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POWELL, J., concurring in judgment
It relied primarily on arguments with respect to hospitals in general. No testimony was introduced that the practice at Beth Israel is to seek early rehabilitation of patients by encouraging them to leave their rooms at the earliest time compatible with their condition, and to move about the hospital. The further weakness in petitioner's case is that it introduced no medical testimony that related such practices and needs to its cafeteria. Putting it differently, the undisputed evidence portrays this cafeteria as being one essentially operated for employees as their primary gathering place, and as almost wholly unrelated to patient care.
In sum, I view this case as essentially barren of the type of evidence that could be produced on behalf of many hospitals when confronted with a similar problem. See, e. g., NLRB v. Baptist Hospital, Inc., 576 F. 2d 107 (CA6 1978). My concurrence in the judgment is based entirely on the facts, as I disagree for the reasons above stated—with the rationale of the Board, its reliance upon a wholly inappropriate presumption, and its unrealistic distinction between hospital and retail-store cafeterias. I also note that the Court emphasizes the facts of this case, and the "critical significance of the fact] that only 1.56% of the cafeteria's patrons are patients.” Ante, at 502.°
8 Rather, the employer rested on the allegedly inflammatory nature of a union newsletter distributed by one employee, without introducing any evidence that the newsletter had fallen or would fall into the hands of patients or visitors. Furthermore, proof of such a probability would not be relevant to the no-solicitation portion of the hospital's rule. The hospital allowed one-to-one solicitation in the cafeteria until after the initiation of these proceedings; yet petitioner was "unable to show any instance of injury to patients” while that more permissive rule was in effect. 223 N. L. R. B. 1193, 1197 (1976).
Moreover, the Court's opinion expresses no view as to the validity of prohibiting employee solicitation or distribution in other areas of a hospital which may not be devoted “strictly" or "immediately” to patient care but to which patients and visitors have access. This question was not presented in this case.
HICKLIN ET AL. V. ORBECK, COMMISSIONER, DEPARTMENT OF LABOR OF ALASKA, ET AL.
APPEAL FROM SUPREME COURT OF ALASKA
No. 77–324. Argued March 21, 1978 Decided June 22, 1978
Appellants, at least five of whom are not residents of Alaska, challenged in
state court the constitutionality of the "Alaska Hire" statute (which was enacted professedly for the purpose of reducing unemployment within the State) that requires that all Alaskan oil and gas leases, easements or right-of-way permits for oil and gas pipelines, and unitization agreements contain a requirement that qualified Alaska residents be hired in preference to nonresidents. The trial court upheld the statute. The Alaska Supreme Court affirmed except for that part of the Act that contained a one-year durational residency requirement, which it held invalid. Held:
1. The invalidation of the one-year durational residency requirement does not moot the case, since & controversy still exists between the nonresident appellants, none of whom can qualify as "residents" under the statutory definition, and the appellees, state officials. Those appellants thus have a continuing interest in restraining the statutory discrimination favoring state residents. P. 523.
2. Alaska Hire violates the Privileges and Immunities Clause of Art. IV, 82. Pp. 523-534.
(a) Though the Clause "does not preclude disparity of treatment in the many situations where there are perfectly valid independent reasons for it," it "does bar discrimination against citizens of other States where there is no reason for the discrimination beyond the mere fact that they are citizens of other States.” Toomer v. Witsell, 334 U. S. 385, 396. See also Mullaney v. Anderson, 342 U. S. 415. Pp. 524-526.
(b) Even under the dubious assumption that a State may validly alleviate its unemployment problem by requiring private employers within the State to discriminate against nonresidents, Alaska Hire cannot be upbeld, for the record indicates that Alaska's unemployment was not attributable to the influx of nonresident jobseekers, but rather to the fact that a substantial number of Alaska's jobless residents were unemployed either because of lack of education and job training or because of geographical remoteness from job opportunities. Employment of nonresidents threatened to deny jobs to residents only to the extent that jobs for which untrained residents were being prepared might be filled
by nonresidents before the residents' training was completed. Moreover, even if a showing was made that nonresidents were "a peculiar source of the evil,” Toomer v. Witsell, supra, at 398, at which Alaska Hire was aimed, the statute would still be invalid, for its discrimination against nonresidents does not bear a substantial relationship to the “evil” that they are said to present, since statutory preference over nonresidents is given to all Alaskans, not just those who are unemployed. Pp. 526–528.
(c) Alaska's ownership of the oil and gas that are the subject matter of Alaska Hire constitutes insufficient justification for the statute's pervasive discrimination against nonresidents. Alaska Hire's reach includes employers who have no connection with the State's oil and gas, perform no work on state land, have no contractual relationship with the State, and receive no payment from the State; and the Act's coverage is not limited to activities connected with the extraction of Alaska's oil and gas. Pp. 528–531.
(d) The conclusion that Alaska Hire cannot withstand constitutional scrutiny is fortified by decisions under the Commerce Clause that circumscribe a State's ability to prefer its own citizens in the utilization of natural resources found within its borders but destined for interstate commerce. West v. Kansas Natural Gas, 221 U. S. 229; Pennsylvania v. West Virginia, 262 U. S. 553; and Foster Packing Co. v. Haydel, 278 U. S. 1. The oil and gas upon which Alaska hinges its discrimination are bound for out-of-state consumption and are of profound national importance while the breadth of the discrimination mandated by Alaska Hire transcends the degree of resident bias that Alaska's ownership of
the oil and gas can justifiably support. Pp. 531-534. 565 P. 2d 159, reversed.
BRENNAN, J., delivered the opinion for a unanimous Court.
Robert H. Wagstaff argued the cause for appellants. With him on the briefs was Lee S. Glass.
Ronald W. Lorensen, Assistant Attorney General of Alaska, argued the cause and filed a brief for appellees.*
*Briefs of amici curiae urging reversal were filed by Edwin Vieira, Jr., for the National Right to Work Legal Defense Foundation; and by Peabody Testing-Bill Miller X-Ray, Inc.
Ronald Y. Amemiya, Attorney General, and Lawrence D. Kumabe and Michael A. Lilly, Deputy Attorneys General, filed a brief for the State of Hawaii as amicus curiae urging affirmance.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
In 1972, professedly for the purpose of reducing unemployment in the State, the Alaska Legislature passed an Act entitled “Local Hire Under State Leases." Alaska Stat. Ann. $$ 38.40.010 to 38.40.090 (1977). The key provision of "Alaska Hire," as the Act has come to be known, is the requirement that "all oil and gas leases, easements or right-of-way permits for oil or gas pipeline purposes, unitization agreements, or any renegotiation of any of the preceding to which the state is a party" contain a provision "requiring the employment of qualified Alaska residents” in preference to nonresidents. Alaska Stat. Ann. § 38.40.030 (a) (1977). This employment preference is administered by providing persons meeting the statutory requirements for Alaskan residency with certificates of residence-"resident cards"—that can be presented to an employer covered by the Act as proof of residency. 8 Alaska Admin. Code 35.015 (1977). Appellants, individuals desirous of securing jobs covered by the Act but unable to qualify for the necessary resident cards, challenge Alaska Hire as violative of
1 The regulations implementing the Act further require that all nonresidents be laid off before any resident "working in the same trade or craft" is terminated: "[T]he nonresident may be retained only if no resident employee is qualified to fill the position." 8 Alaska Admin. Code 35.011 (1977). See also 8 Alaska Admin. Code 35.042 (4) (1977).
* The complete text of $38.40.030 (a) is as follows:
"In order to create, protect and preserve the right of Alaska residents to employment, the commissioner of natural resources shall incorporate into all oil and gas leases, easements or right-of-way permits for oil or gas pipeline purposes, unitization agreements, or any renegotiation of any of the preceding to which the state is a party, provisions requiring the lessee to comply with applicable laws and regulations with regard to the employment of Alaska residents, a provision requiring the employment of qualified Alaska residents, & provision prohibiting discrimination against Alaska residents and, when in the determination of the commissioner of natural resources it is practicable, a provision requiring compliance with the Alaska Plan, all in accordance with the provisions of this chapter."
both the Privileges and Immunities Clause of Art. IV, § 2, and the Equal Protection Clause of the Fourteenth Amendment.
Although enacted in 1972, Alaska Hire was not seriously enforced until 1975, when construction on the Trans-Alaska Pipeline 3 was reaching its peak. At that time, the State Department of Labor began issuing residency cards and limiting to resident cardholders the dispatchment to oil pipeline jobs. On March 1, 1976, in response to "numerous complaints alleging that persons who are not Alaska residents have been dispatched on pipeline jobs when qualified Alaska residents were available to fill the jobs," Executive Order #76-1, Alaska Dept. of Labor (Mar. 1, 1976) (emphasis in original), Edmund Orbeck, the Commissioner of Labor and one of the appellees here, issued a cease-and-desist order to all unions supplying pipeline workers * enjoining them "to respond to all open job calls by dispatching all qualified Alaska residents before any non-residents are dispatched.” Ibid. (emphasis in original). As a result, the appellants, all but one of whom had previously worked on the pipeline, were prevented from obtaining pipeline-related work. Consequently, on April 28, 1976, appellants filed a complaint in the Superior Court in Anchorage seeking declaratory and injunctive relief against enforcement of Alaska Hire.
At the time the suit was filed, the provision setting forth the qualifications for Alaskan residency for purposes of Alaska
3 See Trans Alaska Pipeline Rate Cases, 436 U. S. 631 (1978); TransAlaska Pipeline Authorization Act, 87 Stat. 584, 43 U. S. C. & 1651 et seq. (1970 ed., Supp. V).
* App. 13-14. The vast majority of pipeline jobs were filled through union dispatchment. Deposition of David Finrow, Deputy Director of the Wage and Hour Division of the Alaska Dept. of Labor, in No. 3025 (Sup. Ct. Alaska), pp. 18-19, 28, 48.