dissenting:

With due respect to the views of my colleagues, I must dissent.

Although the majority’s opinion is soundly reasoned, it rests on a faulty premise: that the City of Seward acted as a public employer when it conditioned bidding on its electrical project to those contractors who agreed to be union signatories. If it was acting as a public employer, it would be unnecessary to address the appellants’ preemption argument. If the City actually employed the contractors’ laborers, the NLRA would simply not apply because States are excluded from the NLRA’s definition of employer. 29 U.S.C. § 152 (2); see also Associated Builders and Contractors of Massachusetts/Rhode Island, Inc. v. Massachusetts Water Resources Authority, 935 F.2d 345, 354 (1st Cir.1991) (en banc), cert. granted, - U.S. -, 112 S.Ct. 293 , 116 L.Ed.2d 238 (1992) [Boston Harbor].

As in Boston Harbor, indicia of an employer/employee relationship between the City and the contractors’ laborers are not present here. 1 Not surprisingly, neither *500 side in our case even argues that the City had an employment relationship with the laborers. Despite this lack of evidence, the majority maintains that, because the City’s actions were motivated by its desire to maintain a harmonious relationship with its own employees, it may regulate the labor relations of other employers. 2 This can not be.

As the Boston Harbor court noted:

Id. at 355 . To allow the City to engage in regulation of other employers’ labor relations would displace the NLRA. Taken to the extreme, the majority’s state-as-employer argument could result in an anti-union state government permitting .only non-union employers to bid on state projects. See id. Moreover, the majority’s focus on the City’s intent in adopting the work preservation clause would force the federal courts into an evaluation of local government motives, a seemingly impossible task and one which we have traditionally avoided. In short, when a State acts as a public employer, it should be bound to confine its regulatory function to its own current and future employees.

That a private employer could agree to a work preservation clause does not help the City here. Although the majority suggests that the rules are the same for public and private employers, the statute suggests otherwise. The Boston Harbor court explicitly rejected the appellees’ argument that because the MWRA’s action would be lawful under NLRA §§ 8(e) and (f) if the MWRA were a private employer, “there is no basis under the NLRA to treat a state more harshly than a comparably situated private party.” Id. at 358.

The court declared that Congress is “perfectly capable of distinguishing between states and private parties” as it has done in sections 8(e) and (f). Id. In Wisconsin Dept. of Indus. v. Gould, 475 U.S. 282, 290 , 106 S.Ct. 1057, 1063 , 89 L.Ed.2d 223 (1986), the Court explained why it is important to treat public and private employers differently:

The Boston Harbor court concluded that “it is plain that the private employer comparison merits little weight. The MWRA is an arm of the state, and its acts must be judged accordingly.” Boston Harbor, 935 F.2d at 358 .

The majority finds no support in sections 8(e) or (f) either. Those sections, which allow pre-hire agreements in the construction industry for private employers, are deafeningly silent as to permitted state regulation. See Glenwood Bridge, Inc. v. City of Minneapolis, 940 F.2d 367, 371 (8th Cir.1991) (holding that Sections 8(e) and (f) do not grant public employers the ability to enter into pre-hire agreements). In enacting the two sections, Congress occupied the field to the exclusion of local regulations such as Specification 13.1 in Boston Harbor 3 and the work preservation clause here. See Boston Harbor, 935 F.2d at 357 .

*501 Were the City the employer, I would have little trouble agreeing with the majority’s conclusions. I fail to see how the City’s relationship with its own employees justifies its intrusion into the labor relationships between prospective contractors and their employees. I respectfully dissent.

. In deciding that insufficient indicia of an employment relationship existed in Boston Harbor, the court considered the facts establishing whether an independent contracting relationship existed between the MWRA and its employees. It found that under the standard for determining independent contractor status, the relationship between the construction workers and the MWRA was a contractual, not an employment, relationship. It reached this conclusion by finding that the MWRA did not have the right to control the laborers’ performance, nor did it pay their salaries, provide pension or other benefits, or make FICA payments on their behalf. Id. at 355, n. 17 .

Here, the parties did not have opportunity to explore the relationship between the City of Seward and its own employees to the extent that the Boston Harbor parties did. Because the majority fails to provide any evidence that the *500 City acted as an employer here, it is hard to accept the conclusion that it did.

. Under normal circumstances, employers may not enter into pre-hire agreements. Congress made an exception for private employers in the construction industry. To allow a state entity, which cannot be an employer under the NLRA, to be considered an employer for purposes of this exception is "fancy judicial foot work at its nimblest." Id.

. Specification 13.1 in Boston Harbor, like the work preservation clause between the City and the IBEW, limited bidding on the MWRA's project to those contractors who agreed to hire only union laborers. The Boston Harbor court found that the NLRA preempted Specification 13.1 because it directly regulated the bargaining process. The court stated, “where interference into the collective bargaining process by the state is direct, an asserted state interest of the type at issue here, whether 'proprietary' or otherwise, cannot justify the interference.” Id. at *501 359 . As in Boston Harbor, our inquiry should focus on whether the City’s action has the effect of regulating the collective bargaining process, rather than on what the City’s motives were in agreeing to a work preservation clause.