Chamber of Commerce v. Brown--Decision--NLRA Preempts

As predicted, in my summary of the case, the US Supreme Court reversed the Ninth Circuit and held, 7-2 (opinion by Stevens; dissent by Breyer and Ginsburg), that the National Labor Relations Act pre-empted statutes passed by the CA legislature that put increased burdens on employers who wanted to deter union organizing. Thus, this is a "pro-employer" or "pro-big business"-decision. This essay will review a few of the vital facts, before quoting from the official Syllabus of the Decision, which summarizes the case.

Relevant Facts

"Organizations whose members do business with California sued to enjoin enforcement of “Assembly Bill 1889” (AB 1889), which, among other things, prohibits employers that receive state grants or more than $10,000 in state program funds per year from using the funds “to assist, promote, or deter union organizing.” Cal. Govt.Code Ann. §§ 16645.2(a), 16645.7(a). The District Court granted the plaintiffs partial summary judgment, holding that the National Labor Relations Act (NLRA) pre-empts §§ 16645.2 and 16645.7 because they regulate employer speech about union organizing under circumstances in which Congress intended free debate. The Ninth Circuit reversed, concluding that Congress did not intend to preclude States from imposing such restrictions on the use of their own funds."

You should note one thing about the law. Though it prohibits employers from "assisting" or "promoting" union organizing, the real "teeth" of the law is in the "deterring" union organizing. The law, in a sense, is a misleading law; no employer that I am aware of wants to do lots of things to promote union organizing. Under the guise of balance, then, the law was passed. Here, for example, is the specific language of the law that was offensive to the Supreme Court (16645.2):

"The recipient of a grant of state funds, including state funds disbursed as a grant by a public agency, shall not use the funds to assist, promote, or deter union organizing."

Argument

The Court first mentioned how it was that the NLRA could pre-empt a law, since there is no pre-emption provision in that statute:

"The NLRA contains no express pre-emption provision, but this Court has held pre-emption necessary to implement federal labor policy where, inter alia, Congress intended particular conduct to “be unregulated because left ‘to be controlled by the free play of economic forces.’ ” Machinists v. Wisconsin Employment Relations Comm'n, 427 U.S. 132, 140, 96 S.Ct. 2548, 49 L.Ed.2d 396."

But the main focus of the Court's argument was to support the Machinists line of cases (spoken of here):

"Sections 16645.2 and 16645.7 are pre-empted under Machinists because they regulate within “a zone protected and reserved for market freedom.” Building & Constr. Trades Council v. Associated Builders & Contractors of Mass./R. I., Inc., 507 U.S. 218, 227, 113 S.Ct. 1190, 122 L.Ed.2d 565. In 1947, the Taft-Hartley Act amended the NLRA by, among other things, adding § 8(c), which protects from National Labor Relations Board (NLRB) regulation noncoercive speech by both unions and employers about labor organizing. The section both responded to prior NLRB rulings that employers' attempts to persuade employees not to organize amounted to coercion prohibited as an unfair labor practice by the previous version of § 8 and manifested a “congressional intent to encourage free debate on issues dividing labor and management.” Linn v. Plant Guard Workers, 383 U.S. 53, 62, 86 S.Ct. 657, 15 L.Ed.2d 582. Congress' express protection of free debate forcefully buttresses the pre-emption analysis in this case. California's policy judgment that partisan employer speech necessarily interferes with an employee's choice about union representation is the same policy judgment that Congress renounced when it amended the NLRA to preclude regulation of noncoercive speech as an unfair labor practice. To the extent §§ 16645.2 and 16645.7 actually further AB 1889's express goal, they are unequivocally pre-empted."

The Court concluded by dismissing the three major arguments made by the Ninth Circuit Court of Appeals:

"The Ninth Circuit's reasons for concluding that Machinists did not pre-empt §§ 16645.2 and 16645.7-(1) that AB 1889's spending restrictions apply only to the use of state funds, not to their receipt; (2) that Congress did not leave the zone of activity free from all regulation, in that the NLRB still regulates employer speech on the eve of union elections; and (3) that California modeled AB 1889 on federal statutes, e.g., the Workforce Investment Act-are not persuasive."

So ends the next chapter in the never-ending battle between management and labor in the legislature and the courts.

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