                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-1957


INTERNATIONAL   ASSOCIATION  OF   MACHINISTS AND     AEROSPACE
WORKERS; SOUTH CAROLINA AMERICAN FEDERATION OF      LABOR AND
CONGRESS OF INDUSTRIAL ORGANIZATIONS,

                Plaintiffs - Appellants,

           v.

NIMRATA HALEY, a/k/a Nikki Haley, in her official capacity
as Governor of South Carolina; CATHERINE TEMPLETON, in her
official capacity as Director of the South Carolina
Department of Labor, Licensing and Regulation,

                Defendants - Appellees.



Appeal from the United States District Court for the District of
South Carolina, at Charleston. C. Weston Houck, Senior District
Judge. (2:11-cv-00153-CWH)


Argued:   March 20, 2012                      Decided:   May 3, 2012


Before NIEMEYER, DUNCAN, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Kathleen Phair Barnard, SCHWERIN CAMPBELL BARNARD
IGLITZIN & LAVITT, Seattle, Washington, for Appellants.  Ashley
Prickett Cuttino, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, PC,
Greenville,  South   Carolina,  for   Appellees.     ON  BRIEF:
Christopher Corson, General Counsel, INTERNATIONAL ASSOCIATION
OF MACHINISTS & AEROSPACE WORKERS, Upper Marlboro, Maryland;
Armand Derfner, DERFNER ALTMAN & WILBORN, Charleston, South
Carolina, for Appellants. Robert D. Cook, James E. Smith, Jr.,
OFFICE OF THE ATTORNEY GENERAL, Columbia, South Carolina; Mark
H. Wall, WALL TEMPLETON & HALDRUP, PA, Charleston, South
Carolina, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

       The International Association of Machinists and Aerospace

Workers (“IAMAW”) and the South Carolina AFL-CIO (“SC AFL-CIO”)

(collectively,       “the    unions”)    brought       claims    pursuant     to    42

U.S.C. § 1983 against Nimrata Haley, Governor of South Carolina,

and    Catherine      Templeton,    Director          of   the    South     Carolina

Department of Labor, Licensing, and Regulation (“SC DOL”), 1 in

their official capacities (collectively, “Appellees”) for making

anti-union      statements.        The       unions    allege     that    Appellees

instituted      a   policy   of   enhanced      regulatory       scrutiny    against

unions and pro-union workers in retaliation for their attempts

to organize workers in the state in violation of their rights

under the First and Fourteenth Amendments and the National Labor

Relations Act (“NLRA”), codified as amended at 29 U.S.C. §§ 151-

169.       The unions sought, inter alia, an injunction requiring

Appellees to “commit . . . to remain neutral.”                     J.A. 53.        The

district court dismissed the complaint and the unions appealed.

Based largely on the reasoning of the district court, we affirm.




       1
           Templeton has since left SC DOL.


                                         3
                                    I.

                                    A.

      Because this appeal arises from a motion to dismiss, we

look primarily to the unions’ complaint 2 for the relevant facts.

See   Brockington   v.   Boykins,   637   F.3d   503,    505-06   (4th   Cir.

2011).    We do not, however, take account of allegations in the

complaint labeled as fact but that constitute nothing more than

“legal conclusions” or “naked assertions.”              Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 557 (2007)).

      The primary allegations in the unions’ complaint are (1)

that Haley and Templeton were

      unlawfully utilizing “increased regulatory scrutiny”
      of   union  activities   and  threats   to immediately
      activate the “punitive machinery” of state government
      against unions and against employees who wish to join
      or who advocate in favor of unions . . . in
      retaliation for the activities of [the unions], [the
      unions’] members and their potential members, in
      violation of their 1st Amendment rights,

J.A. 36-37 (quoting Blankenship v. Manchin, 471 F.3d 523, 529

(4th Cir. 2006)); and (2) that Appellees “agreed to utilize the

machinery of state government to prevent workers in the state

from joining unions, from organizing unions in their workplaces

and from advocating for unions,” in direct conflict with the

      2
       Unless otherwise noted, “complaint” refers to the unions’
second amended complaint.


                                    4
NLRA, J.A. 41.       The activities against which Appellees allegedly

retaliated are (1) IAMAW’s previous representation of aerospace

workers in South Carolina, including at a manufacturing plant

acquired    by      Boeing      Co.       in     2009;         (2)     IAMAW’s     ultimately

unsuccessful fight against decertification at the Boeing plant

in 2009; (3) IAMAW’s continuing advocacy for “working conditions

and   organizing      [of]      workers         at    .    .    .     facilities    in   South

Carolina, including those operated by Boeing,” J.A. 39; and (4)

SC AFL-CIO’s participation “in the campaign to retain IAMAW as

the representative of workers at Boeing’s facility,” id.

      According      to     the         complaint,         the       regulatory     machinery

through     which     Appellees           retaliated            and    will    continue     to

retaliate    against         the        unions       and       their     allies    is    South

Carolina’s “Right to Work” law.                      South Carolina’s Right to Work

law makes unlawful agreements between unions and employers to

restrict employment to union members and outlaws conditioning

employment on union membership.                      S.C. Code §§ 41-7-20, 30.             The

law also makes it unlawful for “any person . . . to interfere .

. . with [any] person in the exercise of his right to work . . .

or . . . to compel or attempt to compel any person to join, or

support,    or    refrain       from          joining      or       supporting     any   labor

organization.”            Id.      at     §    41-7-70(1).              Investigation      and

enforcement related to South Carolina’s Right to Work law are

the responsibilities of the Director of SC DOL.                               Id. at § 41-7-

                                                5
75(A).      The unions allege that Appellees have used and will

continue to use the investigative and enforcement power provided

by this law in order to unfairly subject the unions and their

allies to increased regulatory scrutiny.

      Notably for purposes of our analysis, the unions alleged no

specific regulatory action taken against them or their allies

pursuant    to       the   Right   to    Work   law   or   any   other    law.     They

pointed instead to statements made by Appellees that contain

anti-union       rhetoric. 3       For    example,    the    unions      alleged   that

Haley,     at    a     press   conference       announcing       her   intention     to

nominate Templeton to be Director of SC DOL, stated:

      The [SC DOL] is going to have a large role over the
      next couple of years, one being with the unions, and
      that is the fact that we think we are going to have a
      big union fight, as we go forward, with Boeing, and
      you are right now looking at the only female in the
      nation [Templeton] that has fought the largest UAW
      push that we’ve been through, and so she is ready for
      that, she is ready for the challenge, she knows what
      it takes to take it on, and she understands that it’s
      going to be a partnership level that we cannot lose.

J.A. 40-41.          At the same press conference, Haley said, “We are

going to fight the unions, and I needed a partner to help me do

it; [Templeton is] the right person to help me do it.”                           Id. at

41.   Later, Haley publicly stated that it was “no secret” that

she does not “like the unions,” id. at 43, and “[w]e keep the

      3
       We assume, without deciding, that all statements made by
Appellees were made under color of state law.


                                            6
unions out. . . .          We are not going to allow unions to come into

this state,” id. at 44.            Templeton, for her part, is alleged to

have     stated,     for     example,       that       “this    is      an    anti-union

administration. . . .             We don’t want Boeing or anybody else to

introduce extra bureaucracy into the administration.”                             Id. at

43.

       The unions asserted four constitutional violations.                        First,

the unions claimed that Appellees’ statements show that a policy

of     increased     regulatory      scrutiny          has     been     instituted     in

retaliation for the unions’ protected activity, in violation of

the    First    Amendment,    and    that       this   policy    “will       violate   the

rights of employees at Boeing plants, and elsewhere in South

Carolina, to organize, join a union, bargain collectively, and

engage in other protected concerted activity” (the “retaliation”

claim).    Id. at 46.        Second, the unions alleged that Appellees’

actions have violated the First Amendment by “chill[ing] the

speech    and    associational      activities         of    members    and    potential

members    and     allies    of    [the   unions]       and     other    labor    unions

everywhere within the state of South Carolina” (the “chilling”

claim).    Id. at 46.        Third, the unions claim that the activities

of Appellees have “deprive[d] South Carolina workers of their

liberty to join and/or support unions” without due process of




                                            7
law, in violation of the Fourteenth Amendment. 4                             Id. at 51.

Fourth, the unions allege that Appellees’ activity amounts to

“disparate and adverse treatment” that deprives the unions and

their    allies         of     “equal     protection      under        the    Fourteenth

Amendment.”     Id.

     The     unions      brought        one    non-constitutional        claim.      The

unions alleged that the Appellees’ activities are preempted by

the NLRA.     Section 7 of the NLRA guarantees workers the right to

form unions and bargain collectively.                     It provides, “Employees

shall have the right to self-organization, to form, join, or

assist     labor    organizations,            to   bargain    collectively       through

representatives of their own choosing, and to engage in other

concerted activities for the purpose of collective bargaining or

other mutual aid or protection.”                   29 U.S.C. § 157.          The section

preempts state regulation of this protected conduct.                          Lodge 76,

Int’l Ass’n        of   Machinists       &    Aerospace      Workers    v.   Wis.   Emp’t

Relations Comm’n, 427 U.S. 132, 148-51 (1976); San Diego Bldg.

Trades Council, Millmen’s Union, Local 2020 v. Garmon, 359 U.S.

236, 244 (1959).             The unions claimed that Section 7 preempts the

actions by appellees:

     4
       The unions do not specify whether they assert a violation
of procedural or substantive due process.         Based on the
allegations in the complaint, as well as the unions’ briefing,
however, we are comfortable interpreting the unions’ claim as
involving substantive due process.


                                               8
     By publicly declaring the State of South Carolina’s
     policy and plan to oppose workers’ efforts to organize
     unions and to advocate for better terms and conditions
     of work in association with other workers, and by
     Haley’s appointing Templeton as the LLR Director to
     help her “fight the unions,” Defendants Haley and
     Templeton are acting under color of state law to
     interfere with rights of unions, union members and
     potential union members guaranteed by the NLRA.   This
     declared policy to “fight unions” is preempted by the
     NLRA.

J.A. 48.        The unions sought an injunction barring this “policy

and plan.”

                                           B.

     On January 20, 2011--approximately one week after Haley’s

swearing     in    as      governor--the           unions    filed      their     original

complaint.        The unions filed an amended complaint on February

18, 2011, adding additional statements by Appellees.                              On March

3,   2011,      Appellees        moved   to        dismiss     the      unions’    amended

complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).

Before    the     ruling    on    Appellees’         motion,      the    district      court

allowed the unions to file a second amended complaint.                                  The

unions filed their second amended complaint on July 25, 2011.

On August 8, 2011, the district court granted Appellees’ motion.

     In    dismissing       the    unions’        complaint,      the    district      court

found    three    determinations         dispositive.             First,   the    district

court     determined       that    in    making      the     anti-union      statements,

Appellees were themselves engaging in protected activity.                                In

other    words,    “First     Amendment           rights    are   implicated      on    both

                                              9
sides of this case.”           J.A. 70.       As such, the district court

imposed a heightened burden on the unions, viewing skeptically

any   proposed    interference     with     Appellees’    protected     activity.

Second,    the    district     court   determined        that   the    statements

allegedly made by the Appellees contained no specific threats of

regulatory action, but instead were the type of “general, broad,

political pronouncements,” that are “both pervasive and mundane”

in the political arena.            Id. at 75-76.          If such commonplace

activity       were   actionable,      the     district     court      concluded,

virtually every public statement by an elected official on a

divisive political issue would spawn litigation.                      Third, the

district court determined that the unions alleged no specific

regulatory action against them or their allies.                       “Although a

threat need not be corroborated by action to be actionable,” the

district court reasoned, such action and the sequence in which

it occurred could support a plaintiff’s interpretation of an

otherwise innocuous statement as a threat.                 Id. at 76-77.       The

district   court      concluded    that     these   infirmities       doomed   the

unions’ claims.       The unions timely appealed.



                                       II.

      On appeal, we review a district court’s 12(b)(6) dismissal

de novo, employing the same standard as the district court.                     To

survive    a     motion   to      dismiss,    a     complaint    must     contain

                                       10
“sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’ ”                          Iqbal, 556 U.S. at

678    (quoting     Twombly,       550      U.S.    at     555).      To     satisfy       this

plausibility      standard,         the     complaint        must     indicate          that     a

defendant’s liability is “more than a sheer possibility.”                                      Id.

“Where    a   complaint       pleads      facts      that    are    ‘merely       consistent

with’    a    defendant’s       liability,         it    ‘stops     short    of     the    line

between possibility and plausibility of entitlement to relief.’

”     Id. (quoting Twombly, 550 U.S. at 557).                        Following Twombly,

if there is an “obvious alternative explanation” for each of the

actions alleged that suggests lawful conduct, the complaint has

not satisfied the plausibility standard.                       See 550 U.S. at 567.

We now turn to a consideration of the arguments.

                                             A.

       We begin our analysis with the unions’ retaliation claim.

“A retaliation claim under 42 U.S.C. § 1983 must establish that

the    government       responded      to    the        plaintiff’s    constitutionally

protected activity with conduct or speech that would chill or

adversely affect his protected activity.”                      The Baltimore Sun Co.

v.    Ehrlich,    437    F.3d      410,     416    (4th     Cir.    2006).        The     three

elements of a retaliation claim are: (1) protected activity by

the    plaintiff,       (2)   an    adverse        action    against       plaintiff       that

chills    the    plaintiff’s        protected        activity,       and    (3)     a    causal

relationship      between       the    protected          activity    and     the       adverse

                                             11
action.        Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 686 (4th

Cir. 2000).

        Like    the   district       court,      we   focus     our       analysis   on    the

second      element:        an   adverse    action       against      a    plaintiff      that

chills the plaintiff’s protected activity.                       First, we agree with

the district court that the unions have failed to sufficiently

allege any regulatory action taken against them or their allies.

Although the unions do assert, for example, that “Haley . . .

has established, maintained, and enforced the State’s policy and

practice to suppress . . . workers’ efforts to join a union,”

J.A. 39, they point to no investigation, fine, or any other

action, regulatory or otherwise, to support this or any other

similar      allegation.           Without    any     factual      underpinning,          such

allegations amount to nothing more than “naked assertions” that

we   cannot        credit    for    the    purpose       of   analyzing      a    motion    to

dismiss.       See Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S.

at 557). 5

        Yet this is not the end of our inquiry.                           A plaintiff may

sufficiently allege the second element of a retaliation claim

based       upon    speech       alone.     As     the    district        court   correctly

observed, however, a plaintiff relying only on speech to fulfill

        5
       To be sure, should any adverse action occur later, the
unions may renew their challenge, although questions of
causation remain.


                                              12
the second element has a heavy burden to overcome.                     As we noted

in Page v. Lexington County School District One, 531 F.3d 275

(4th Cir. 2008), “[t]he needs of effective governance command

that the bar limiting government speech be high.”                      Id. at 287

(quoting Kidwell v. City of Union, 462 F.3d 620, 626 (6th Cir.

2006)).    For this reason,

       [w]hen the challenged government action is government
       speech, there is no retaliation liability--even if the
       plaintiff   can  demonstrate   a   substantial adverse
       impact--unless the government speech concerns “private
       information about an individual” or unless it was
       “threatening, coercive, or intimidating so as to
       intimate   that   punishment,   sanction,   or adverse
       regulatory action will imminently follow.”

Baltimore Sun, 437 F.3d at 417 (quoting Suarez, 202 F.3d at

689).       There    is    no     allegation    that     Appellees’     statements

concerned private information about an individual, so, to be

actionable, the statements alleged by the unions must threaten

imminent action.

       We agree with the district court that Appellees’ alleged

statements do not contain such threats.                      On their face, the

statements alleged by the unions contain nothing that we could

plausibly    interpret       as    indicating    imminence.        Most    of   the

statements     do    not     reference      action      at   all--e.g.,    Haley’s

statement that she does not like unions.                     Even the statements

that    include     an    indication   of     action,    however--for     example,

Haley’s     statement      that    Appellees     are     “going   to    fight   the


                                         13
unions”--are far too broad and nebulous to allow us to interpret

them as intimating imminent action. 6                    Supporting this conclusion

is the fact that the unions filed their second amended complaint

nearly      eight    months      after    their     original     complaint--in    which

they       first    claimed      that    such     statements       intimated   imminent

action--and         yet    the    second        amended       complaint    contains   no

allegation         of     specific       regulatory       action     following    these

statements.          Although, as the district court correctly noted,

actual regulatory action is not necessary to state a claim for

retaliation, such action is helpful to a plaintiff’s argument

that an otherwise innocuous statement should be interpreted as a

threat of imminent action.                  See Blankenship, 471 F.3d at 529

(“[T]he actual regulatory scrutiny that [plaintiff] experienced

shortly      after      [Governor       Manchin’s       remarks]    strongly   supports

interpreting         Manchin’s       remarks       as     a    threat     of   increased

regulatory scrutiny.”).              In the absence of any such support, we




       6
        In the same vein, such general statements are not
actionable because there is an “obvious alternative explanation”
as to the meaning of each of the statements alleged that
suggests lawful conduct.    See Twombly, 550 U.S. at 567.    The
obvious alternative explanation is that these statements are
nothing more than rhetoric in a political debate that is by its
nature “rough and tumble.”     Baltimore Sun, 437 F.3d at 419
(quoting Eaton v. Meneley, 379 F.3d 949, 956 (10th Cir. 2004)).
Because the unions have alleged no facts tending to show that
these statements are anything but heated political rhetoric, the
statements are not actionable.


                                             14
are left with the conclusion that Appellees’ statements are not

threats of imminent action and therefore are not actionable.

                                               B.

     We now turn briefly to the unions’ remaining claims, each

of which fails for the same reason that their retaliation claim

failed: the unions have failed to allege any action or threat of

imminent action on the part of Appellees.                      We first consider the

unions’ chilling claim.            To be actionable as chilling protected

activity, the alleged government action must be “likely [to]

deter a person of ordinary firmness from the exercise of First

Amendment rights.”          Constantine v. Rectors & Visitors of George

Mason Univ., 411 F.3d 474, 500 (4th Cir. 2005) (quotation marks

omitted).       We    agree   with       the    district      court    that   Appellees’

statements--indicating nothing more than political opposition to

unions    and   not    threatening        any       action--“would     not    reasonably

deter    workers      or   union    organizers         of   ordinary    firmness      from

exercising        their     First        Amendment          rights.”          J.A.     78.

Accordingly, we affirm the dismissal of the unions’ chilling

claim.

     We    next      consider      the    unions’       two    Fourteenth     Amendment

claims, beginning with the substantive due process claim.                            As we

have stated:

     The core of the concept of substantive due process is
     the protection of the individual against arbitrary
     action of government . . . .         [O]nly the most

                                               15
       egregious official conduct can be said to be arbitrary
       in the constitutional sense.      Thus, the threshold
       question is whether the behavior of the governmental
       officer is so egregious, so outrageous, that it may
       fairly be said to shock the contemporary conscience.
       The kind of . . . conduct that fairly can be said to
       shock the conscience involves abusing executive power,
       or employing it as an instrument of oppression.

Martin v. Saint Mary's Dep’t Soc. Servs., 346 F.3d 502, 511 (4th

Cir.       2003)        (quotation        marks,           citations,        and        alterations

omitted).           Without       some    accompanying             regulatory       action,      the

political          rhetoric       alleged         by       the    unions     here       is     itself

protected activity and thus a far cry from an abuse of power or

an   act     of     government         oppression.               Accordingly,      the       district

court       was     correct       to     dismiss           this    claim.          As    to    equal

protection, without an allegation of some action directed at the

unions or their allies, their allegation of disparate treatment

must be rejected.               Accordingly, the district court was correct

to reject this claim.

       Finally,         we     consider      the       unions’      NLRA    preemption         claim.

This claim too must fail because the unions allege no action

that       could       be    preempted       by    the       NLRA.         Whatever      the    NLRA

preempts,         it    does    not    act    as       a   bar     to   anti-union        political

rhetoric without more. 7

       7
       To their credit, the unions acknowledge as much.    See
Appellants’ Br. 28 (“[W]hat the NLRA demands of states is that
their officials do not go beyond protected expression of
political opinion.”).


                                                   16
                           III.

    For the foregoing reasons, the dismissal of the unions’

claims is

                                                  AFFIRMED.




                            17
