Filed: May 03, 2012
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-1957 INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS; SOUTH CAROLINA AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, Plaintiffs - Appellants, v. NIMRATA HALEY, a/k/a Nikki Haley, in her official capacity as Governor of South Carolina; CATHERINE TEMPLETON, in her official capacity as Director of the South Carolina Department of Labor, Licensing and Regulation, Defendants - Appellees. Appe
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-1957 INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS; SOUTH CAROLINA AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, Plaintiffs - Appellants, v. NIMRATA HALEY, a/k/a Nikki Haley, in her official capacity as Governor of South Carolina; CATHERINE TEMPLETON, in her official capacity as Director of the South Carolina Department of Labor, Licensing and Regulation, Defendants - Appellees. Appea..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1957
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE
WORKERS; SOUTH CAROLINA AMERICAN FEDERATION OF LABOR AND
CONGRESS OF INDUSTRIAL ORGANIZATIONS,
Plaintiffs - Appellants,
v.
NIMRATA HALEY, a/k/a Nikki Haley, in her official capacity
as Governor of South Carolina; CATHERINE TEMPLETON, in her
official capacity as Director of the South Carolina
Department of Labor, Licensing and Regulation,
Defendants - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. C. Weston Houck, Senior District
Judge. (2:11-cv-00153-CWH)
Argued: March 20, 2012 Decided: May 3, 2012
Before NIEMEYER, DUNCAN, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Kathleen Phair Barnard, SCHWERIN CAMPBELL BARNARD
IGLITZIN & LAVITT, Seattle, Washington, for Appellants. Ashley
Prickett Cuttino, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, PC,
Greenville, South Carolina, for Appellees. ON BRIEF:
Christopher Corson, General Counsel, INTERNATIONAL ASSOCIATION
OF MACHINISTS & AEROSPACE WORKERS, Upper Marlboro, Maryland;
Armand Derfner, DERFNER ALTMAN & WILBORN, Charleston, South
Carolina, for Appellants. Robert D. Cook, James E. Smith, Jr.,
OFFICE OF THE ATTORNEY GENERAL, Columbia, South Carolina; Mark
H. Wall, WALL TEMPLETON & HALDRUP, PA, Charleston, South
Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
The International Association of Machinists and Aerospace
Workers (“IAMAW”) and the South Carolina AFL-CIO (“SC AFL-CIO”)
(collectively, “the unions”) brought claims pursuant to 42
U.S.C. § 1983 against Nimrata Haley, Governor of South Carolina,
and Catherine Templeton, Director of the South Carolina
Department of Labor, Licensing, and Regulation (“SC DOL”), 1 in
their official capacities (collectively, “Appellees”) for making
anti-union statements. The unions allege that Appellees
instituted a policy of enhanced regulatory scrutiny against
unions and pro-union workers in retaliation for their attempts
to organize workers in the state in violation of their rights
under the First and Fourteenth Amendments and the National Labor
Relations Act (“NLRA”), codified as amended at 29 U.S.C. §§ 151-
169. The unions sought, inter alia, an injunction requiring
Appellees to “commit . . . to remain neutral.” J.A. 53. The
district court dismissed the complaint and the unions appealed.
Based largely on the reasoning of the district court, we affirm.
1
Templeton has since left SC DOL.
3
I.
A.
Because this appeal arises from a motion to dismiss, we
look primarily to the unions’ complaint 2 for the relevant facts.
See Brockington v. Boykins, 637 F.3d 503, 505-06 (4th Cir.
2011). We do not, however, take account of allegations in the
complaint labeled as fact but that constitute nothing more than
“legal conclusions” or “naked assertions.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 557 (2007)).
The primary allegations in the unions’ complaint are (1)
that Haley and Templeton were
unlawfully utilizing “increased regulatory scrutiny”
of union activities and threats to immediately
activate the “punitive machinery” of state government
against unions and against employees who wish to join
or who advocate in favor of unions . . . in
retaliation for the activities of [the unions], [the
unions’] members and their potential members, in
violation of their 1st Amendment rights,
J.A. 36-37 (quoting Blankenship v. Manchin, 471 F.3d 523, 529
(4th Cir. 2006)); and (2) that Appellees “agreed to utilize the
machinery of state government to prevent workers in the state
from joining unions, from organizing unions in their workplaces
and from advocating for unions,” in direct conflict with the
2
Unless otherwise noted, “complaint” refers to the unions’
second amended complaint.
4
NLRA, J.A. 41. The activities against which Appellees allegedly
retaliated are (1) IAMAW’s previous representation of aerospace
workers in South Carolina, including at a manufacturing plant
acquired by Boeing Co. in 2009; (2) IAMAW’s ultimately
unsuccessful fight against decertification at the Boeing plant
in 2009; (3) IAMAW’s continuing advocacy for “working conditions
and organizing [of] workers at . . . facilities in South
Carolina, including those operated by Boeing,” J.A. 39; and (4)
SC AFL-CIO’s participation “in the campaign to retain IAMAW as
the representative of workers at Boeing’s facility,” id.
According to the complaint, the regulatory machinery
through which Appellees retaliated and will continue to
retaliate against the unions and their allies is South
Carolina’s “Right to Work” law. South Carolina’s Right to Work
law makes unlawful agreements between unions and employers to
restrict employment to union members and outlaws conditioning
employment on union membership. S.C. Code §§ 41-7-20, 30. The
law also makes it unlawful for “any person . . . to interfere .
. . with [any] person in the exercise of his right to work . . .
or . . . to compel or attempt to compel any person to join, or
support, or refrain from joining or supporting any labor
organization.”
Id. at § 41-7-70(1).
Investigation and
enforcement related to South Carolina’s Right to Work law are
the responsibilities of the Director of SC DOL.
Id. at § 41-7-
5
75(A). The unions allege that Appellees have used and will
continue to use the investigative and enforcement power provided
by this law in order to unfairly subject the unions and their
allies to increased regulatory scrutiny.
Notably for purposes of our analysis, the unions alleged no
specific regulatory action taken against them or their allies
pursuant to the Right to Work law or any other law. They
pointed instead to statements made by Appellees that contain
anti-union rhetoric. 3 For example, the unions alleged that
Haley, at a press conference announcing her intention to
nominate Templeton to be Director of SC DOL, stated:
The [SC DOL] is going to have a large role over the
next couple of years, one being with the unions, and
that is the fact that we think we are going to have a
big union fight, as we go forward, with Boeing, and
you are right now looking at the only female in the
nation [Templeton] that has fought the largest UAW
push that we’ve been through, and so she is ready for
that, she is ready for the challenge, she knows what
it takes to take it on, and she understands that it’s
going to be a partnership level that we cannot lose.
J.A. 40-41. At the same press conference, Haley said, “We are
going to fight the unions, and I needed a partner to help me do
it; [Templeton is] the right person to help me do it.” Id. at
41. Later, Haley publicly stated that it was “no secret” that
she does not “like the unions,”
id. at 43, and “[w]e keep the
3
We assume, without deciding, that all statements made by
Appellees were made under color of state law.
6
unions out. . . . We are not going to allow unions to come into
this state,” id. at 44. Templeton, for her part, is alleged to
have stated, for example, that “this is an anti-union
administration. . . . We don’t want Boeing or anybody else to
introduce extra bureaucracy into the administration.”
Id. at
43.
The unions asserted four constitutional violations. First,
the unions claimed that Appellees’ statements show that a policy
of increased regulatory scrutiny has been instituted in
retaliation for the unions’ protected activity, in violation of
the First Amendment, and that this policy “will violate the
rights of employees at Boeing plants, and elsewhere in South
Carolina, to organize, join a union, bargain collectively, and
engage in other protected concerted activity” (the “retaliation”
claim).
Id. at 46. Second, the unions alleged that Appellees’
actions have violated the First Amendment by “chill[ing] the
speech and associational activities of members and potential
members and allies of [the unions] and other labor unions
everywhere within the state of South Carolina” (the “chilling”
claim).
Id. at 46. Third, the unions claim that the activities
of Appellees have “deprive[d] South Carolina workers of their
liberty to join and/or support unions” without due process of
7
law, in violation of the Fourteenth Amendment. 4 Id. at 51.
Fourth, the unions allege that Appellees’ activity amounts to
“disparate and adverse treatment” that deprives the unions and
their allies of “equal protection under the Fourteenth
Amendment.”
Id.
The unions brought one non-constitutional claim. The
unions alleged that the Appellees’ activities are preempted by
the NLRA. Section 7 of the NLRA guarantees workers the right to
form unions and bargain collectively. It provides, “Employees
shall have the right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or
other mutual aid or protection.” 29 U.S.C. § 157. The section
preempts state regulation of this protected conduct. Lodge 76,
Int’l Ass’n of Machinists & Aerospace Workers v. Wis. Emp’t
Relations Comm’n,
427 U.S. 132, 148-51 (1976); San Diego Bldg.
Trades Council, Millmen’s Union, Local 2020 v. Garmon,
359 U.S.
236, 244 (1959). The unions claimed that Section 7 preempts the
actions by appellees:
4
The unions do not specify whether they assert a violation
of procedural or substantive due process. Based on the
allegations in the complaint, as well as the unions’ briefing,
however, we are comfortable interpreting the unions’ claim as
involving substantive due process.
8
By publicly declaring the State of South Carolina’s
policy and plan to oppose workers’ efforts to organize
unions and to advocate for better terms and conditions
of work in association with other workers, and by
Haley’s appointing Templeton as the LLR Director to
help her “fight the unions,” Defendants Haley and
Templeton are acting under color of state law to
interfere with rights of unions, union members and
potential union members guaranteed by the NLRA. This
declared policy to “fight unions” is preempted by the
NLRA.
J.A. 48. The unions sought an injunction barring this “policy
and plan.”
B.
On January 20, 2011--approximately one week after Haley’s
swearing in as governor--the unions filed their original
complaint. The unions filed an amended complaint on February
18, 2011, adding additional statements by Appellees. On March
3, 2011, Appellees moved to dismiss the unions’ amended
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).
Before the ruling on Appellees’ motion, the district court
allowed the unions to file a second amended complaint. The
unions filed their second amended complaint on July 25, 2011.
On August 8, 2011, the district court granted Appellees’ motion.
In dismissing the unions’ complaint, the district court
found three determinations dispositive. First, the district
court determined that in making the anti-union statements,
Appellees were themselves engaging in protected activity. In
other words, “First Amendment rights are implicated on both
9
sides of this case.” J.A. 70. As such, the district court
imposed a heightened burden on the unions, viewing skeptically
any proposed interference with Appellees’ protected activity.
Second, the district court determined that the statements
allegedly made by the Appellees contained no specific threats of
regulatory action, but instead were the type of “general, broad,
political pronouncements,” that are “both pervasive and mundane”
in the political arena. Id. at 75-76. If such commonplace
activity were actionable, the district court concluded,
virtually every public statement by an elected official on a
divisive political issue would spawn litigation. Third, the
district court determined that the unions alleged no specific
regulatory action against them or their allies. “Although a
threat need not be corroborated by action to be actionable,” the
district court reasoned, such action and the sequence in which
it occurred could support a plaintiff’s interpretation of an
otherwise innocuous statement as a threat.
Id. at 76-77. The
district court concluded that these infirmities doomed the
unions’ claims. The unions timely appealed.
II.
On appeal, we review a district court’s 12(b)(6) dismissal
de novo, employing the same standard as the district court. To
survive a motion to dismiss, a complaint must contain
10
“sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’ ” Iqbal, 556 U.S. at
678 (quoting
Twombly, 550 U.S. at 555). To satisfy this
plausibility standard, the complaint must indicate that a
defendant’s liability is “more than a sheer possibility.”
Id.
“Where a complaint pleads facts that are ‘merely consistent
with’ a defendant’s liability, it ‘stops short of the line
between possibility and plausibility of entitlement to relief.’
”
Id. (quoting Twombly, 550 U.S. at 557). Following Twombly,
if there is an “obvious alternative explanation” for each of the
actions alleged that suggests lawful conduct, the complaint has
not satisfied the plausibility standard.
See 550 U.S. at 567.
We now turn to a consideration of the arguments.
A.
We begin our analysis with the unions’ retaliation claim.
“A retaliation claim under 42 U.S.C. § 1983 must establish that
the government responded to the plaintiff’s constitutionally
protected activity with conduct or speech that would chill or
adversely affect his protected activity.” The Baltimore Sun Co.
v. Ehrlich, 437 F.3d 410, 416 (4th Cir. 2006). The three
elements of a retaliation claim are: (1) protected activity by
the plaintiff, (2) an adverse action against plaintiff that
chills the plaintiff’s protected activity, and (3) a causal
relationship between the protected activity and the adverse
11
action. Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 686 (4th
Cir. 2000).
Like the district court, we focus our analysis on the
second element: an adverse action against a plaintiff that
chills the plaintiff’s protected activity. First, we agree with
the district court that the unions have failed to sufficiently
allege any regulatory action taken against them or their allies.
Although the unions do assert, for example, that “Haley . . .
has established, maintained, and enforced the State’s policy and
practice to suppress . . . workers’ efforts to join a union,”
J.A. 39, they point to no investigation, fine, or any other
action, regulatory or otherwise, to support this or any other
similar allegation. Without any factual underpinning, such
allegations amount to nothing more than “naked assertions” that
we cannot credit for the purpose of analyzing a motion to
dismiss. See Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S.
at 557). 5
Yet this is not the end of our inquiry. A plaintiff may
sufficiently allege the second element of a retaliation claim
based upon speech alone. As the district court correctly
observed, however, a plaintiff relying only on speech to fulfill
5
To be sure, should any adverse action occur later, the
unions may renew their challenge, although questions of
causation remain.
12
the second element has a heavy burden to overcome. As we noted
in Page v. Lexington County School District One, 531 F.3d 275
(4th Cir. 2008), “[t]he needs of effective governance command
that the bar limiting government speech be high.”
Id. at 287
(quoting Kidwell v. City of Union,
462 F.3d 620, 626 (6th Cir.
2006)). For this reason,
[w]hen the challenged government action is government
speech, there is no retaliation liability--even if the
plaintiff can demonstrate a substantial adverse
impact--unless the government speech concerns “private
information about an individual” or unless it was
“threatening, coercive, or intimidating so as to
intimate that punishment, sanction, or adverse
regulatory action will imminently follow.”
Baltimore Sun, 437 F.3d at 417 (quoting
Suarez, 202 F.3d at
689). There is no allegation that Appellees’ statements
concerned private information about an individual, so, to be
actionable, the statements alleged by the unions must threaten
imminent action.
We agree with the district court that Appellees’ alleged
statements do not contain such threats. On their face, the
statements alleged by the unions contain nothing that we could
plausibly interpret as indicating imminence. Most of the
statements do not reference action at all--e.g., Haley’s
statement that she does not like unions. Even the statements
that include an indication of action, however--for example,
Haley’s statement that Appellees are “going to fight the
13
unions”--are far too broad and nebulous to allow us to interpret
them as intimating imminent action. 6 Supporting this conclusion
is the fact that the unions filed their second amended complaint
nearly eight months after their original complaint--in which
they first claimed that such statements intimated imminent
action--and yet the second amended complaint contains no
allegation of specific regulatory action following these
statements. Although, as the district court correctly noted,
actual regulatory action is not necessary to state a claim for
retaliation, such action is helpful to a plaintiff’s argument
that an otherwise innocuous statement should be interpreted as a
threat of imminent action. See Blankenship, 471 F.3d at 529
(“[T]he actual regulatory scrutiny that [plaintiff] experienced
shortly after [Governor Manchin’s remarks] strongly supports
interpreting Manchin’s remarks as a threat of increased
regulatory scrutiny.”). In the absence of any such support, we
6
In the same vein, such general statements are not
actionable because there is an “obvious alternative explanation”
as to the meaning of each of the statements alleged that
suggests lawful conduct. See Twombly, 550 U.S. at 567. The
obvious alternative explanation is that these statements are
nothing more than rhetoric in a political debate that is by its
nature “rough and tumble.” Baltimore
Sun, 437 F.3d at 419
(quoting Eaton v. Meneley,
379 F.3d 949, 956 (10th Cir. 2004)).
Because the unions have alleged no facts tending to show that
these statements are anything but heated political rhetoric, the
statements are not actionable.
14
are left with the conclusion that Appellees’ statements are not
threats of imminent action and therefore are not actionable.
B.
We now turn briefly to the unions’ remaining claims, each
of which fails for the same reason that their retaliation claim
failed: the unions have failed to allege any action or threat of
imminent action on the part of Appellees. We first consider the
unions’ chilling claim. To be actionable as chilling protected
activity, the alleged government action must be “likely [to]
deter a person of ordinary firmness from the exercise of First
Amendment rights.” Constantine v. Rectors & Visitors of George
Mason Univ., 411 F.3d 474, 500 (4th Cir. 2005) (quotation marks
omitted). We agree with the district court that Appellees’
statements--indicating nothing more than political opposition to
unions and not threatening any action--“would not reasonably
deter workers or union organizers of ordinary firmness from
exercising their First Amendment rights.” J.A. 78.
Accordingly, we affirm the dismissal of the unions’ chilling
claim.
We next consider the unions’ two Fourteenth Amendment
claims, beginning with the substantive due process claim. As we
have stated:
The core of the concept of substantive due process is
the protection of the individual against arbitrary
action of government . . . . [O]nly the most
15
egregious official conduct can be said to be arbitrary
in the constitutional sense. Thus, the threshold
question is whether the behavior of the governmental
officer is so egregious, so outrageous, that it may
fairly be said to shock the contemporary conscience.
The kind of . . . conduct that fairly can be said to
shock the conscience involves abusing executive power,
or employing it as an instrument of oppression.
Martin v. Saint Mary's Dep’t Soc. Servs., 346 F.3d 502, 511 (4th
Cir. 2003) (quotation marks, citations, and alterations
omitted). Without some accompanying regulatory action, the
political rhetoric alleged by the unions here is itself
protected activity and thus a far cry from an abuse of power or
an act of government oppression. Accordingly, the district
court was correct to dismiss this claim. As to equal
protection, without an allegation of some action directed at the
unions or their allies, their allegation of disparate treatment
must be rejected. Accordingly, the district court was correct
to reject this claim.
Finally, we consider the unions’ NLRA preemption claim.
This claim too must fail because the unions allege no action
that could be preempted by the NLRA. Whatever the NLRA
preempts, it does not act as a bar to anti-union political
rhetoric without more. 7
7
To their credit, the unions acknowledge as much. See
Appellants’ Br. 28 (“[W]hat the NLRA demands of states is that
their officials do not go beyond protected expression of
political opinion.”).
16
III.
For the foregoing reasons, the dismissal of the unions’
claims is
AFFIRMED.
17
