Government Recommends Grant in No. 06-939, Chamber of Commerce v. Brown
The federal government has asked the Court to consider a challenge to a California law barring private employers who receive state money from using the funds to influence union organizing campaigns. The recommendation, filed on Friday in support of a Chamber of Commerce petition, argues that the National Labor Relations Act preempts the California statute, and that an en banc panel of the Ninth Circuit created a circuit split in holding otherwise. Click here to read the government brief, and the following links to read the petition, brief in opposition, and reply.
The law in question, enacted in September 2000, prohibits entities that receive state money from using the funds to “assist, promote, or deter union organizing,” including “any attempt of an employer to influence the decision of its employees” over whether to support or join a labor union. The Chamber of Commerce had successfully challenged the law in district court and before a Ninth Circuit panel before the en banc ruling.
The government’s brief contends the California law runs afoul of two NLRA preemption doctrines. The first, recognized in San Diego Building Trades v. Garmon (1959), forbids states from regulating activity the NLRA explicitly or arguably protects or prohibits. The second, established in Lodge 76, International Association of Machinists v. Wisconsin Employment Relations Commission (1976), bars states from regulating activity Congress intended to leave subject to the natural result of economic forces.
The Solicitor General argues that the California law conflicts with both a longstanding congressional intent to permit “robust debate” during union organizing drives, as well as the generally exclusive authority of the National Labor Relations Board to regulate employer speech during such campaigns. The government also argues that, because the law does not cover spending by employers who voluntarily recognize unions, the law effectively encourages employers to forego their right to require unions to first prevail in a Board-certified election.
In addition to its preemption argument, the government also recommends granting the petition to resolve a conflict with a recent Second Circuit decision. According to the Solicitor General, that court struck down portions of a similar law in Healthcare Association of New York State, Inc. v. Pataki (2006), which found a state “cannot leverage its money to affect” employer activity “beyond [its] dealings with the State.” In addition, eight states have enacted laws prohibiting use of state funds to impact organizing campaigns, and five states are considering legislation based on the California provision, the government says.
The Court originally distributed the petition for conference last April before inviting the Solicitor General’s office to submit its views on the case. The Justices are not expected to consider the petition again before the Nov. 20 conference.
The SG’s brief is very well done and it’s a near certainty that cert. will be granted. It’s also a near certainty that the Ninth Circuit will once again be reversed, this time by a large majority of the Court. The SG makes the good point that it is employees’ Section 7 right to freely choose or reject unionization that is hindered and destroyed by state laws that gag employers and limit their non-coercive speech. Employees cannot properly exercise their right to choose or reject unionization without hearing both sides of the debate, but politicians in California have no interest in fostering a full debate on these issues — only a one-sided debate where unions speak and employers are silenced. The SG also makes the very good point that these state laws essentially mandate so-called “card checks,” and thereby halt NLRB-supervised secret ballot elections, even though both the NLRB and the Supreme Court recognize the superiority of such secret ballot elections. This principle was just recently re-affirmed by the NLRB in Dana Corp. & Metaldyne Corp., 351 NLRB No. 28, and it will surely be re-affirmed by the Supreme Court when it overrules the Ninth Circuit and strikes down California’s one-sided attempt at “labor law reform.”
Comment by Glenn Taubman — October 23, 2007 @ 5:21 pm
One troubling aspect of the fed. govt’s position (and there are many) is the idea that employers have some kind of constituent right of participation in a union campaign and/or election. They don’t. The decision whether to form a union is one that belongs to workers and workers alone.
Imagine if polluters had a “voice” in whether citizens could even form a coalition to advocate that the polluter clean up its act. Surely the polluter should have a voice in what clean-up policies are implemented–just as an employer should have a voice in collective bargaining–but no one would suggest that the polluter should have control over whehter the envoronmental coalition can even form in the first place. Similarly, employers have no right to determine whether workers organize as a union. The employers’ voice becomes relevant only in determining the working conditions of the workplace through collective bargaining.
Section 7 of the Act (29 USC 157) grants employees the right to join or form the union of their choosing. The purpose of the NLRA is not to protect employer freedom to resist unions, but rather to empower workers to form unions in the face of employer opposition. Lest there be any doubt, consider the Act’s statutory purposes in section 1–conveniently ignored by Bush and his current appointees to the NLRB.
Comment by James Shaw — October 24, 2007 @ 8:18 am
The SG’s brief is very well done and it’s a near certainty that cert. will be granted. It’s also a near certainty that the Ninth Circuit will once again be reversed, this time by a large majority of the Court. The SG makes the good point that it is employees’ Section 7 right to freely choose or reject unionization that is hindered and destroyed by state laws that gag employers and limit their non-coercive speech. Employees cannot properly exercise their right to choose or reject unionization without hearing both sides of the debate, but politicians in California have no interest in fostering a full debate on these issues — only a one-sided debate where unions speak and employers are silenced. The SG also makes the very good point that these state laws essentially mandate so-called “card checks,” and thereby halt NLRB-supervised secret ballot elections, even though both the NLRB and the Supreme Court recognize the superiority of such secret ballot elections. This principle was just recently re-affirmed by the NLRB in Dana Corp. & Metaldyne Corp., 351 NLRB No. 28, and it will surely be re-affirmed by the Supreme Court when it overrules the Ninth Circuit and strikes down California’s one-sided attempt at “labor law reform.”
Comment by Glenn M. Taubman — October 24, 2007 @ 8:49 am
Mr. Shaw needs to read the statute a little more carefully. Section 7 of the Act (29 USC 157) grants employees the right to join or form the union of their choosing, as he states, but it also gives employes the equal right … “TO REFRAIN FROM ANY AND ALL SUCH ACTIVITIES….” (emphasis added). As U.S. Dist. Ct Judge McCurn said in the Pataki case (the 2d Cir. case cited by the SG as the conflict in the circuits), “It is difficult, if not impossible, to see how an employee could intelligently exercise such [§ 7] rights, especially the right to decline union representation, if the employee only hears one side of the story–the union’s. Plainly hindering an employer’s ability to disseminate information opposing unionization ‘interferes directly’ with the union organizing process which the NLRA recognizes.” Doesn’t the right to refrain (non-association) deserve equal protection with the right to join (associate) with a labor union? Or are employees simply sheep who can’t be trusted to make up their own minds about the right to join or refrain after hearing all sides of the debate?
Comment by Glenn Taubman — October 24, 2007 @ 9:54 am
Mr. Taubman represents a right-wing ideological organization that advocates an anti-union message imbued with ideological hysteria (click his name and read for yourself). Among that hysteria is the mis-dis/information that employers somehow contribute to open debate about the value of unions.
Section 7 of the NLRA absolutely does guarantee employees the right to refrain from union activity. However, the Act does not give employers the right to scare and bully their employees so that they don’t join a union.
Taubman would have you believe that employers merely give employees their opinion about unions. In most cases, however, that’s not true. Instead, nearly every employer facing the prospect of a union campaign will force employees into “captive audience” meetings, which employees must attend or lose their job and listen to endless anti-union rhetoric. On the other hand, when a representative of the union comes to the workplace, the employer will call the police. This is not “disseminating information.”
Captive audience meetings are not the only abusive tactic used by employers. Half of employers threaten to close (fully or partially) the facility if employees organize. In 25% of union campaigns, an employee who supports the union is fired because of his union activity. Almost three-quarters of employers hire one of the consultants in the billion-dollar “union avoidance” industry that send “consultants” directly into the worksite to intimidate workers.
Does that sound like “debate” to you?
When employees vote against the union, it’s usually because the employer’s anti-union intimidation tactics (what the right disingenously labels “debate”) have scared employees. Either workers are afraid they will lose their job if they form a union, or else they are so fearful of employer-generated conflict that they vote against the union.
If employers were truly interested in speech, debate or opinions, they would invite union organizers into the workplace to speak to employees whenever the employer does. If the employer is going to hold employees captive (and let there be no doubt, the union has no such power to do so), why not give them both side of the story? If there is any imbalance of information, it is that employees are inundated with anti-union messages.
There are undoubtedly some workers opposed to unions. Some have personal beliefs that are incompatible with collective bargaining. Others have religious objections. Maybe some have had a bad experience. Nonetheless, national surveys reveal that the majority of workers would join a union if they could; and yet less than 10% do. That’s compelling evidence that employees’ free choice is being thwarted by imbalanced anti-union campaigns.
Dont be fooled. Taubman and his organization do not support “debate,” “choice,” “speech” or “freedom.” The effort to strike down laws that disallow spending public money on pro-or anti-union messages is nothing more than an effort by employers to regain the power to spend public money on their intimidating actions. It has little to nothing to do with free speech.
Comment by James Shaw — October 24, 2007 @ 4:45 pm
Neutrality agreements between an employer and a union do not just require an employer to “remain neutral”. It limits the rights of anti-union employees to voice their opinion in the same manner as the union and pro-union employees.
When my employer entered into a neutrality agreement with the California Nurses Association, the union was allowed inside our facility to hold meetings and distribute literature while serving free food. This gave the union near 24 access to the hospital.
I asked for the same access and was denied multiple times. I was forced to voice my opinion on the sidewalk outside of the hospital and even then was harassed by union organizers.
I support debate and freedom of speech and only ask for a platform to stand on equal to what the union receives. Employees who oppose unionization do not have the funds or the resources the unions do. Neutrality agreements such as the one that I and my coworkers were forced into take away our rights as employees by limiting our ability to educate and inform each other on our rights NOT to unionize.
Comment by Sherwood Cox, RN, CCRN — December 29, 2007 @ 1:23 am