## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 13 2004 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LOCAL 514 TRANSPORT WORKERS UNION OF AMERICA; LOCAL 627 INTERNATIONAL UNION OF OPERATING ENGINEERS; LOCAL LODGE 898 INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS; LOCAL 584 INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL, ORNAMENTAL AND REINFORCING IRON WORKERS; LOCAL 916 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES; LOCAL 1358 NATIONAL ASSOCIATION OF LETTER CARRIERS; LOCAL 1558 INTERNATIONAL UNION, UNITED AUTO, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA; OKLAHOMA STATE AFL-CIO; EDWARDS PIPELINE SERVICES, INC., Plaintiffs - Appellants, No. 02-7077

v. FRANK KEATING, Governor of the State of Oklahoma,

Defendant - Appellee,-2-

OKLAHOMANS FOR JOBS AND JUSTICE, INC.; KENT DUVALL; MICHELLE McKENZIE; STEPHEN WEESE, Defendants-IntervenorsAppellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA

(D.C. NO. 01-CV-633-S)

Laurence E. Gold, AFL-CIO, Washington, D.C. (James E. Frasier, Steven R. Hickman, Frasier, Frasier & Hickman, Tulsa, Oklahom a; Gene Stipe, Eddie Harper, Stipe Law Firm, McAlester, Oklahoma; and Ge rald B. Ellis, Tulsa, Oklahoma, with him on the brief) for Plaintiffs-App ellants. John N. Hermes, McAfee & Taft, Oklahoma City, Oklah oma (D. Kent Meyers, Mary H. Tolbert, Crowe & Dunlevy, Oklahoma City, Ok lahoma, with him on the brief) for Defendants-Appellees Frank Keating and O klahomans for Jobs and Justice, Inc. John R. Martin, National Right to Work Legal Defens e Foundation, Inc., Springfield, Virginia, for Defendants-Appellees Kent Duvall, Michelle McKenzie and Stephen Weese.

Before SEYMOUR , PORFILIO , andMURPHY , Circuit Judges.

MURPHY , Circuit Judge.1 This court’s Certification of Questions of State Law is attached to, and

made a formal part of this published opinion. -3- Plaintiffs filed a complaint in district court seek ing a declaration that numerous provisions of article XXIII, § 1A of the O klahoma Constitution were preempted by federal law and that any remaining non -preempted provision was not severable from the preempted provisions. The d istrict court concluded as follows: (1) the only provisions of article XXIII, § 1A that were preempted by federal labor law were §§ 1A(B)(5) and 1A(C); and ( 2) §§ 1A(B)(5) and 1A(C) were severable from the remaining portions of artic le XXIII, § 1A. Plaintiffs appealed to this court contending that t he district court erred in concluding that § 1A(B)(1) is not preempted by fede ral law and that §§ 1A(B)(1), 1A(B)(5), and 1A(C) are severable from the remainin g portions of article XXIII, § 1A. In an order certifying questions of state law to the Oklahoma Supreme Court, 1 this court first held that the district court had erred in concluding § 1A(B)(1) is not preempted by federal law. We further held that § 1A(E) was also preempted to the extent that it enforced the p rovisions of §§ 1A(B)(1), 1A(B)(5), and 1A(C). Having so held, this court ce rtified the following two questions to the Oklahoma Supreme Court:

1. Is severability analysis required in light of t he preemption of article XXIII, § 1A(B)(1), § 1A(B)(5), § 1A(C), and § 1A(E) (insofar as it enforces § 1A(B)(1), § 1A(B)(5), and§ 1A(C)) as to-4-

workers covered by the NLRA, as opposed to the “inv alidation” of those provisions? 2. If severability analysis is appropriate, are § 1A(B)(1), § 1A(B)(5), § 1A(C), and § 1A(E) (insofar as it enf orces § 1A(B)(1), § 1A(B)(5), and § 1A(C)) severable from the non-pre empted portions of § 1A? In a published opinion issued on December 16, 2003, the Oklahoma Supreme Court answered the first question in the ne gative, thereby rendering the second question moot. Local 514 Transp. Workers Union of Am. v. Keating , No. 99,178, 2003 WL 22952807, at *1, *3-*4, *11 (Okla. Sup. Ct. Dec. 16, 2003). In holding that a severability analysis was not necess ary, the Oklahoma Supreme Court concluded as follows:

First, we note that whether to apply severability a nalysis here is a matter of state law. With respect to whether severability analysis is required here, we think it only logical to exten d the trial court’s analysis concerning the Railway Labor Act, the Civi l Service Reform Act, the Postal Reorganization Act, and federal enc laves to those sections of the right to work amendment that have b een held to be preempted by the Labor Management Relations Act and the National Labor Relations Act. Consequently, we hold that th e right to work amendment contemplates that certain of its provisio ns might not operate under certain conditions because of the Lab or Management Relations Act and the National Labor Relations Act, just as the trial court held that the right to work amendment contemp lated that it would not apply to employees covered by the Railway Labor Act, the Civil Service Reform Act, or the Postal Reorganizat ion Act, and had no application to federal enclaves, such as military bases. Thus, severability analysis is not necessary. Our conclusion that severability analysis is unnece ssary is buttressed by the fact that the Oklahoma right to w ork law applies to state and local government workers and agricultural workers, regardless of its preemption by federal law with re spect to certain2 Although all nine Justices of the Oklahoma Supreme Court concluded that

the non-preempted provisions of article XXIII, § 1Aremained valid, three of the Justices believed that a severability analysis was necessary to reach that result. Local 514 Transp. Workers Union of Am. v. Keating , No. 99,178, 2003 WL 22952807, *9-*13 (Okla. Sup. Ct. Dec. 16, 2003) (Su mmers, J., concurring in the result).

3 In this court’s Certification of Questions of State Law, we addressed the Plaintiffs’ contention that § 1A(B)(1) is preempted by federal law. We did so for the narrow purpose of resolving Plaintiffs’ content ion that the entirety of article XXIII, § 1A is invalid because several of its key p rovisions are preempted by federal law. In their complaint, however, Plaintif fs did not ask the district court to separately declare that § 1A(B)(1) is preempted. This fact, coupled with the Oklahoma Supreme Court’s conclusion that it is not necessary to conduct a severability analysis to conclude that the remainin g portions of article XXIII, § 1A are valid despite the preemption of some provisi ons, makes it unnecessary to alter in any way the district court’s judgment. -5- classes of employees in certain situations. Plaint iffs argue that this is not important because state employees are currently not subject to security agreements because of legislation. Based on this fact, plaintiffs claim that the right to work law provide s no new protections to state workers. But the right to wor k law is a constitutional amendment, so it will protect state employees from any legislative changes that might otherwise be made to labor laws governing public employees. Thus, the right to wor k law provides a significant additional protection to public employe es. Id. at *4. 2 Based on the Oklahoma Supreme Court’s answer to thi s court’s certified questions, the judgment of the United States Distri ct Court for the Eastern District of Oklahoma is hereby AFFIRMED

. 3

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 24 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LOCAL 514 TRANSPORT WORKERS UNION OF AMERICA; LOCAL 627 INTERNATIONAL UNION OF OPERATING ENGINEERS; LOCAL LODGE 898 INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS; LOCAL 584 INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL, ORNAMENTAL AND REINFORCING IRON WORKERS; LOCAL 916 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES; LOCAL 1358 NATIONAL ASSOCIATION OF LETTER CARRIERS; LOCAL 1558 INTERNATIONAL UNION, UNITED AUTO, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA; OKLAHOMA STATE AFL-CIO; EDWARDS PIPELINE SERVICES, INC., Plaintiffs-Appellants,

v. FRANK KEATING, Governor of the State of Oklahoma, Defendant-Appellee, No. 02-7077 (D.C. No. 01-CV-633-S) (E.D. Okla.)1 Plaintiffs are a group of eight “labor organization s” within the meaning of

Okla. Const. art. XXIII, § 1A(A) and an employer wh o is a party to a collective bargaining agreement containing provisions which ca nnot be included in future collective bargaining agreements pursuant to the te rms of article XXIII, § 1A. -2- OKLAHOMANS FOR JOBS AND JUSTICE, INC.; KENT DUVALL; MICHELLE McKENZIE; STEPHEN WEESE, Defendants-Intervenors- Appellees.

CERTIFICATION OF QUESTIONS OF STATE LAW

Before SEYMOUR , PORFILIO , and MURPHY , Circuit Judges.

MURPHY , Circuit Judge.

I. INTRODUCTION Plaintiffs 1 filed a complaint in the United States District Co urt for the Eastern District of Oklahoma seeking a declaration that numerous provisions of article XXIII, § 1A of the Oklahoma Constitution we re preempted by federal law and that any remaining non-preempted provisions of § 1A were not severable from the preempted provisions. Although the distri ct court concluded that the majority of the provisions of article XXIII, § 1A w ere not preempted by the2 Plaintiffs acknowledge that if this court were to r everse the district court’s

determination that § 1A(B)(1) is not preempted by f ederal labor law, the question of severability under Oklahoma law would arise from a legal premise not considered by the district court. In such an event , however, they urge this court to exercise its discretion to reach the severability issue on the merits rather than remanding to the district court. Cf., e.g. , Elec. Distrib., Inc. v. SFR, Inc. , 166 F.3d 1074, 1083-86 (10th Cir. 1999) (rejecting district court decision to apply -3- relevant federal labor laws, it did conclude that § 1A(B)(5) and § 1A(C) were preempted by the National Labor Relations Act (“NLRA”), 29 U.S.C. § 151 et
seq. , and the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 141 et
seq. Having so determined, the district court proceede d to analyze whether the non-preempted portions of § 1A were severable from§ 1A(B)(5) and § 1A(C). The district court concluded that the core provisio ns of article XXIII, § 1A were contained in § 1A(B)(1)-(4) and, applying Okla. Stat. tit. 75, § 11a and its presumption of severability, further concluded thatthe invalidation of § 1A(B)(5) and § 1A(C) would not hinder the enforcement of tho se core provisions. Accordingly, the district court determined that § 1 A(B)(5) and § 1A(C) were severable from the remaining portions of § 1A. Plaintiffs bring the instant appeal challenging two aspects of the district court’s decision. First, they contend the districtcourt erred in concluding that § 1A(B)(1) is not preempted by federal labor law. Second, they assert the district court erred in determining that § 1A(B)(5) and § 1A (C) are severable from the remainder of § 1A and, in any event, the additional preemption of § 1A(B)(1) clearly tips the balance in favor of non-severabili ty. 2Colorado law rather than Utah law and then applying Utah choice of law

principles to issue on appeal without remanding to the district court for it to do so in first instance). Our determination infra to certify the severability question to the Oklahoma Supreme Court renders these considerat ions moot. -4- Exercising jurisdiction pursuant to 28 U.S.C. § 129 1, this court holds as follows: (1) plaintiffs have standing to assert that article XXIII, § 1A(B)(1) is preempted by federal law as part of their claim that the entirety of § 1A is void; and (2) § 1A(B)(1) is preempted by the NLRA. Havin g so concluded, we certify to the Oklahoma Supreme Court the question whether § 1A(B)(1), § 1A(B)(5), and § 1(C) are severable from the remaining, non-pr eempted portions of § 1A.
See 10th Cir. R. 27.1; Okla. Stat. tit. 20, §§ 1601-161 1.
II. BACKGROUND In April 2001, the Senate and House of Representati ves of the First Session of the 48th Oklahoma Legislature approved Senate Jo int Resolution No. 1, which directed the Oklahoma Secretary of State to “refer to the people for their approval or rejection” a proposed amendment to article XXIII of the Oklahoma Constitution. A special election was subsequently arranged for the sole purpose of voting on the proposed amendment, denominated St ate Question No. 695 (“SQ 695”). The ballot title described SQ 695 as follow s: The measure adds a new section to the State Constit ution. It adds Section 1A to Article 23. The measure defines the term “labor organization.” “Labor organization” includes union s. That term also includes committees that represent employees.3 Article XXIII, § 1A provides as follows:

A. As used in this section, “labor organization” m eans any organization of any kind, or agency or employee rep resentation committee or union, that exists for the purpose, in whole or in part, of dealing with employers concerning wages, rates o f pay, hours of work, other conditions of employment, or other form s of compensation. B. No person shall be required, as a condition of employment or continuation of employment, to: 1. Resign or refrain from voluntary membership in, voluntary affiliation with, or voluntary financial support of a labor organization; 2. Become or remain a member of a labor organizati on; 3. Pay any dues, fees, assessments, or other charg es of any kind or amount to a labor organization; 4. Pay to any charity or other third party, in lie u of such -5- The measure bans new employment contracts that impo se certain requirements to get or keep a job. The measure ban s contracts that require joining or quitting a labor organization to get or keep a job. The measure bans contracts that require remaining i n a labor organization to get or keep a job. The measure ban s contracts that require the payment of dues to labor organizations to get or keep a job. The measure bans contracts that require otherpayments to labor organizations to get or keep a job. Employees woul d have to approve deductions from wages paid to labor organizations. The measure bans contracts that require labor organization appr oval of an employee to get or keep a job. The measure bans other employment contracts. Violation of this section is a misdemeanor. SQ 695 Ballot Text, http://www.state.ok.us/%7Eelections/sq695txt.html . On September 25, 2001, the Oklahoma electorate approve d SQ 695 by a vote of 447,072 to 378,465; article XXIII, § 1A became effe ctive on September 28,
2001. 3payments, any amount equivalent to or pro rata port ion of dues, fees, assessments, or other charges regula rly required of members of a labor organization; or 5. Be recommended, approved, referred, or cleared by or through a labor organization. C. It shall be unlawful to deduct from the wages, earnings, or compensation of an employee any union dues, fees, a ssessments, or other charges to be held for, transferred to, or pa id over to a labor organization unless the employee has first authoriz ed such deduction. D. The provisions of this section shall apply to a ll employment contracts entered into after the effective date of this section and shall apply to any renewal or extension of any existing c ontract. E. Any person who directly or indirectly violates any provision of this section shall be guilty of a misdemeanor.

4 Plaintiffs identified two federal enclaves in theiramended complaint: Vance Air Force Base in Enid, Oklahoma, and Tinker Air Force Base in Oklahoma City, Oklahoma. -6- Shortly after the constitutional amendment went int o effect, plaintiffs filed a complaint in federal court seeking, inter alia , a declaration that numerous provisions of article XXIII, § 1A were preempted byfederal labor law and that the entirety of § 1A was unenforceable because the non-preempted provisions were not severable from the preempted provisions. Local 514, Transp. Workers Union of Am. v. Keating , 212 F. Supp. 2d 1319, 1322-23 (E.D. Okla. 2002) (setting out eleven counts in plaintiffs’ amended c omplaint). The parties agreed to have the district court resolve the matter on cr oss-motions for summary judgment. In resolving the case, the district court made the following key rulings: 1. The district court rejected the contention thatarticle XXIII, § 1A was preempted as applied to federal enclave employees 4 and employees covered by the-7-

Railway Labor Act (“RLA”), 45 U.S.C. § 151 et seq. , the Civil Service Reform Act (“CSRA”), 5 U.S.C. § 7101 et seq. , and the Postal Reorganization Act (“PRA”), 39 U.S.C. § 1201 et seq. Local 514 , 212 F. Supp. 2d at 1324-26. The district court concluded instead that § 1A simply d id not apply to individuals subject to regulation under the RLA, CSRA, PRA, or those employed in a federal enclave. Id. at 1326. It noted that from this conclusion “it f ollows that the preemption suggested by Plaintiffs with respect to these individuals has no application to any portion of Oklahoma’s right-to-w ork law.” Id. 2. The district court rejected plaintiffs’ content ion that article XXIII, § 1A(B)(1) is preempted by the NLRA/LMRA. Id. at 1327 n.6. Plaintiffs argued before the district court that 29 U.S.C. § 164(b), the provision of the LMRA giving states the right to enact right-to-work laws , only gives states the power to prevent employers from requiringunion membership as a condition of employment, not the authority to prevent employers from prohibitingunion membership as a condition of employment. Id. Citing Lincoln Federal Labor Union 19129 v. Northwestern Iron & Metal Co. , 335 U.S. 525 (1949), the district court concluded that the Supreme Court “has upheld state right-to-work laws which prohibit discrimination in employment based o n both union membership and non-membership alike.” Local 514 , 212 F. Supp. 2d at 1327 n.6.5 In light of this determination, which defendants have not appealed,

§ 1A(E) is also preempted to the extent that it imp oses criminal penalties for the violation of § 1A(B)(5) and § 1A(C). -8- 3. The district court concluded that § 1A(B)(5) an d § 1A(C) are preempted by the NLRA/LMRA. Id. at 1326-27. 5 4. Having concluded that § 1A(B)(5) and § 1A(C) we re preempted, the district court moved on to the question whether the se provisions were severable from the remainder of § 1A. The district court beg an by noting that severability is a question of state law. Id. at 1328 (citing Panhandle E. Pipeline Co. v. Oklahoma ex rel. Comm’rs of the Land Office , 83 F.3d 1219, 1229 (10th Cir. 1996)). According to the district court, the appli cable state law on severability was that set out in Okla. Stat. tit. 75, § 11a. Id. Section 11a establishes a presumption of severability. See Okla. Stat. tit. 75, § 11a (providing that “the provisions of every act or application of the act s hall be severable” unless the act contains a non-severability clause). Pursuant to § 11a, the district court concluded that the valid provisions of § 1A were se parable from the preempted provisions because: The core provisions of Oklahoma’s right-to-work lawcan be found in subsections (B)(1) through (4), which ban union andagency shop provisions in collective bargaining agreements. Th ese provisions are certainly capable of being carried out in the absen ce of subsections (B)(5) and (C), which deal with exclusive hiring ha lls and check-off arrangements. The core provisions of Article 23, § 1A are not dependent on the invalid provisions to give them me aning and effect.-9-

The core provisions are capable of being executed w ithout subsections (B)(5) and (C) being in effect. In sum , there is no interconnection or interdependence between the vali d and invalid provisions of the law. Thus, it is certainly true to say that the law’s core provisions banning union and agency shops woul d have been enacted notwithstanding the absence of the invalid provisions prohibiting exclusive hiring halls and regulating c heck-off arrangements.

. . . . With respect to Oklahoma’s right-to-work law, it is clear that the overriding purpose of the law was to ensure that employment was not conditioned upon one’s membership in, voluntary aff iliation with, or financial support of a labor organization or on a r efusal to join, affiliate, or financially support a labor organizat ion. Enforcement of the core provisions of the law which carry out this undeniable purpose is in no way hindered by the court’s invali dation of the subsidiary provisions of subsections (B)(5) and (C) . Consequently, the invalid provisions of Article 23, § 1A are seve rable from the core provisions and the remainder of Oklahoma’s right-to -work law is upheld. Local 514 , 212 F. Supp. 2d at 1329, 1331.

III. DISCUSSION A. Preemption of § 1A(B)(1) 1. Standing Article XXIII, § 1A(B)(1) provides that “No person shall be required, as a condition of employment or continuation of employme nt, to . . . [r]esign or refrain from voluntary membership in, voluntary affiliation with, or voluntary financial support of a labor organization.” Defendants assert that none of the plaintiffs have standing to challenge the validity of § 1A(B)( 1) because there is no6 As noted by plaintiffs, defendants raise this quest ion of justiciability for

the first time on appeal. Nevertheless, this courtis under a continuing obligation to examine both its own jurisdiction and the jurisd iction of the district court, whether or not raised by the parties. See FW/PBS, Inc. v. City of Dallas , 493 U.S. 215, 230-31 (1990) (“[E]very federal appellate court has a special obligation to satisfy itself not only of its own jurisdiction, bu t also that of the lower courts in a cause under review, even though the parties are pre pared to concede it. . . . And if the record discloses that the lower court was wi thout jurisdiction this court will notice the defect, although the parties make no con tention concerning it.” (alteration in original) (internal citation and quo tations omitted)).

7See Keating Brief at 19 (“Overlooking the sheer absurd ity of such a term existing in a collective bargaining agreement , it is clear that the Labor Plaintiffs have failed to advance sufficient factual allegatio ns to demonstrate that they are subject to Subsection (B)(1)’s strictures.”). -10- indication in the record that § 1A(B)(1) could everapply to any of them. 6 In particular, defendants assert that there is no indi cation in the record that the union plaintiffs intend to become parties to collective b argaining agreements which prohibit individuals, as a condition of employment or continuation of employment, from joining, associating with, or prov iding financial support to a labor organization. 7Likewise, defendants note that the only allegatio n in the record regarding the standing of plaintiff Edwards Pipeline is the following: “Edwards Pipeline is a party to a collective bargai ning agreement . . . that contains provisions governing payroll deductions an d hiring hall and referral procedures that SQ 695 purports to outlaw in any re newal of this agreement.” Defendants recognize that this allegation establish es Edwards Pipeline’s standing to challenge § 1A(B)(5) and § 1A(C). They argue, h owever, that it fails to-11-

establish that Edwards Pipeline is presently or wil l likely in the future be affected by § 1A(B)(1). In support of its assertion that none of the plaint iffs have standing to challenge § 1A(B)(1), defendants rely heavily on th e Supreme Court’s decision in FW/PBS, Inc. v. City of Dallas , 493 U.S. 215 (1990). In FW/PBS, the Supreme Court analyzed an ordinance which “regulat[ed] sexu ally oriented businesses through a scheme incorporating zoning, licensing, a nd inspections.” Id. at 220- 21. A majority of the Court concluded that the lic ensing scheme was unconstitutional because it did not provide adequat e procedural safeguards as required by Freedman v. Maryland, 380 U.S. 51 (1965). FW/PBS, 493 U.S. at 229 (plurality opinion); id. at 238 (Brennan, J., concurring). Despite the fac t that the Court had invalidated the entire licensing sche me, it nevertheless vacated the judgment of the Fifth Circuit Court of Appeals inva lidating two specific subsections of that same scheme because there was n o indication in the record that any of the plaintiffs were affected by those p articular subsections. See id. at 231-36. In so doing, the Court noted that it had a n ongoing obligation to examine in every case on review whether the lower court had jurisdiction to entertain a particular claim. Id. at 231. Relying on FW/PBS, defendants argue that merely because plaintiffs h ave standing to challenge some provisions of article XX III, § 1A, does not mean that-12-

they have standing to challenge all portions of § 1 A. This court does not necessarily disagree with defendants’ abstract stat ement of the law. It appears, however, that defendants have stated a rule of law in search of a case. To satisfy the Constitution’s case-or-controversy r equirement, plaintiffs must demonstrate that they have suffered an “injury in fact” that is fairly traceable to the challenged action of the defendantand that it is “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 167, 180-81 (2000). Importantly, plaintiffs’ standing must be analyzed with reference to the particular claim they are assertin g. See Int’l Primate Prot. League v. Adm’rs of Tulane Educ. Fund, 500 U.S. 72, 77 (1991) (“Standing does not refer simply to a party’s capacity to appear in court. Rather, standing is gauged by the specific common-law, statutory or con stitutional claims that a party presents.”). Accordingly, this court must examine the particular claim asserted by plaintiffs to determine whether they have standing. Plaintiffs are directly aggrieved by article XXIII, § 1A(B)(2)-(4), those portions of § 1A that proscribe union security agre ements. Plaintiffs specifically claimed in their complaint that because SQ 695 does not contain a severability clause and is not otherwise severable, and because substantial portions of it are federally preempted, article XXIII, § 1A is invalid in its entirety. Plaintiffs’-13-

assertion that § 1A(B)(1) is preempted by the NLRA is but a step in its argument that § 1A in its totality, specifically including § 1A(B)(2)-(4), is invalid. Plaintiffs’ claim is thus not a stand-alone challen ge to § 1A(B)(1), but a broader challenge to § 1A. This case, then, is similar to Catholic Social Services v. Shalala , 12 F.3d 1123, 1125-26 (D.C. Cir. 1994). In Shalala , a group of home health care providers challenged a Medicare cost-limit rule pro mulgated by the Secretary of Health and Human Services. Id. at 1124. The portion of the rule at issue, a provision that made the cost-limit rule retroactive ly applicable, did not affect any of the plaintiffs. Id. at 1124-25. The D.C. Circuit concluded that the p laintiffs nevertheless had standing because their challenge d id not run to the retroactivity provision qua retroactivity provision, but instead was an assert ion that the inclusion of the provision rendered the entire cost -limit rule void ab initio

. Id. at 1125-26. In these circumstances, the D.C. Circuit concluded that the plaintiffs had “been quite deft in fashioning their claim so a s to establish standing.” Id. at 1125. Plaintiffs have presented the same conceptual link between their argument concerning § 1A(B)(1) and the overall validity of a rticle XXIII, § 1A as did the plaintiffs in Shalala . Plaintiffs have demonstrated that they have an i njury in fact attributable to § 1A(B)(2)-(4) and that a favorable decision that § 1A is non--14-

severable and void in its entirety will redress that injury. Thus, plaintiffs’ claims regarding § 1A(B)(1) are justiciable even if plaint iffs could not bring a distinct claim seeking relief only in relation to that provi sion.
2. Merits In rejecting plaintiffs’ contention that article XX III, § 1A(B)(1) is preempted by the NLRA, the district court simply no ted that the “Supreme Court has upheld state right-to-work laws which prohibit discrimination in employment based on both union membership and non-membership a like.” Local 514 , 212 F. Supp. 2d at 1327 n.6 (citing Lincoln Fed. Labor Union 19129 v. Northwestern Iron & Metal Co. , 335 U.S. 525 (1949)). Plaintiffs argue that Lincoln Federalis not a preemption case at all and is irrelevant to t he question whether § 1A(B)(1) is preempted by the NLRA. They further argue feder al courts have uniformly held that state statutes similar to § 1A(B)(1) are preempted by the NLRA. Defendants, on the other hand, contend that the dis trict court correctly relied on Lincoln Federalin concluding that § 1A(B)(1) is not preempted. T his court reviews the district court’s preemption decision de novo

. See Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co. , 170 F.3d 985, 989 (10th Cir. 1999). Article XXIII, § 1A(B)(1), together with § 1A(E), p rohibit and make it a misdemeanor for an employer to require as a conditi on of employment that any person “[r]esign or refrain from voluntary membersh ip in, voluntary affiliation-15-

with, or voluntary financial support of a labor org anization.” Similarly, the NLRA makes it an “unfair labor practice” for an emp loyer “to interfere with, restrain, or coerce employees” in the exercise of c ertain fundamental statutory rights, including the right to “form, join, or assi st labor organizations”; bargain collectively; and “engage in other concerted activi ties.” 29 U.S.C. §§ 157, 158(a)(1). The National Labor Relations Board (“NL RB”) is empowered “to prevent any person from engaging in any unfair labo r practice.” Id. § 160. The question, therefore, is whether the NLRA, which ves ts in the NLRB the power to remedy the unfair labor practice of discriminating against union employees or supporters, preempts § 1A(B)(1) and § 1A(E). It is clear from the Supreme Court’s decision in Garner v. Teamsters, Chauffeurs & Helpers Local Uni on 776 , 346 U.S. 485 (1953), that the answer to that questi on is “yes.”
In Garner , the Court held that the NLRA preempted a state st atute which declared it to be an unfair labor practice for an e mployer “[b]y discrimination in regard to hire or tenure of employment, or any term or condition of employment to encourage or discourage membership in any labor organization.” Id. at 487 n.3. The Court determined that “Congress has taken in hand this particular type of controversy” and confide[d] primary interpretation and application o f [a set of substantive rules embodied in the NLRA] to a specif ic and specially constituted tribunal and prescribed a particular pr ocedure for investigation, complaint and notice, and hearing an d decision,8 The Supreme Court reaffirmed and amplified Garnerin San Diego

Building Trades Council v. Garmon , 359 U.S. 236 (1959), again holding that the states cannot regulate activities clearly protected or prohibited by the NLRA. To leave the States free to regulate conduct so pla inly within the central aim of federal regulation involves too great a danger of conflict between power asserted by Congress and req uirements imposed by state law. . . . [T]o allow the States t o control conduct which is the subject of national regulation would c reate potential frustration of national purposes. Id. at 244; see also id. at 247 (“[S]ince remedies form an ingredient of any integrated scheme of regulation, to allow the State to grant a remedy [] which has been withheld from the [NLRB] only accentuates the danger of conflict.”).

9 See supra n.5. -16- including judicial relief pending a final administr ative order. Congress evidently considered that centralized admi nistration of specially designed procedures was necessary to obta in uniform application of its substantive rules and to avoid [ the] diversities and conflicts likely to result from a variety of local procedures and attitudes toward labor controversies. Id. at 488, 490. Accordingly, the Court made clear th at the states could not adopt supplementary or alternative remedies to those set out in the NLRA. Id. at 498-99 (“[W]hen two separate remedies are brought to bear on the same activity, a conflict is imminent.”); id. at 501 (noting that although Congress could allow, as it sees fit, alternative or supplemental state reme dies for the commission of unfair labor practices, it had not done so in the context of 29 U.S.C. § 158). 8 Because article XXIII, § 1A(B)(1) operates within the same sphere as 29 U.S.C. §§ 157 and 158(a)(1), and because § 1A(E) provides for cri minal enforcement, a remedy different from the remedy specified in the NLRA, § 1A(B)(1) 9 is preempted under10 Plaintiffs argue at length in their opening brief t hat § 14(b) of the LMRA,

29 U.S.C. § 164(b), which allows states to prohibit“the execution or application of agreements requiring membership in a labor organ ization as a condition of employment,” does not bear on the question of wheth er article XXIII, § 1A(B)(1) is preempted by the NLRA. The district court did n ot rely on § 164(b) in concluding that § 1A(B)(1) is not preempted and def endants do not assert that § 164(b) is an alternative basis upon which this co urt can affirm the district court. Accordingly, this court does not address the questi on. -17- the Supreme Court’s decisions in Garnerand Garmon

. See Friendly Soc’y of Engravers & Sketchmakers v. Calico Engraving Co. , 238 F.2d 521, 523-25 (4th Cir. 1956) (relying on Garnerto hold preempted portion of South Carolina rightto-work act substantially similar to article XXIII, § 1A(B)(1)); Bukovac v. Daniel
Constr. Co. , 469 F. Supp. 176, 177, 179 (W.D. Va. 1979) (same with regard to Virginia Right-To-Work Statute); see also Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters , 436 U.S. 180, 193 (1978) (holding that the preemption analysis set out in Garnerand Garmon “has its greatest force when applied to state laws regulating the relation betwe en employees, their union, and their employer”). 10
The district court did not cite Garneror Garmon . Instead, it relied exclusively on Lincoln Federal Labor Union 19129 v. Northwestern I ron & Metal
Co. , 335 U.S. 525 (1949), for the proposition that the Supreme Court “has upheld state right-to-work laws which prohibit discriminat ion in employment based on both union membership and non-membership alike.” Local 514 , 212 F. Supp. 2d11 Lincoln Federal Labor Union 19129 v. Northwestern I ron & Metal Co. , 335 U.S. 525, 528-29 (“These state laws were given timely challenge . . . on the ground that insofar as they attempt to protect non- union members from discrimination, the laws are in violation of rights guaranteed employers, unions, and their members by the United States Constitution . . . . It [is] contended that the state laws . . . deprived the appellant unions and employers of equal protection . . . .” (footnote omitted)); id. at 532 (“It is contended that the [state] laws deny unions and their members equal protection of the laws and thus offend the equal protection clause of the Fourteenth Amendment. Bec ause the outlawed contracts are a useful incentive to the growth of union membe rship, it is said that these laws weaken the bargaining power of unions and corr espondingly strengthen the power of employers.”). -18- at 1327 n.6. Defendants likewise rely exclusively on Lincoln Federaland its companion case, American Federation of Labor v. American Sash & Doo r Co. , 335 U.S. 538 (1949), to support the district court’ s conclusion that article XXIII, § 1A(B)(1) is not preempted by the NLRA. Both the district court and defendants read far too much into Lincoln Federaland American Sash

. In Lincoln Federal , union members offered up a two-pronged challenge to laws from North Carolina and Nebraska that prohibit ed discrimination against non-union members. 335 U.S. at 527-29. First, the union members contended that the provisions outlawing union security agreem ents weakened unions and, at the same time, strengthened the bargaining position of employers. 11 Id. at 532. Although recognizing that “this may be true,” the c ourt concluded as follows regarding the corollary inclusion of protections fo r union members in the relevant state laws: “This circumstance alone, without regar d to others that need not be-19-

mentioned, is sufficient to support the state laws against a charge that they deny equal protection to unions as against employers and non-union workers.” Id. Second, the union members contended that the level of protection afforded union members was inferior to the protection afforded non -union employees. Id. The court rejected this contention outright, noting that other contentions made by the union members demonstrated that there was simply no factual basis for this assertion. Id. at 532-33. Similarly, in American Sash , the Court rejected a challenge to an Arizona right-to-work scheme that allegedly lacked mutuality between the protections afforded union members and non-union employees. 33 5 U.S. at 540-41. The Court simply noted that it was “unable to find any indication that Arizona’s amendment and statutes are weighted on the side of non-union as against union workers.” Id. at 541. The Court went on to note, however, the f ollowing:
In National Labor Relations Board v. Jones & Laughlin Steel Corp. , [301 U.S. 1 (1937)], this Court considered a chal lenge to the National Labor Relations Act on the ground that it applied restraints against employers but did not apply similar restrai nts against wrongful conduct by employees. We there pointed ou t, [301 U.S. at 46], the general rule that “legislative authority, exerted within its proper field, need not embrace all the evils within its reach.” And concerning state laws we have said that the existen ce of evils against which the law should afford protection and the relative need of different groups for that protection “is a matter f or the legislative judgment.” West Coast Hotel Co. v. Parrish , [300 U.S. 379, 400 (1937)]. American Sash , 335 U.S. at 541-42.12 Both groups of defendants appear to argue that beca use the NLRA was in

existence at the time the Supreme Court decided Lincoln Federaland American Sash , the Court must have considered and rejected sub silentio the very preemption issue before this court. See Keating Brief at 40 n.12 (“Both Section 7 and Section 8(a)(1) [of the NLRA] were enacted in 1 935, well before the decision in Lincoln FederalandAmerican Sash & Door . The preemptive effect of these statutes was therefore ripe for consideration had t he parties or the Court believed the issues applicable.”); Intervenors Oklahomans Fo r Jobs and Justice, Inc. et al. Brief at 6-7 (arguing that both NLRA and LMRA were in existence at time Court decided Lincoln Federaland American Sash and that the Court must have been “well aware of the existing federal right to join a nd support unions” at the time it decided Lincoln Federaland American Sash ). This contention lacks merit. Under defendants’ theory, we would have to read eve ry opinion of the Supreme Court as addressing and rejecting sub silentio and sua sponte every possible argument that could have potentially been made by the parties on appeal. -20- It is readily apparent that the Court in Lincoln Federaland American Sash was focused on the very narrow question of whether the state provisions at issue violated the Equal Protection Clause of the Fourtee nth Amendment. There is absolutely no discussion of the question of preempt ion and, hence, no indication that provisions like article XXIII, § 1A(B)(1) are not preempted by the NLRA. 12 In fact, the Supreme Court made clear in Railway Employees’ Department v.
Hanson , 351 U.S. 225 (1956), that it does not view Lincoln Federaland American Sash as preemption cases. In Hanson , the court rejected a Fifth Amendment challenge to the RLA’s preclusion of state right-to -work laws, as applied to workers covered by the RLA, and confirmed Congress’ authority to legislate and preempt state laws. Id. at 232-33. In so doing, the Court attributed to Lincoln Federaland American Sash the narrow principle that a state’s police powers-21-

extend to this arena only “[i]n the absence of conf licting federal legislation.” Id.
at 233
Nor can Lincoln Federaland American Sash be read to stand for the proposition that the Equal Protection Clause of the Fourteenth Amendment requires the states to adopt measures similar to § 1A(B)(1) if they choose to enact right-to-work laws. The Court was not required to reach this ultimate question because the state schemes at issue in both cases pr ovided mutuality of protection. Lincoln Federal , 335 U.S. at 532-33; American Sash , 335 U.S. at 541. Furthermore, the Court took great pains in American Sash to make clear that the relative need for protection against discrimination of union and non-union workers “is a matter of legislative judgment.” 335 U.S. at 542 (quotation omitted). Moreover, we note that neither union nornon-union status implicates a fundamental right or constitutes a protected class, so that a statute which addresses or favors one group over another need onl y reflect a rational basis. See, e.g., City of Charlotte v. Local 660, Int’l Ass’n o f Firefighters , 426 U.S. 283, 286 (1976) (“Since it is not here asserted—and this Cou rt would reject such a contention if it were made—that respondents’ status as union members . . . is such as to entitle them to special treatment under the E qual Protection Clause . . . .”). Accordingly, for defendants to prevail on their cla im that the Fourteenth Amendment mandates mutuality in the treatment of un ion and non-union workers13 Section 1A(E) is likewise preempted to the extent t hat it enforces

§ 1A(B)(1). See also supra n.5 (noting, as a consequence of portions of distr ict court’s judgment not appealed by defendants, that § 1A(E) is also preempted to the extent it enforces § 1A(B)(5) and § 1A(C)). -22- they must demonstrate that it would be irrational f or a state to only provide protection against employment discrimination to non -union workers. In light of the federal protection provided to union members un der the NLRA, defendants cannot make any such showing. See Ala. State Fed. of Labor, Local Union No. 103 v. McAdory , 325 U.S. 450, 472 (1945) (state may, consistent w ith the Equal Protection Clause, exclude from regulation organizations it has reason to believe are already appropriately regulated by national leg islation).
Garnerand Garmon make clear that the NLRA preempts article XXIII, § 1A(B)(1). Furthermore, neither Lincoln Federalnor American Sash stand for the proposition that the Fourteenth Amendment requires a provision such as § 1A(B)(1) to be a part of every state right-to-work law. Accordingly, the district court’s conclusion that § 1A(B)(1) is not preemptedby the NLRA is erroneous. 13 B. Certification of the Question of Severability t o the Oklahoma Supreme Court 1. Certification The United States Court of Appeals for the Tenth Ci rcuit, on its own motion pursuant to 10th Cir. R. 27.1 and Okla. Stat . tit. 20, §§ 1601-1611, hereby certifies to the Oklahoma Supreme Court the followi ng unsettled questions of-23-

state law which may determine the outcome of the ab ove-captioned action pending before this court:

1. Is severability analysis required in light of t he preemption of article XXIII, § 1A(B)(1), § 1A(B)(5), § 1A(C), and § 1A(E) (insofar as it enforces § 1A(B)(1), § 1A(B)(5), and§ 1A(C)) as to workers covered by the NLRA, as opposed to the “inv alidation” of those provisions? 2. If severability analysis is appropriate, are § 1A(B)(1), § 1A(B)(5), § 1A(C), and § 1A(E) (insofar as it enf orces § 1A(B)(1), § 1A(B)(5), and § 1A(C)) severable from the non-pre empted portions of § 1A? Our statement of the questions is not meant to limi t the Oklahoma Supreme Court’s inquiry. We acknowledge the Oklahoma Supre me Court’s reserved authority to reformulate legal questions presented through the certification procedure. See Okla. Stat. tit. 20, §§ 1602.1, 1604(A)(3). In ac cordance with § 1604(A)(2), we summarized the relevant factual and procedural background above. We summarize below the parties arguments re garding severability and the considerations which guided this court to certify t he severability question to the Oklahoma Supreme Court. The parties are in substantial disagreement as to t he content of Oklahoma’s law of severability as it applies to constitutional amendments adopted by ballot referendum. Plaintiffs argue that the district cou rt erred by invoking Okla. Stat. tit. 75, § 11a to hold that a presumption of severa bility applies to article XXIII, § 1A. They note that the Oklahoma Constitution draws a distinction between-24-

statutes enacted by the Oklahoma Legislature and th e process of the Oklahoma Legislature referring a proposed constitutional ame ndment to the people for approval. Compare Okla. Const. art. V (defining “Legislative authori ty,” vesting that authority in the “Legislature,” subject to the reservation of certain powers in the people, and describing the extent of that autho rity), with Okla. Const. art. XXIV (describing the processes by which the Oklahom a Constitution can be amended). Nothing in the Oklahoma Constitution, pl aintiffs note, classifies the process of referring a constitutional amendment to the people for approval as an “act” or statute. In contrast, they argue, Okla. S tat. tit. 75, § 11a, entitled “Construction of statutes—Severability,” sets forth rules for “the construction of the statutes of this state,” and is contained in ti tle 75, which governs “Statutes and Reports” and otherwise establishes how the OklahomaLegislature may enact statutes. Plaintiffs assert that this is the reaso n the Oklahoma Supreme Court has never applied Okla Stat. tit. 75, § 11a to a ballotmeasure or the Oklahoma Constitution. In sharp contrast to the approach ad opted by the district court, plaintiffs assert that the proper severability anal ysis is contained in In re Initiative
Petition No. 347 , 813 P.2d 1019, 1030 (Okla. 1991). They assert th is case establishes that the partial invalidation of a ball ot measure renders the remainder of a ballot measure invalid unless “the proposed law contains a severability provision and the questioned provisions could be el iminated without impairing the14 Although noting in a footnote in their principal br ief that they think the

district court’s “saving construction of Section 1Ato be legally erroneous,” plaintiffs did not appeal the district court’s conc lusion that § 1A does not apply to federal enclave employees and employees covered by the RLA, CSRA, and PRA. Appellant’s Brief at 27 n.5; see also supra page 5 (discussing district court’s conclusion regarding reach of article XXIII, § 1A). Plaintiffs assert, however, that the inapplicability of § 1A to these groups of employees bears upon the question of whether “Section 1A is non-severable as to workplaces regulated by the NLRA.” Id. ; see also id. (“[F]or purposes of this appeal it matters not whether the inapplicability of Section 1A is a prod uct of preemption or construction.”). Whether the non-applicability of § 1A to the classes of employees set out above is relevant to the question of severability inheres in Question 2 which this court respectfully certifies to the Oklahoma Supreme Court. -25- effect of the act.” Id. Because SQ 695 does not contain a severability cl ause, and because article XXIII, § 1A sets out a unified regu latory scheme, plaintiffs argue that the preemption of portions of § 1A renders the entirety of § 1A invalid. 14 In response, defendants assert that the preemption of any particular portion of article XXIII, § 1A does not render that provisi on invalid. Instead, they note that in any case in which an individual was not subject to the primary jurisdiction of the NLRB, Oklahoma could act pursuant to § 1A(B) (1) and § 1A(E). Assuming severability analysis is appropriate, defe ndants assert the district court was correct to apply Okla. Stat. tit. 75, § 1 1a’s presumption of severability to article XXIII, § 1A. They note the Oklahoma Sup reme Court has specifically stated that the provisions of the Oklahoma Constitu tion should be “construed using the usual rules of statutory construction.” Cowart v. Piper Aircraft Corp. , 665 P.2d 315, 317 (Okla. 1983). Accordingly, they contend that Cowartmandates-26-

the application of Okla. Stat. tit. 75, § 11a to th e question of the severability of article XXIII, § 1A. Defendants also assert that t here is no special severability standard for ballot measure votes. They distinguis h Initiative Petition 347on the ground that it relied on a pre-election challenge t o an initiative petition. Defendants assert that Initiative Petition 347stands only for the limited proposition that when a proposed law contains a sev erability clause, a challenge to the law will not be considered until the initiat ive is approved by the voters. According to defendants, the case makes no mention of the consequences had the initiative petition not contained a severability cl ause. In light of the divergent lines of state authority potentially applicable to the severability analysis of article XXIII, § 1A, t he absence of Oklahoma case law involving the question of severability of a ballot referendum which does not contain a severability clause, and the considerable importance of the issues raised in this case, this court seeks the authoritative gu idance of the Oklahoma Supreme Court on the questions articulated above. 2. Procedural Orders Implementing Certification We order this appeal abated and further proceedings in this court stayed pending resolution of the questions certified above . We direct the Clerk of this Court to transmit a copy of this certification orde r to the parties and to forward a copy of this order, together with the parties’ brie fs (which also display the names-27-

and addresses of counsel of record, see Okla. Stat. tit. 20, § 1604(A)(4)), to the Oklahoma Supreme Court pursuant to Okla. Stat. tit. 20, § 1603.1.