dissenting:
This is an appeal from a district court judgment granting an injunction against the enforcement of a unique District of Columbia statute known as the District of Columbia Displaced Workers Protection Act of 1994, 41 D.C.Reg. 1011 (to be codified at D.C.Code ANN. §§ 36-1501 to 1504) (“DWPA”). The DWPA requires service contractors who successfully bid on a contract previously held by a competitor to hire the previous contractor’s work staff. The contractor may not then terminate any of those employees for a period of ninety (90) days except for “cause.” Id. at § 3(e). At the end of the 90 days, the DWPA requires the contractor to perform a written evaluation of the “retained” employees and offer them continued employment if their performance has been “satisfactory.” Id. at § 3(f). Plaintiffs, appellees here, sought injunction both on the grounds that the statute was preempted by the National Labor Relations Act (“NLRA”), and that the DWPA was violative of the contracts clause of the United States Constitution. The district court did not reach the constitutional grounds, but enjoined the enforcement of the Act on preemption grounds. Because I *819agree with the district court on the preemption ground, I would affirm its judgment. Like the district court, I would not reach the constitutional question.
ANALYSIS
A. The “Supervisors” Argument
The district court held that a provision of the DWPA requiring contractors to retain their predecessors’ supervisors in supervisory positions is in conflict with “federal labor policy as enunciated in § 14(a) of the NLRA.” Washington Service Contractors Coalition v. District of Columbia, 858 F.Supp. 1219, 1226 (D.D.C.1994). Based on that holding, the court found “that the DWPA’s application to supervisors must be enjoined.” Id. at 1227. The District of Columbia did not appeal from that holding. Inexplicably, appellees claim that the District’s failure to appeal this issue renders the entire appeal moot.
This argument is meritless. On totally separate grounds, the district court enjoined the enforcement of the balance of the Act in all other applications. The District of Columbia did appeal from that holding. Thus, the only question mooted by the District’s failure to appeal from the first holding is the question of supervisor coverage. That question is not before us. Therefore, I do not join the majority’s discussion of it. I do join the majority’s conclusion that the failure to appeal from the 14(a) holding does not moot the rest of this appeal.
B. The General Preemption Argument
In addition to its 14(a) holding on which the district court based its application of the DWPA to supervisors, the district court also held, in a separately delineated section of its opinion, that the entire DWPA is preempted by the NLRA on grounds related to the doctrine of successorship under the NLRA, and on that basis and that basis alone, the district court enjoined the enforcement of the DWPA in all eases. Contractors, 858 F.Supp. at 1229-30. It is from this holding that the District of Columbia appeals and it is this holding that I would affirm.
In my view, the district court’s opinion reflects the proper preemption analysis under federal labor law. In Motor Coach Employees v. Lockridge, 403 U.S. 274, 297-98, 91 S.Ct. 1909, 1923, 29 L.Ed.2d 473 (1971), the Supreme Court held that where preemption under the NLRA is otherwise appropriate, the only relevant exception exists where the arguably preempted “rule of law ... is so structured and administered that, in virtually all instances, it is safe to presume that judicial supervision will not disserve the interest promoted by the federal labor statutes.” I submit that this Supreme Court declaration governs this case.
The basic approach to preemption questions under the NLRA is enunciated by the Supreme Court in San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), as further elucidated in Motor Coach Employees v. Lockridge, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971), and in International Ass’n of Machinists v. Wisconsin Employment Relations Comm’n, 427 U.S. 132, 96 S.Ct. 2548, 49 L.Ed.2d 396 (1976). The Lockridge Court, in explaining Garmon and the resulting line of labor preemption cases, noted, as the majority here suggests, that “we cannot declare preempted all local regulation that touches or concerns in any way the complex interrelationships between employees, employers, and unions;” but at the same time declared that federal courts cannot “proceed on a case-by-case basis to determine whether each particular final judicial pronouncement does, or might reasonably be thought to, conflict in some relevant manner with federal labor policy.” 403 U.S. at 289, 91 S.Ct. at 1919. The majority’s refusal to find preemption in the present context based upon its determination that the NLRB could apply its successorship doctrine to DWPA hires in a fashion that would avoid conflict seems to me to reverse the Supreme Court’s Garmon/Lockridge analysis and undertake the case-by-case approach rejected by the Supreme Court in that decision.
The proper question under Garmon is not whether some applications of the local law directly violate the NLRA, but rather whether “it is clear or may fairly be assumed that *820the activities which a state [or in this ease the District of Columbia] purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8..." 359 U.S. at 244, 79 S.Ct. at 779. If the answer is yes, then “due regard for the federal enactment requires that state jurisdiction must yield.” Id.
As the district court recognized, the Supreme Court later expanded NLRA preemption from the Gannon foundation to a second category in International Ass’n of Machinists v. Wisconsin Employment Relations Comm’n, 427 U.S. 132, 96 S.Ct. 2548, 49 L.Ed.2d 396 (1976). The Machinists Court proceeded from, recognition of Teamsters Union v. Morton, 377 U.S. 252, 84 S.Ct. 1253, 12 L.Ed.2d 280 (1964), that even where conduct is “neither protected nor prohibited [by § 7 or § 8], it is still necessary to determine whether ... ‘Congress occupied this field and closed it to state regulation.’” Id. at 258, 84 S.Ct. at 1257-58 (quoting Automobile Workers v. O’Brien, 339 U.S. 454, 457, 70 S.Ct. 781, 783, 94 L.Ed. 978). This “occupation of the field” referred not to the entire field of labor law, but rather to the particular area of activity within the field of labor law about which the state government is purporting to enforce regulations. The Machinists Court noted that- even before Morton, in Garmon itself, the Court had “expressly recognized that ‘the Board may decide that an activity is neither protected nor prohibited, and thereby raise the question whether such activity may be regulated by the states.’” Machinists, 427 U.S. at 144-45, 96 S.Ct. at 2555 (quoting Garmon, 359 U.S. at 245, 79 S.Ct. at 780). From this existing precedent, the Machinists Court derived the principle, previously suggested in Garmon and Morton, that state regulation is preempted not only by the specifics of §§ 7 and 8, but also where conduct has been “left by Congress to the free play of economic forces_” Machinists, 427 U.S. at 147, 96 S.Ct. at 2556. The district court held, in my view correctly, that the DWPA intrudes upon this latter sort of preempted area.
In John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 549, 84 S.Ct. 909, 914, 11 L.Ed.2d 898 (1964), the Supreme Court expressly recognized “the rightful prerogative of owners independently to rearrange their businesses_” In National Labor Relations Board v. Burns International Security Services, 406 U.S. 272, 92 S.Ct. 1571, 32 L.Ed.2d 61 (1972), the Court recognized that there had never been a holding that the NLRA “requires that an employer who submits the winning bid for a service contract ... [is] obligated to hire all of the employees of the predecessor_” Id. at 280 n. 5, 92 S.Ct. at 1578 n. 5. And in Howard Johnson Co., Inc. v. Hotel Employees, 417 U.S. 249, 94 S.Ct. 2236, 41 L.Ed.2d 46 (1974), the Court cited Bums as establishing that a “successor” employer “ha[s] the right not to hire any of the former [predecessor] employees, if it so desire[s].” Id. at 262, 94 S.Ct. at 2243.
Where an employer purchasing the assets of another business chooses to hire his predecessor’s employees, federal law does erect a successorship obligation of bargaining with specific and fairly complex rules. See generally John Wiley & Sons, supra, and Howard Johnson, supra. Where the successorship doctrine does not apply, it seems apparent to me that under the NLRA as interpreted by the Supreme Court, Congress intentionally left the area of successorship obligations to be controlled by the free play of market forces; therefore, Machinists preemption applies; therefore, I would affirm.