US Supreme Court Strikes Down Cali Union Neutrality Law

On a morning when our own state Supreme Court got it badly wrong on an important employment case, good news from the other Washington: the US Supreme Court struck down, 7-2, a California law imposing union neutrality requirements on employers doing business with the state. 

This long awaited decision, Chamber of Commerce v. Brown, ought to tamp down the top legislative priority of unions here in Washington to establish a broader prohibition on employer speech than what even California envisioned.   Indeed, Governor Gregoire cited the pending decision of the court in this case as the primary reason for asking the labor side to withdraw its bill in 2008.

Writing for the majority, Justice John Paul Stevens -- conventionally thought to be the most liberal of the high court justices -- held that the federal labor policy contained in the National Labor Relations Act (NLRA) preempts the attempt of California to impose a rule that prohibits employers receiving state funds from using the funds "to assist, promote, or deter union organizing." 

The NLRA preemption doctrine that captured the court's attention forbids states from regulating conduct "that Congress intended to be unregulated because left to be controlled by the free play of economic forces."  Noting its view under prior case law that "Congress struck a balance of protection, prohibition, and laissez-fair in respect to union organization, collective bargaining, and labor disputes," the court determined California's law attempted to regulate within "a zone protected and reserved for market freedom."

The court further elaborated on the inherent right of employers to engage in "free debate on issues dividing labor and management", that this First Amendment right is enshrined in the NLRA, and that it reflects a policy decision "favoring uninhibited, robust, and wide-open debate in labor disputes" involving "freewheeling use of the written and spoken word."   The constitution, buttressed by the NLRA, provides this freedom; states cannot by legislation or regulation take it away.

The state AFL-CIO proposal in Washington is broader than the invalid California law.  It doesn't hinge on the receipt or use of state funds by an employer.  It bluntly prohibits any employer speech about union matters if it can be viewed as a "required" communication -- in a staff meeting, perhaps in a company-wide e-mail, and so on.  It is enforced (like California's statute) by a strong litigation deterrent attempting to make the state's judicial branch the ultimate referee of permissible workplace speech.

But the high court was clear today:  States are not free to regulate what Congress left unregulated in the NLRA.  "When Congress has sought to put limits on advocacy for or against union organization, it has expressly set forth the mechanisms for doing so."  The law "calls attention to the right of employees to refuse to join unions, which implies an underlying right to receive information opposing unionization."  And the NLRA "expressly precludes regulation of speech about unionization" so long as the communications do not threaten or promise anything to the employee. 

Our state unions may be busy between now and the 2009 legislative session testing arguments to distinguish their proposal from California's overreach.  But today's decision should put an end to Washington's union neutrality bill.

(Cross-Posted at the Olympia Business Watch blog)