remains free, in the exercise of its local responsibility, to take whatever reasonable steps are necessary to protect the residents from the effects of strike activity.

Id. at 339 (emphasis supplied).

Thus, the court concluded, in the extremely narrow, extraordinary circumstance of danger to the lives and health of state residents, the state retained a limited power to take reasonable actions necessary to the protection of the residents. Application of this exacting standard to the present situation is necessarily fact-specific and requires an examination of whether the health and safety of residents are directly and imminently imperiled, whether alternatives to state intervention exist, and whether these alternatives would be adequate to protect the health and lives of affected individuals.

I have not been provided sufficient factual information about the current situation to enable me to make a determination as to whether this exacting standard could be met here; that is, whether employment of the National Guard or any other state action would be necessary to protect nursing home residents from direct, imminent danger to their lives and well being. All alternatives to state intervention must be explored to determine whether such alternatives would be adequate to protect the health and lives of the affected residents. In connection with this inquiry, the anticipated duration of the strike would be relevant to the determination of the danger to the nursing home residents.

These relevant factors and others must be assessed to decide whether the very narrow exception to preemption exists.4

Although the emergency circumstances described above may create an exception to the broad preemptive scope of the NLRA, any actions taken pursuant to this exception must be limited to those necessary to the protect the lives, health and safety of the residents of the nursing homes from direct, imminent danger, and such actions must be narrowly tailored to meet those objectives. They must be based on a factual showing or determination supported by substantial, reliable evidence. If the use of the National Guard in these circumstances cannot be justified under this test, then it would be preempted by the NLRA and in conflict with Conn. Gen. Stats. § 27-14.

I trust this opinion answers your inquiry.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL


1Under the State Constitution, the Governor is "the captain general of the militia of the state, except when called into the service of the United States." State Constitution, Article Fourth, Sec. 8.

229 U.S.C. §157 provides in pertinent part: "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 activies for the purpose of collective bargaining or other mutual aid or protection."

3Section 158(a)(1) of the NLRA states: "It shall be an unfair labor practice for an employer ... to interfere with, restrain or coerce employees in the exercise of [§ 7] rights."

4It is unclear what role would be played by the National Guard. Use of the Guard for patient care could implicate a broad range of state and federal regulatory provisions. We have not addressed these issues here.


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