Collective bargaining agreements and chapter 9 bankruptcy

American Bankruptcy Law Journal

Volumn 81, Issue 3, 2007, Pages 295-340

  Dahl, Ryan Preston ^a  

^a UNIVERSITY OF CHICAGO   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 36348948551     PISSN: 00279048     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (323)

1. See generally In re UAL Corp, 468 F.3d 456 (7th Cir. 2006); In re UAL Corp, 443 F.3d 565 (7th Cir. 2006); In re UAL Corp, 408 F.3d 847 (7th Cir. 2005) (discussing United Airlines' efforts to reject its CBAs).
2. In re Delta Air Lines, Inc., 359 B.R. 468 (Bankr. S.D.N.Y. 2006); In re Delta Air Lines, Inc., 351 B.R. 67 (Bankr. S.D.N.Y. 2006); In re Delta Air Lines, Inc., 342 B.R. 685 (Bankr. S.D.N.Y. 2006).
3. In re Northwest Airlines Corp, 346 B.R. 307 (Bankr. S.D.N.Y. 2006).
4. Official Comm. of Unsecured Creditors v. Tower Auto, Inc. (In re Tower Auto, Inc.), 241 F.R.D. 162 (S.D.N.Y. 2006) (discussing settlement agreement between debtor and unions negotiated in lieu of rejection).
5. Motion for Order Under 11 U.S.C. § 1113(c) Authorizing Rejection of Collective Bargaining Agreements and Under 11 U.S.C. § 1114(g) Authorising Modification of Collective Bargaining Agreements, In re Delphi Corp, No. . 05-44481 (Bankr. S.D.N.Y. Mar. 31, 2006), available at http://www.delphidocket.com/Docket/SearchResults.asp?SH=1; Jeremy W. Peters, U.A.W. Votes to Authorize Strike at Delphi, N.Y. TIMES, May 17, 2006, at C2 (discussing United Auto Workers' decision to strike if Delphi sought rejection of its CBAs).
6. Dana's motion to reject its CBAs was filed under seal. See In re Dana Corp, No. 06-10354 (Bankr. S.D.N.Y. Jan. 31, 2007), available at http://docs.bmccorp.net/dana/docs/nysb_1-06-bk-10354_4672_0.pdf.
7. 11 U.S.C. §§ 365, 1113 (2006).
8. See generally Terry M. Moe, Political Control and the Power of the Agent, 22 J.L. & ECON. & ORG. 1, 5 (2006) ("It is the public sector unions, not the private sector unions, that are now driving the American labor movement." (internal citations omitted)); Keith N. Hylton, Law and the Future of Organized Labor in America, 49 WAYNE L. REV. 685 (2003).
9. See, e.g., 1 STATE OF ILLINOIS, OFFICE OF THE AUDITOR GENERAL, Executive Summary of Performance Audit, Mass Transit Agencies of Illinois: RTA, CTA, Metra and Pace 37 (2007) (projecting actuarial liabilities for Chicago Transit Authority pension plan of approximately $4.0BN by 2009); Mary Williams Walsh, N.J. Pension Fund Endangered by Diverted Billions, N.Y. TIMES, Apr. 4, 2007, at A1.
10. See Edmund L. Andrews, Few Expect Panacea in a Rate Cut By the Fed, N.Y. TIMES, Sep. 3, 2007, at C1 (questioning the Federal Reserve Bank's ability to avoid a near-term recession via rate cuts).
11. The Supreme Court has recently addressed one particularly novel way to stave off municipal collapse. See Kelo v. City of New London, 545 U.S. 469 (2005).
12. In re City of Bridgeport, 129 B.R. 332, 339 (Bankr. D. Conn. 1991) ("Bridgeport claims that it is caught in an economic bind caused, on the one hand, by unaffordable employee union contracts and inadequate state aid and, on the other, by the practical reality that it can neither cut essential services nor raise taxes to pay for them."); Barry Winograd, San José Revisited: A Proposal for Negotiated Modification of Public Sector Bargaining Agreements Rejected Under Chapter 9 of the Bankruptcy Code, 37 HASTINGS L.J. 231 (1985) (discussing the San José Unified School District's bankruptcy filing caused by its inability to obtain cost reductions from its teachers' union).
13. See In re County of Orange, 179 B.R. 177 (Bankr. C.D. Cal. 1995) (addressing Orange County's attempt to reject its MOUs in its Chapter 9 filing). County of Orange remains the lone published opinion addressing this issue.
14. Vijay Kapoor, Public Sector Labor Relations: Why it Should Matter to the Public and to Academia, 5 U. PA. J. LAB. & EMP. L. 401, 401 (2003).
15. See Michael W. McConnell & Randal C. Picker, When Cities Go Broke: A Conceptual Introduction to Municipal Bankruptcy, 60 U. CHI. L. REV. 425, 467-68 (1993).
16. See Rachel E. Schwanz, This Way to Egress: Should Bridgeport's Chapter 9 Filing Have Been Dis missed', 66 AM. BANKR. L.J. 103, 120-21 (1992); W. Richard Fossey & John M. Sedor, In re Copper River School District: Collective Bargaining and Chapter 9 Municipal Bankruptcy, 6 ALASKA L. REV. 133 (1989); Winograd, supra note 12, at 231; David A. Roby, Jr., Note, Municipal Bankruptcy: Will Labor Be Forced to Take the Proverbial Haircut?, 26 GA. L. REV. 959 (1992); Note, Executory Labor Contracts and Municipal Bankruptcy, 85 YALE L.J. 957, 968 (1976) (hereinafter Executory Labor Contracts).
17. 11 U.S.C. §§ 901-46 (2006).
18. 11 U.S.C. § 1113 (2006).
19. 465 U.S. 513 (1984).
20. 11 U.S.C. § 365(a); NLRB v. Bildisco & Bildisco 465 U.S. 513, 527 (1984) (authorizing debtor to reject CBAs as executory contracts under § 365).
21. See 11 U.S.C. § 903.
22. 179 B.R. 177 (1995).
23. Id. at 183-84; see also Winograd, supra note 12, at 332 ("When a public employer is faced with collectively bargained labor costs in the context of severe budgetary shortfalls, the appropriate course is not unilateral contract modification under a bankruptcy shield, but renegotiation in accordance with state labor law.").
24. See THOMAS H. JACKSON, THE LOGIC AND LIMITS OF BANKRUPTCY LAW 7-19 (Harvard Univ. Press 1986).
25. Thomas H. Jackson, Bankruptcy, Non-Bankruptcy Entitlements, and the Creditors' Bargain, 91 YALE L.J. 857, 893-95 (1981) ("Reorganization proceedings provide nothing more than a method by which the sale of an enterprise as a going concern may be made to the creditors themselves").
26. See U.S. CONST. amend. X; 11 U.S.C. §§ 903-04; City of East St. Louis v. United States ex rel . Zebley, 110 U.S. 321, 324 (1884).
27. See United States v. Bekins, 304 U.S. 27 (1938).
28. See 11 U.S.C. § 109(c)(2) (2006) (requiring state consent for municipal bankruptcy filing).
29. Ch. 372 §§ 1-19, 49 Stat. 449 (1935) (codified as amended at 29 U.S.C. §§ 151-69).
30. NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).
31. Duffy Tool & Stamping, L.L.C. v. NLRB, 233 F.3d 995, 996-97 (7th Cir. 2000) (discussing the general goals of federal labor law).
32. 29 U.S.C. § 152(2).
33. Karl E. Klare, Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness, 1937-1941, 62 MINN. L. REV. 265, 287 & n.68 (1978).
34. See, e.g., Lochner v. New York, 198 U.S. 45 (1905); see generally William E. Forbath, The Shaping of the American Labor Movement, 102 HARV. L. REV. 1109 (1989).
35. Forbath, supra note 34, at 1148-65; see, e.g., In re Debs, 158 U.S. 564 (1895).
36. 167 Mass. 92 (1896).
37. Id. at 108-09 (Holmes, J., dissenting) ("[One should] abandon the idea that an organized refusal by workmen of social intercourse with a man who shall enter their antagonist's employ is unlawful, if ... made for the sole object of prevailing, if possible, in a contest with their employer about the rate of wages.").
38. Id. at 97.
39. 29 U.S.C. § 157 (2006).
40. See supra notes 36-38 and accompanying text.
41. Harry Shulman, Reason, Contract, and Law in Labor Relations, 68 HARV. L. REV. 999,1000 (1955).
42. 29 U.S.C. § 158(a)(5).
43. See 29 U.S.C. §§ 153-56.
44. Klare, supra note 33, at 288.
45. Id. at 293-310.
46. 301 U.S. 1 (1937)
47. Id. at 45.
48. Klare, supra note 33, at 302-03.
49. Ch. 120, 61 Stat. 136 (1947) (amending various provisions of 29 U.S.C.).
50. 29 U.S.C. § 158(d) (2006) (emphasis added).
51. H.R. REP. No. 80-510 (1947), reprinted in 1947 U.S.C.C.A.N. 1135, 1140-41; see also NLRB v. Am. Nat'l Ins. Co., 343 U.S. 395, 408-09 (1952) ("Congress provided expressly that the Board should not pass upon the desirability of the substantive terms of labor agreements.").
52. Duffy Tool & Stamping, L.L.C. v. NLRB, 233 F.3d 995, 996 (7th Cir. 2000). But see NLRB v. A-1 King Size Sandwiches, Inc., 732 F.2d 872, 877-78 (11th Cir. 1984) (holding that employer violated its duty to collectively bargain where it refused to budge from its initial bargaining position for over eighteen months).
53. NLRB v. Ins. Agents' Int'l Union, 361 U.S. 477, 489 (I960) ("The presence of economic weapons in reserve, and their actual exercise on occasion by the parties, is part and parcel of the system that the Wagner and Taft-Hartley Acts have recognized.").
54. Am. Ship Bldg. Co. v. NLRB, 380 U.S. 300, 309 (1965) ("The lockout may well dissuade employees from adhering to the position which they initially adopted in the bargaining, but the right to bargain collectively does not entail any 'right' to insist on one's position free from economic disadvantage.") .
55. Duffy Tool & Stamping, 233 F.3d at 996; accord AFTRA v. NLRB, 395 F.2d 622, 629 (D.C. Cir. 1968) (holding that post-impasse modifications are "legitimate economic weapons from the bargainers' arsenal"); Telescope Casual Furniture, Inc., 326 N.L.R.B. 588, 591 (1998) (Gould, Ch., concurring) ("[T]ough and sometimes distasteful tactics engaged in by employers and unions throughout the collective-bargaining process are frequently not unlawful under the National Labor Relations Act."); see Brown v. Pro Football, Inc., 518 U.S. 231, 238-39 (1996) (discussing conditions under which employer may unilaterally impose terms post-impasse).
56. First Nat'l Maint. Corp. v. NLRB, 452 U.S. 666, 674 (1981) ("[B]oth employer and union may bargain to impasse over these matters and use the economic weapons at their disposal to attempt to secure their respective aims.").
57. Klare, supra note 33, at 302-03.
58. See Wisc. Dep't of Indus., Labor and Human Relations v. Gould, 475 U.S. 282, 286 (1986) ("It is by now a commonplace that in passing the NLRA Congress largely displaced state regulation of industrial relations").
59. 29 U.S.C. § 152(2) (2006) ("The term employer' [under the NLRA] . . . shall not include the United States or any wholly owned Government corporation, or any Federal Reserve Bank, or any State or political subdivision thereof . . . .").
60. Peters v. Health and Hosps. Governing Comm'n, 430 N.E.2d 1128, 1130 (III. 1981) ("[W]e find no authority in statutory or case law which supports the position that a public body can be ordered to negotiate such an agreement. Indeed, under the National Labor Relations Act, a State or local governmental entity has the unequivocal right to refuse to enter into a collective bargaining agreement with its employees.").
61. Meyers-Milias-Brown Act, CAL. GOV'T CODE §§ 3500-10 (1995).
62. CAL. LAB. CODE § 1962 (2003) ("[Firefighters] shall not have the right to strike, or to recognize a picket line of a labor organization while in the course of the performance of their official duties"); County Sanitation Dist. No. 2 v. L.A. County Employees' Ass'n., 699 P.2d 835, 849 (Cal. 1985) ("[T]he common law prohibition against public sector strikes should not be recognized in this state. Consequently, strikes by public sector employees in this state as such are neither illegal nor tortious under California common law").
63. Branch v. City of Myrtle Beach, 532 S.E.2d 289, 292 (S.C. 2000) ("In light of the traditional construction of labor relations statutes, we believe that by not having a definition including public employment, the legislature's intent was not to cover public employees.").
64. 43 PA. STAT. ANN. § 1101.1003 (2006).
65. Id. § 1101.1001.
66. N.Y. CIV. SERV. LAW § 202 (1999).
67. Id. § 203.
68. Id. § 210.
69. See Steven Greenhouse & Sewell Chan, Transit Union Calls for Strike, N.Y. TIMES., Dec. 20, 2005, at A1 (discussing transit workers' union determination to strike notwithstanding statutory prohibition).
70. Bernard D. Meltzer & Cass R. Sunstein, Public Employees Strikes, Executive Discretion, and the Air Traffic Controllers, 50 U. CHI. L. REV. 731, 733-34 (1983).
71. Id. at 739.
72. Id.
73. LEO TROY, THE NEW UNIONISM IN THE NEW SOCIETY 31 (Geo. Mason Univ. Press 1994).
74. Id.
75. Meltzer & Sunstein, supra note 70, at 739. But see Clyde Summers, Bargaining in the Government's Business: Principles and Politics, 18 U. TOL. L. REV. 265, 267-68 (1987) (arguing that the threat of public sector strikes may increase the efficiency of public sector employment).
76. Clyde W. Summers, Public Sector Bargaining: Problems of Governmental Derisionmaking, 44 U. CIN. L. REV. 669, 670 (1975).
77. Summers, supra note 75, at 267-68; see also R. Theodore Clark, Jr., Politics and Public Employee Unionism: Some Recommendations for an Emerging Problem, 44 U. CIN. L. REV. 680, 681 (1975).
78. Meltzer & Sunstein, supra note 70, at 740; see also Summers, supra note 75, at 267-68; Clark, supra note 77, at 684 ("The political aspects of public sector collective bargaining enable public sector unions to, in effect, sit on both sides of the bargaining table.").
79. Cf. Duffy Tool & Stamping, L.L.C. v. NLRB, 233 F.3d 995, 996 (7th Cir. 2000) (permitting private sector employer to unilaterally impose contractual modifications post-impasse).
80. N.Y. CIV. SERV. LAW § 209-a(1)(e) (1999) ("It shall be an improper practice for a public employer or its agents deliberately ... (e) to refuse to continue all terms of an expired agreement until a new agreement is negotiated, unless the employee organization which is a party to such agreement has, during such negotiations or prior to such resolution of such negotiations, engaged in [a strike] ...."); CONN. GEN. STAT. § 5-278a (1998).
81. Sonoma County Org. of Pub. Employees v. County of Sonoma, 591 P.2d 1 (Cal. 1979) (identifying factors to be used when determining if a municipal employer may unilaterally modify its collective bargaining obligations).
82. See MO. ANN. STAT. § 105.520 (1997), construed in Murray v. City of Jennings, 639 S.W.2d 220, 224 (Mo. Ct. App. 1982).
83. WASH. REV. CODE § 41.56.123(1) (2006). But see Maple Valley Prof. Fire Fighters Local 3062 v. King County Fire Prot. Dist. No. 43, 145 P.3d 1247 (Wash. Ct. App. 2006) (holding that arbitration clause in MOU of "uniformed" employees does not survive expiration).
84. Wasco County v. Am. Fed. of State, County and Mun. Employees, Local 2752, 613 P.2d 1067 (Or. Ct. App. 1980) (affirming decision of state Employee Relations Board to treat post-impasse unilateral modifications as per se unfair labor practice). But see Medford Firefighters Ass'n, Local 1431 v. City of Medford, 605 P.2d 289, 292 (Or. Ct. App. 1979) (holding municipal employer does not commit unfair labor practice by enacting ordinance excluding certain supervisory firefighters from collective bargaining unit after expiration).
85. See Cent. Dauphin Educ. Assoc. v. Cent. Dauphin Sch. Dist., 792 A.2d 691, 699 (Pa. 2001) (discussing employer's rights in the event of impasse).
86. Newton Branch of Mass. Police Assoc. v. City of Newton, 484 N.E.2d 1326, 1329 (Mass. 1985); Mass. Org. of State Eng'rs & Scientists v. Labor Relations Comm'n, 452 N.E.2d 1117, 1122 (Mass. 1983) ("[Unilateral action during the existence of a legitimate impasse is not a per se violation of the duty to bargain in good faith . . . .").
87. See infra notes 95-97.
88. Hylton, supra note 8, at 687.
89. TROY, supra note 73, at 31; Hylton, supra note 8, at 690.
90. See HUGH O'NEIL, UNIONIZATION OF MUNICIPAL EMPLOYEES 12-13 (Robert H. Connery & William V. Farr, eds. 1971).
91. Sewell Chan & Steven Greenhouse, M.T.A. Returns to Harder Line in Labor Talks, N.Y. TIMES, Jan. 26, 2006, at Al.
92. 29 U.S.C. § 152(2) (2006).
93. H.R. REP. NO. 1147, at 10 (1935), reprinted in 2 NLRB LEGISLATIVE HISTORY OF THE NATIONAL LABOR RELATIONS ACT, 1945, at 3046, 3057 (1935).
94. U.S. CONST, art. I, § 8, cl. 3.
95. See NLRB v. Natural Gas Util. Dist. of Hawkins County, 402 U.S. 600, 604 (1971) ("The legislative history does reveal, however, that Congress enacted the [§ 152(2)] exemption to except from Board cognizance the labor relations of federal, state, and municipal governments, since governmental employees did not usually enjoy the right to strike."); see generally RICHARD C. KEARNEY, LABOR RELATIONS IN THE PUBLIC SECTOR 39-43 (Marcel Dekker 1984).
96. KEARNEY, supra note 95, at 39-41.
97. Id. at 43.
98. Branch, 532 S.E.2d at 292.
99. City of Boerne v. Flores, 521 U.S. 507, 519 (1997) (noting that Congress does not hold the power "to determine what constitutes a constitutional violation"); Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
100. 304 U.S. 144, 153 n.4 (1938) (announcing the Court's decision to subject to economic regulation to more relaxed standards of Constitutional review).
101. 300 U.S. 379 (1937).
102. 469 U.S. 528 (1985), overruling Nat'1 League of Cities v. Usery, 426 U.S. 833 (1976); see generally TROY, supra note 73, app. A (discussing background and holding of Garcia).
103. 426 U.S. 833 (1976). National League of Cities had endorsed a strongly deferential approach to the states' right to define the terms and conditions of employment: "One undoubted attribute of state sovereignty is the States' power to determine the wages which shall be paid to those whom they employ in order to carry out their governmental functions, what hours those persons will work, and what compensation will be provided where these employees may be called upon to work overtime." Id. at 844. Thus, National League of Cities helped terminate a movement towards national public labor legislation that had gained momentum during the mid-1970s. See KEARNEY, supra note 95, at 49-53.
104. See United Haulers Assoc. v. Oneida-Herkimer Solid Waste Mgmt, 127 S. Ct. 1786, 1810 (2007) (Alito, J., dissenting) (discussing rejection of National League of Cities as "analytically unsound").
105. Garcia, 469 U.S. at 545-47.
106. Id. at 554.
107. Id. at 555. It should be noted that receipt of federal funds is not a condition precedent to federal regulation under Garcia. Id. at 555 n.21.
108. Id. at 566 n.11 (1985) (Powell, J., dissenting) ("[I]t is unlikely that special interest groups will fail to accept the Court's open invitation to urge Congress to extend [the NLRA] and other statutes to apply to the States and their local subdivisions."); TROY, supra note 73, at 189 ("Garcia has opened the door for federal legislation to nationalize labor relations."); Benjamin Aaron, Unfair Labor Practices and the Right to Strike in the Public Sector: Has the National Labor Relations Act Been a Good Model?, 38 STAN. L. REV. 1097, 1121 (1986) ("Whatever barriers National League of Cities may have erected against a federal preemptive law uniformly regulating labor relations between the states and their employees have thus been removed [by Garcia] . . . .").
109. See United States v. Morrision, 529 U.S. 598 (2000) (Souter, J., dissenting) ("[T]He Federal Government, when acting within a delegated power, may override countervailing state interests, whether these be described as governmental or proprietary in character." (citation and internal quotation marks omitted)); cf. Prudential Ins. Co. v. Benjamin, 328 U.S. 408, 434 (1946) ("Congress may keep the way open, confine it broadly or closely, or close it entirely").
110. TROY, supra note 73, at app. B.
111. H .R. 2204,101st Cong. (1989) (proposing federal laws to govern labor disputes arising from MOUs between fire fighters and employers).
112. H.R. 2205, 101st Cong. (1989) (proposing federal laws to govern labor disputes arising from MOUs between law enforcement officers and employers).
113. H.R. 2204 § 4(2).
114. I14 Id. § 5.
115. Gilbert v. Homar, 520 U.S. 924, 928-29 (1997) ("[P]ublic employees who can be discharged only for cause have a constitutionally protected property interest in their tenure and cannot be fired without due process . . . ."); Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 538-39 (1985); Bd. of Regents of State Colls, v. Roth, 408 U.S. 564, 577 (1972); Perry v. Sinderman, 408 U.S. 593, 596 (1972).
116. See, e.g., Ciambriello v. County of Nassau, 292 F.3d 307, 314 (2d Cir. 2002) ("[A] collective bargaining agreement may give rise to a property interest in continued employment."); Chaney v. Suburban Bus Div. of Reg'l Transp. Auth., 52 F.3d 623, 629 (7th Cir. 1995) ("[D]ue process requires pre-termination notice and an opportunity to respond even where a CBA provides for post-termination procedures that fully compensate wrongfully terminated employees.").
117. Parrett v. City of Connersville, 737 F.2d 690, 696 (7th Cir. 1984), cert, denied, 469 U.S. 1145 (1985).
118. Roth, 408 U.S. at 577.
119. Ciambriello, 292 F.3d at 319.
120. 424 U.S. 319 (1976).
121. Id. at 335; accord, Gilbert, 520 U.S. at 931-32.
122. See Parrett, 737 F.2d at 696.
123. N.Y. Typographical Union No. 6 v. Maxwell Newspapers, Inc. (In re Maxwell Newspapers, Inc.), 981 F.2d 85, 89 (2d Cir. 1992).
124. See Christopher D. Cameron, How 'Necessary' Became the Mother of Rejection: An Empirical Look at the Fate of Collective Bargaining Agreements on the Tenth Anniversary of Bankruptcy Code Section 1113, 34 SANTA CLARA L. REV. 848, 873 (1994) ("[T]he statute stirs an unprecedented admixture of substantive as well as procedural elements into the bargaining process."); cf. supra Section II.B (discussing procedural paradigm of American labor law). But see DANIEL L. KEATING, BANKRUPTCY AND EMPLOYMENT LAW § 2.6 (1995) (arguing that "§ 1113 more or less approximates the rules under nonbankruptcy law").
125. See 11 U.S.C. § 901 (2006); In re County of Orange, 179 B.R. 177, 182-83 (Bankr. C.D. Cal. 1995).
126. 29 U.S.C. § 158 (2006).
127. KEATING, supra note 124, § 2.2.1.
128. Id.
129. NLRB v. Bildisco & Bildisco, 465 U.S. 513, 525-26 (1984). The Court noted that a "somewhat stricter standard" should be used to govern the rejection of CBAs. Id. at 524 (citing In re Brada-Miller Freight Sys, Inc., 702 F.2d 890 (llth Cir. 1983); In re Bildisco, 682 F.2d 72 (3d Cir. 1982); Local Joint Executive Bd. v. Hotel Circle, 613 F.2d 210 (9th Cir. 1980); Shopmen's Local Union No. 455 v. Kevin Steel Prods., Inc., 519 F.2d 698 (2d Cir. 1975)).
130. Id. at 533-34.
131. Interestingly, none of the parties to Bildisco raised this point, which was argued only by the United Mine Workers of America as amicus. See id. at 524 n.6.
132. See supra Section II.A.
133. See, e.g., Michael D. Sousa, Reconciling the Otherwise Irreconcilable: the Rejection of Collective Bargaining Agreements Under Section 1113 of the Bankruptcy Code, 18 LAB. LAW. 453, 458 (2003) ("[A] collective bargaining agreement more closely resembles a generalized code of industrial relations than it does a single voluntary exchange." (quoting Jeffrey D. Berman, Rejection of Collective Bargaining Agreements under the Bankruptcy Amendments of 1984, 71 VA. L. REV. 983, 985 (1985))); Klare, supra note 33, at 294 ("[T]he collective bargaining agreement is a special kind of contract, with peculiar legal incidents . . . ."); Shulman, supra note 41, at 1004.
134. United Steelworkers of Am. v. Warrior and Gulf Navigation Co., 363 U.S. 574, 579 (1960) ("The collective agreement covers the whole employment relationship. It calls into being a new common law-the common law of a particular industry or of a particular plant.").
135. See generally DOUGLAS G. BAIRD, THE ELEMENTS OF BANKRUPTCY 126-52 (4th ed. 2006) (discussing executory contracts generally and their treatment under the Bankruptcy Code).
136. Id. at 126-27.
137. 11 U.S.C. §§ 365(g), 502(g); BAIRD, supra note 135, at 127.
138. Bildisco, 465 U.S. at 533.
139. Id. at 528.
140. BAIRD, supra note 135, at 140.
141. See Bildisco, 465 U.S. at 533.
142. Id. at 525-26 (citing, inter alia, Shopmen's Local Union No. 455 v. Kevin Steel Prods., Inc., 519 F.2d 698 (2d Cir. 1975)).
143. Bildisco, 465 U.S. at 526.
144. Id. at 527.
145. See, e.g., First Nat'l Maintenance Corp. v. NLRB, 452 U.S. 666, 675 (1981) ("[B]oth employer and union may bargain to impasse over these matters and use the economic weapons at their disposal to attempt to secure their respective aims.").
146. See In re Horsehead Indus., Inc., 300 B.R. 573, 587 (Bankr. S.D.N.Y. 2003) ("[I]t makes little difference if the Debtors are forced out of business because of a union strike or the continuing obligation to pay union benefits to avoid one.").
147. 11 U.S.C. § 305 (2006).
148. 11 U.S.C. § 1112(b) (2006).
149. Pub. L. 98-353, Title III, § 541(a) (July 10, 1984) (codified at 11 U.S.C. § 1113 (2006)).
150. KEATING, supra note 124, § 2.1.
151. See generally Bruce H. Charnov, The Uses and Misuses of the Legislative History of Section 1113 of the Bankruptcy Code, 40 SYRACUSE L. REV. 925 (1989).
152. 7 COLLIER ON BANKRUPTCY ¶ 1113.LH (Alan N. Resnick et al. eds., 15th ed. rev. 2006).
153. Id. 154 Sheet Metal Workers'Int'l Assoc. Local 9 v. Mile Hi Metal Sys., Inc. (In re Mile Hi Metal Sys., Inc.), 899 F.2d 887, 890 (10th Cir. 1990).
154. See Charnov, supra note 151, at 969. The limited legislative history of § 1113 has provided at least one court with a foundation for its own construction of § 1113-however questionable such an approach might be. Wheeling Pittsburgh Steel Corp. v. United Steelworkers of Am., 791 F.2d 1074, 1088 (3d Cir. 1986).
155. United Food & Commercial Workers Union, Local 211 v. Family Snacks, Inc. (In re Family Snacks, Inc.), 257 B.R. 884, 891 (8th Cir. B.A.P. 2001); accord In re Am. Provision Co., 44 B.R. 907, 909 (Bankr. D. Minn.1984) ("[Section] 1113 is not a masterpiece of draftsmanship.").
156. Joseph L. Cosetti & Stanley A. Kirshenbaum, Rejecting Collective Bargaining Agreements Under Section 1113 of the Bankruptcy Code-Judicial Precision or Economic Reality?, 26 DUQ. L. REV. 181, 183 (1987). But see Marc S. Kirschner et al., Tossing the Coin Under Section 1113: Heads or Tails, the Union Wins, 23 SETON HALL L. REV. 1516 (1993) ("Section 1113 provides strict procedural and substantive requirements that a debtor must meet to reject a collective bargaining agreement.").
157. 11 U.S.C. § 1113(b)-(d) (2006).
158. Id. § 1113(a).
159. Cf. 11 U.S.C. §§ 365(g), 502(g) (treating the rejection of an executory contract as a breach of contract giving rise to a claim for damages against the debtor's estate).
160. In re Blue Diamond Coal Co., 131 B.R. 633 (Bankr. E.D. Tenn. 1991); see also United Food and Commercial Workers Union, Local 328 v. Almac's Inc., 90 F.3d 1 (1st Cir. 1996) (holding that interim modifications under § 1113(e) do not give rise to claims). But see Michael St. Patrick Baxter, Is There a Claim for Damages From the Rejection of a Collective Bargaining Agreement Under Section 1113 of the Bankruptcy Code?, 12 BANKR. DEV. J. 703 (1996) (attacking Blue Diamond). See generally, KEATING, supra note 124, § 2.5.2.
161. See New York Typographical Union No. 6 v. Maxwell Newspapers, Inc. (In re Maxwell Newspapers, Inc.), 981 F.2d 85, 91-92 (2d Cir. 1992) (conditioning rejection under § 1113 on debtor's obligation to extend previous comprise offer to union) (discussed in Kirschner et al., supra note 157, at 1532-33); accord In re Northwest Airlines Corp., 346 B.R. 307, 332 (Bankr. S.D.N.Y. 2006).
162. See 11 U.S.C. § 901.
163. See Pub. L. No. 100-597, 102 Stat. 3028 (1988) (amending 11 U.S.C. to provide certain protections for holders and issuers of industrial revenue bonds issued by municipal debtors), reprinted in 15 FEDERAL BANKRUPTCY LAW: A LEGISLATIVE HISTORY OF THE BANKRUPTCY REFORM ACT OF 1994, Doc. No. 278 (Bernard D. Reams, Jr. & William H. Manz, eds, 1998) (hereinafter Reams & Manz).
164. H.R. 3949, 102d Cong. § 2(c) (1991), reprinted in 4 Reams & Manz, supra note 164, Doc. No. 87.
165. 166KEATING, supra note 124, § 2.4.4.
166. See generally id. § 7.2.
167. l68See id.
168. 791 F.2d 1074 (3d Cir. 1986).
169. Id. at 1088.
170. Id.
171. Compare id. at 1082-89 with Section III.B.1.
172. Id. at 1089.
173. Cf. United Food and Commercial Workers Union, Local 328 v. Almac's Inc., 90 F.3d 1, 6 (1st Cir. 1996). ("[B]y providing different standards for the approval of 'rejections' and 'interim changes,' Congress clearly intended not to treat the latter as merely a category of the former.").
174. Athanassios Papaioanou, The Duty to Bargain and Rejection of Collective Bargaining Agreements Under Section 1113 by a Bankruptcy Airline: Trying to Reconcile R.L.A. With Bankruptcy Code, 18 TRANSP. L.J. 219, 223-25 (1990); see Charnov, supra note 151, at 955.
175. Wheeling-Ptttsburgh, 791 F.2d at 1088-89; see Cosetti & Kirshenbaum, supra note 157, at 211.
176. I77 816 F.2d 82 (2d Cir. 1987).
177. See Bank of Am. Nat'1 Trust and Savs. Assoc. v. 203 N. LaSalle St. P'Ship, 526 U.S. 434, 453 (1999) (identifying the "the two recognized policies underlying Chapter 11" as "preserving going concerns and maximizing property available to satisfy creditors").
178. Carey Transportation, 816 F.2d at 89.
179. Id. at 90.
180. Id. at 93. The non-inclusive series of factors adopted by Carey Transportation were: (1) the likelihood and consequences of liquidation if rejection is not permitted; (2) the likely reduction in the value of creditors' claims if the bargaining agreement remains in force; (3) the likelihood and consequences of a strike if the bargaining agreement is voided; (4) the possibility and likely effect of any employee claims for breach of contract if rejection is approved; (5) the cost-spreading abilities of the various parties, taking into account the number of employees covered by the bargaining agreement and how various employees' wages and benefits compare to those of others in the industry; and (6) the good or bad faith of the parties in dealing with the debtor's financial dilemma. Id.
181. Cf. Wheeling-Pittsburgh, 791 F.2d at 1088-89 (arguing that the legislative history of § 1113 demonstrates a "Congressional consensus" to enact a standard "more sensitive to the national policy favoring collective bargaining agreements").
182. iS3 Carey Transportation, 816 F.2d at 90 (quoting Century Brass Prods., Inc. v. Int'l Union of United Auto., Aerospace, and Agric. Implement Workers of Am., Local 1604 (In re Century Brass Prods.), 795 F.2d 265, 273 (2d Cir. 1986)).
183. See KEATING, supra note 124, § 2.5.1 ("Precisely how much better off the unsecured creditors must be made, and at what cost to the union workers whose cuts are enabling that result, are two questions that the word necessary and all of its interpretations thus far have yet to fully resolve.").
184. 342 B.R. 685 (Bankr. S.D.N.Y. 2006); see also In re Northwest Airlines Corp., 346 B.R. 307, 332 (Bankr. S.D.N.Y. 2006).
185. Delta Air Lines, 342 B.R. at 689-90.
186. Id. at 691.
187. Id. at 698.
188. Id. at 696 (emphasis added).
189. In re Delta Air Lines, Inc., 359 B.R. 469, 489 (Bankr. S.D.N.Y. 2006) ("It is the essence of a Chapter 11 reorganization that all economic constituencies of a debtor must make their appropriate and proportionate contribution to the debtor's reorganization in order that all may benefit from the continued viability and future success of the debtor.").
190. See Cosetti & Kirshenbaum, supra note 157, at 183; Cameron, supra note 124, at 904 ("By virtually every measure, the substantive steps are relatively important to bankruptcy judges, while the procedural steps are relatively unimportant. This finding should come as a surprise to serious students of the institution of collective bargaining, which in its quintessential American form eschew government supervision of bargaining outcomes in favor of bargaining process.").
191. See Bilaisco, 465 U.S. at 524 ("We agree . . . that because of the special nature of a collectivebargaining contract, and the consequent 'law of the shop' which it creates, a somewhat stricter standard should govern the decision of the Bankruptcy Court to allow rejection of a collective-bargaining agreement." (internal citations omitted)).
192. See, e.g., 11 U.S.C. §§ 105, 510(c) (2006); Norwest Bank Worthington v. Ahlers, 485 U.S. 197, 206 (1988) ("[W]hatever equitable powers remain in the bankruptcy courts must and can only be exercised within the confines of the Bankruptcy Code.").
193. 540 U.S. 526 (2004).
194. Id. at 538 (quoting Mobil Oil v. Higginbotham, 436 U.S. 618, 625 (1978)).
195. 196See supra notes 185-190 and accompanying text.
196. Bildisco, 465 U.S. at 527.
197. Id. at 526.
198. See id. ("At such a point, action by the Bankruptcy Court is required . . . .").
199. It should be noted that 11 U.S.C. § 1114 imposes procedural requirements similar to § 1113 through which a debtor can modify benefits otherwise payable to retirees. See In re Kaiser Aluminum Corp., 456 F.3d 328, 340 (3d Cir. 2006) (discussing similarity of § 1113 and § 1114). Section 1114, like § 1113, is not incorporated into Chapter 9. See 11 U.S.C. § 901. Hence, neither § 1114 nor § 1113 should have any applicability in Chapter 9. A more thorough discussion of the inapplicability of § 1114 in Chapter 9 is beyond the scope of this Article.
200. Cameron, supra note 124, at 895-96.
201. Id. at 896.
202. Bildisco, 465 U.S. at 533-34.
203. U.S. CONST. amend. X; see Roby, supra note 16, at 974 ("Unless a state's right to control municipal labor relations is
204. U.S. CONST. art. I, § 8 cl. 4.
205. See McConnell & Picker, supra note 15, at 455; see generally Eric W. Lam, Municipal Bankruptcy: The Problem With Chapter 9 Eligibility-A Proposal to Amend 11 U.S.C. § 109(c)(2), 22 ARIZ. ST. L.J. 625 (1988).
206. 11 U.S.C. § 109(c)(2) (2006) (municipal debtor must be authorized by state law or equivalent to file for bankruptcy); see In re Westport Transit Dist., 165 B.R. 93 (Bankr. D. Conn. 1994) (discussing municipal debtor's authority to file for bankruptcy under Connecticut law); In re City of Wellston, 43 B.R. 348 (Bankr. E.D. Mo. 1984) (discussing municipal debtor's authority to file for bankruptcy under Missouri law).
207. 11 U.S.C. § 109(c)(5).
208. See, e.g., Fossey & Sendor, supra note 16, at 134-36 (describing bankruptcy of Copper River School District after failure to obtain wage concessions from its teachers' union); Winograd, supra note 12, at 231 (describing bankruptcy of San José Unified School District after its inability to obtain wage concessions from its teachers' union).
209. 11 U.S.C. § 109(c)(3); see In re City of Bridgeport, 129 B.R. 332 (Bankr. D. Conn. 1991) (discussing § 109(c)(3)).
210. 211McConnell & Picker, supra note 15, at 457.
211. The liquidation of municipalities is generally the province of state law. See 6 COLLIER ON BANKRUPTCY, supra note 152, ¶ 901.04[36][a]. Hence, a bankruptcy court has no authority to order or compel the liquidation of a municipal debtor. See 11 U.S.C. § 943(b)(4) (2006).
212. McConnell & Picker, supra note 15, at 470 ("[M]unicipal bankruptcy is based on the idea of the fresh start rather than the efficient reconfiguration of assets.™).
213. Compare id. with Jackson, supra note 25, at 894.
214. See 11 U.S.C. § 904(2).
215. See McConnell Sc Picker, supra note 15, at 469-71.
216. Cf. NLRB v. Bildisco & Bildisco, 465 U.S. 513, 528 (1984).
217. See infra note 226.
218. Winograd, supra note 12, at 278.
219. See supra Section II.C. (discussing state public sector collective bargaining law).
220. See infra notes 281-286 and accompanying text.
221. Pub. L. No. 94-260, 90 Stat. 315 (amending former 11 U.S.C.); see H.R. REP. NO. 94-686, at 3 (1976), reprinted in 1976 U.S.C.C.A.N. 539, 541 (discussing purpose of 1976 Amendments); 121 CONG. REC. 39,408 (daily ed. Dec. 9, 1975) (statement of Rep. Murphy) ("The recent developments in New York City show the need for a workable procedure for municipalities which find themselves in a financially distressed situation.").
222. See S. REP. NO. 95-989, at 9 (1978) reprinted in 16 ALAN N. RESNICK & EUGENE M. WYPYSKI, BANKRUPTCY REFORM ACT OF 1978: A LEGISLATIVE HISTORY (William S. Hein & Co. 1979) ("Since [the 1976 Amendments] there have been no developments in municipal arrangement proceedings to require any new revision of the law. Thus, the bill tracks the provisions of Public Law 94-260 with stylistic changes to conform to the title").
223. H.R. REP. NO. 94-686, at 6 (1976), reprinted in 1976 U.S.C.C.A.N. 539, 543.
224. H.R. REP. NO. 94-686 at 12, reprinted in 1976 U.S.C.C.A.N. 539, 549 ("The bill gives broad discretion to the petitioner and the court in developing and approving the plan.").
225. Pub. L. No. 94-260, 90 Stat. 315, 316 (1976) (amending former 11 U.S.C.); see H.R. REP. NO. 94-686, at 8, reprinted in 1976 U.S.C.C.A.N. 539, 546 ("The bill grants the court . . . powers which a bankruptcy court has under Chapters X and XI, and under section 77, but which had not previously been granted under Chapter IX. The first is the power to permit the petitioner to reject executory contracts").
226. H.R. REP. NO. 94-686 at 8, reprinted in 1975 U.S.C.C.A.N. 539, 546.
227. Kenneth W. Bond, Municipal Bankruptcy Under the 1976 Amendments to Chapter IX of the Bankruptcy Act, 5 FORDHAM URB. L. J. 12 (1976) ("New Chapter IX has no special provisions for handling the rejection of executory contracts with municipal labor unions.").
228. Supplemental Views of Messrs. Butler, Kindness, Hutchinson, McClory, Moorhead of California, and Hude, with Mr. Wiggins Concurring in Part and Dissenting in Part, reprinted in 1976 U.S.C.C.A.N. 577, 578 ("We understand that conversations took place between certain members of the Committee staff and representatives of one or more municipal employee unions of the City of New York in an unsuccessful effort to obtain an agreement to exclude by amendment collective bargaining agreements from those executory contracts which may be rejected").
229. But see Winograd, supra note 12, at 278 ("The 1976 reforms evidence Congressional solicitude for state interests"). Professor Winograd's contention that the legislative history of the 1976 Amendments implies that a municipal debtor's right to terminate an MOU may be limited by state law relies heavily on the opinion of the House majority and floor statements of Representative Herman Badillo (D. N.Y.). See id. at 279-80. As discussed below, neither source is conclusive with respect to the legislative intent guiding the proper limits of section 82(b). The reliability of Representative Badillo's statement as to the legislative intent of section 82(b)(1), in particular, may be questioned. See infra notes 249-250 and accompanying text.
230. See H.R. REP. NO. 94-686, at 17-18, reprinted in 1976 U.S.C.C.A.N. 539, 555.
231. 519 F.2d 698 (2d Cir. 1975).
232. 523 F.2d 164 (2d Cir. 1975).
233. H.R. REP. NO. 94-686, at 18, reprinted in 1976 U.S.C.C.A.N. 539, 555.
234. NLRB v. Bildisco & Bildisco, 465 U.S. 513, 525 (1984).
235. Id. See Bildisco, 465 U.S. at 524 ("[B]ecause of the special nature of a collective-bargaining contract, and the consequent 'law of the shop' which it creates, a somewhat stricter standard should govern the decision of the Bankruptcy Court to allow rejection of a collective-bargaining agreement, (internal citation omitted)).
236. H.R. REP. NO. 94-986 at 9, reprinted in 1976 U.S.C.C.A.N. 539, 546.
237. See, e.g., N.Y. CIV. SERV. LAW § 209-a(1)(e) (1999).
238. Lawrence P. King, Municipal Insolvency: Chapter IX, Old and New; Chapter IX Rules, 50 AM. BANKR. L.J. 55, 62 (1976) ("The labor law is an exercise of the governmental power. Additionally, if such law requires that current conditions of employment be maintained during the bargaining process, that requirement would, presumably be enforceable under Chapter IX.").
239. See supra Section II.
240. Cf. In re Sanitary & Improvement Dist., No. 7, 98 B.R. 970, 974 (Bankr. D. Neb. 1989) (To create a federal statute based upon the theory that federal intervention was necessary to permit adjustment of a municipality's debts and then to prohibit the municipality from adjusting such debts is not, in the point of view of this Court, a logical or necessary result.").
241. Bildisco, 465 U.S. at 528; see also Executory Labor Contracts, supra note 16, at 969.
242. See Supplemental Views of Messrs. Butler, Kindness, Hutchinson, McClory, Moorhead of California, and Hude, with Mr. Wiggins Concurring in Part and Dissenting in Part, reprinted in 1976 U.S.C.C.A.N. 577, 577.
243. Id. at 577-78.
244. See id. at 578.
245. H.R. REP. NO. 94-938, at 15-16 (1976), reprinted in 1976 U.S.C.C.A.N. 583, 585-86.
246. 247122 CONG. REC. 8217 (daily ed. Mar. 25, 1976) (statement of Sen. Burdick). This statement occurred in a debate between Senator Burdick and Senator Hruska largely devoted to the collective bargaining issue. The relevant portion of the debate is reproduced in the Appendix.
247. See id. at 7971 (statement of Rep. Badillo) ("The pension provisions of collective bargaining agreements affecting the Retirement Systems are implemented by New York State law, and entrenched by the State Constitution . . . .").
248. Id.
249. Id.
250. See supra note 223 and accompanying text.
251. H.R. REP. NO. 95-595, 395 (1977), reprinted in 13 Resnick & Wypyski, supra note 223 ("The applicability of section 365 incorporates the general power of a bankruptcy court to authorize the assumption or rejection of executory contracts or unexpired leases found in other chapters of the title. This section is comparable to section 82(b)(l) of current law.").
252. S. REP. NO. 95-989, at 112 (1978), reprinted in 16 Resnick & Wypinski, supra note 223 (emphasis added) (alteration in original) (quoting Executory Labor Contracts, supra note 16, at 965). Professor Winograd notes that the Senate Report "mischaracterizes" the cited article. Winograd, supra note 12, at 281 ("Rather than a preemption analysis, the commentator proposed using [a] 'new entity' theory to justify construction of state laws so that a duty to bargain would continue, but post-rejection maintenance of terms would not be required."). This criticism is valid but irrelevant. A debtor would not be obliged to maintain pre-rejection contractual obligations on a post-rejection basis under either the commentator's approach or its characterization by the Senate Report. See Executory Labor Contracts, supra note 16, at 973 ("State law would then present no bar to a city's unilateral alteration of employment terms after rejection").
253. H.R. 3949, 102d Gong. § 2(c) (1991), reprinted in 4 Reams & Manz, supra note 164, at Doc. No. 278.
254. See In re County of Orange, 179 B.R. 177, 183 n.15 (Bankr. C.D. Cal. 1995) ("This section would have forced a Chapter 9 debtor to comply with its collective bargaining agreement; however, it was never enacted into law").
255. McConnell & Picker, supra note 15, at 435, 446.
256. See Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356, 362 (2006) ("[Bankruptcy] does not implicate States' sovereignty to nearly the same degree as other kinds of jurisdiction." (citing Tenn. Student Assistance Corp. v. Hood, 541 U.S. 440, 450-51 (2004)).
257. 258110 U.S. 321 (1884)
258. Id. at 322-23; cf. 11 U.S.C. § 904(1) (barring a bankruptcy court from interfering with "any of the political or governmental power of [a] debtor").
259. Zebley, 110 U.S. at 324.
260. Pub. L. No. 251, 48 Stat. 798 (1934); see generally McConnell & Picker, supra note 15, at 427-29 (discussing evolution of federal municipal bankruptcy law).
261. 298 U.S. 513 (1936).
262. Id. at 523-24.
263. Id. at 530.
264. Id.
265. Id. at 533 (Cardozo, J., dissenting).
266. Id. at 534.
267. Id. at 538.
268. McConnell & Picker, supra note 15, at 451.
269. U.S. CONST. art. I § 8, cl. 4.
270. See, e.g., In re Sanitary & Improvement Dist. No. 7, 96 B.R. 966, 967 (Bankr. D. Neb. 1989) (holding bankruptcy court has no jurisdiction to rule on municipal debtor's use of revenues).
271. See id. ("The debtor is vested with its property and is subject to state law concerning its distribution. This Court may not approve or disapprove of its disposition, except in contemplation of plan confirmation.").
272. Cf. Int'l News Serv. v. Assoc. Press, 248 U.S. 215, 247-48 (1918) (Holmes, J., dissenting) ("It is a question of how strong an infusion ... is necessary to turn a flavor into a poison.").
273. Pub. L. No. 302, 50 Stat. 653 (1937).
274. 304 U.S. 27 (1938).
275. Id. at 45-46.
276. Id. at 46.
277. McConnell & Picker, supra note 15, at 452; Winograd, supra note 12, at 272.
278. Bekins, 304 U.S. at 51.
279. See McConnell & Picker, supra note 15, at 452 ("In his argument before the Court, Solicitor General Robert Jackson all but admitted that the sections of the statute applicable to political subdivisions of the State would be unconstitutional under Ashton, but quoted a member of Congress to the effect that 'it was not only the right, but the duty of Congress to present the question once more to this Court, since the decision, if allowed to stand, threatened grave impairment to the powers of the States.'" (citation omitted)).
280. See 6 COLLIER ON BANKRUPTCY, supra note 152, ¶ 904.01[2].
281. Cf. In re Delta Air Lines, 342 B.R. 685 (Bankr. S.D.N.Y 2006) (refusing to permit rejection of CBA where debtor had not sought pro rata concessions from its unions).
282. In re Addison Cmty. Hosp., 175 B.R. 646, 649 (Bankr. E.D. Mich. 1994) ("The foundation of § 904 is the doctrine that neither Congress nor the courts can change the existing system of government in this country. . . . [C]hapter 9 was created to give courts only enough jurisdiction to provide meaningful assistance to municipalities that require it, not to address the policy matters that such municipalities control." (internal citations omitted)).
283. See In re County of Orange, 179 B.R. 195, 200 (Bankr. C.D. Cal. 1995) (holding that § 904(2) bars a court from ordering a debtor to make interim payments to professionals); accord In re Castle Pines North Metro. Dist., 129 B.R. 233, 233 (Bankr. D. Colo. 1991) (noting that it is "fairly obvious" that § 904(2) would be violated if the Court ordered the District to make interim payments to counsel for the Creditors' Committee since "it would be interfering with the revenues of the District, at least insofar as it could or would affect its cash flow"). But see In re E. Shoshone Hosp. Dist., 226 B.R. 430 (Bankr. D. Idaho 1998).
284. McConnell & Picker, supra note 15, at 462.
285. Id. (citing 11 U.S.C. § 1104(a) (2006)).
286. See supra Section II.B. But see Winograd, supra note 12, at 317-18 (arguing that Garcia should not eliminate discretionary efforts "to reconcile federal bankruptcy law with state negotiating requirements").
287. 29 U.S.C. § 152(2) (2006).
288. See, e.g., supra notes 110-114 and accompanying text (discussing efforts of Representative Clay to enact federal legislation governing the collective bargaining rights of firelighters).
289. 11 U.S.C. § 109(c)(2) (2006).
290. Bekins, 304 at 54; accord In re Columbia Falls, Special Improvement Dist. No. 25, 143 B.R. 750, 760 (Bankr. D. Mont. 1992) ("Far from interfering with the ability of the state of Montana to control its municipalities, it is concluded Montana has affirmed that its municipalities may avail themselves of the benefits of the federal bankruptcy process, including the modification and termination of these sorts of debts, and such does not interfere with the power of the State of Montana to control a municipality or in the exercise of the political or governmental powers of such municipality.").
291. 546 U.S. 356 (2006).
292. Id. at 378.
293. See Randolph J. Haines, The Uniformity Power: Why Bankruptcy is Different, 77 AM. BANKR. L.J. 129, 174 (2003) (*'[T]he power granted to Congress by the Framers did not merely override the states' reserved legislative authority, as did the Supremacy Clause, but completely alienated ... all of the states' sovereignty with respect to that body of law." (internal quotation marks omitted)).
294. See Katz, 546 U.S. at 376-77.
295. Id. at 369.
296. See Haines, supra note 294, at 196.
297. See supra Section IL.C.
298. See United Haulers Assoc., Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 127 S.Ct. 1786, 1810 (2007) (Alito, J., dissenting) (discussing rejection of National League of Cities as "analytically unsound").
299. 11 U.S.C. § 109(c)(2).
300. Cf. National League of Cities v. Usery 426 U.S. 833, 852 (1976) ("[I]nsofar as the challenged amendments operate to directly displace the States' freedom to structure integral operations in areas of traditional governmental functions, they are not within the authority granted Congress by Art. I, § 8, cl. 3.").
301. United States v. Bekins, 304 U.S. 27, 54 (1938).
302. See 11 U.S.C. § 101(10) (2006) (defining " creditor™ as any entity holding a claim against a debtor). 304 6 COLLIER ON BANKRUPTCY, supra note 152, ¶ 903.02[4] ("If a state has specifically authorized a municipality to file under chapter 9, that authorization should be construed as an expression of state policy that the benefits of chapter 9, and the application of the substantive provisions of chapter 9, are more important than any restriction on state law that might arise by reason of application of chapter 9.").
303. See supra Section IV.A.
304. N.Y. CIV. SERV. LAW § 210 (1999).
305. See supra note 69.
306. See Winograd, supra note 12, at 237-40.
307. 309See supra Section II.C.
308. See, e.g., N.Y. CIV. SERV. LAW § 209-a(1)(e) (1999) (requiring public sector employers to maintain pre-existing payment terms pending resolution of collective bargaining negotiations).
309. 6 COLLIER ON BANKRUPTCY, supra note 152, ¶ 901.04[9][a] ("[S]uch an importation of state law potentially runs afoul of section 904 which prohibits the court from interfering with 'any of the political or governmental powers of the debtor.'").
310. In re County of Orange, 179 B.R. 177, 184 (Bankr. C.D. Cal. 1995).
311. See supra notes 60-68 and accompanying text.
312. Richard Wallace, Comment, Union Waiver of Public Employees' Due Process Rights, 8 INDUS. REL. L.J. 583, 593-94 (1986).
313. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545 ("[T]he formality and procedural requisites for the hearing can vary, depending on the importance of the interests involved and the nature of the subsequent proceedings."); Mathews v. Eldridge,, 424 U.S. 319, 334 (1976) ("Due process is flexible and calls for such procedural protections as the particular situation demands." (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)); see J. Michael McGumness, Procedural Due Process of Public Employees: Basic Rules and a Rationale for a Return to Rule-Orimted Process, 33 NEW ENG. L. REV. 931, 935 (1999) ("Historically, the Supreme Court has emphasized a flexible procedural due process standard by employing a balancing test on a case-by-case basis to determine what process is due in a particular situation.").
314. See FED. R. BANKR. P. 6006, 9014.
315. 217Mathews, 424 U.S. at 334.
316. Parrett v. City of Connersville, 737 F.2d 690, 696 (7th Cir. 1984).
317. 3J9 See 11 U.S.C. § 109(c)(3) (2006).
318. Cf. N.Y. CIV. SERV. LAW § 209-a(1)(e) ("It shall be an improper practice for a public employer or its agents deliberately ... (e) to refuse to continue all terms of an expired agreement until a new agreement is negotiated, unless the employee organization which is a party to such agreement has, during such negotiations or prior to such resolution of such negotiations, engaged in [a strike] . . . .").
319. Cf. Ashton v. Cameron County Water Improvement Dist. No. 1, 298 U.S. 513, 535 (1936) (Cardozo, J., dissenting) ("The history [of bankruptcy] is one of an expanding concept. It is, however, an expanding concept that has had to fight its way").
320. 11 U.S.C. § 1113.
321. 11 U.S.C. § 109(c)(2).
322. Kapoor, supra note 14, at 401.
323. 325122 CONG. REC. 8215-17 (1976).