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In an exciting plot twist, the National Labor Relations Board (NLRB) will soon be heading to federal court in an attempt to nullify another so-called “captive audience” law.
A decade ago, Oregon passed a statute, ORS 659.785, that prohibits an employer from discharging, disciplining, penalizing, or threatening any of the aforementioned acts if an employee declines to attend a meeting in which religious or political views will be communicated. The real point of the law relates to union organizing, which falls under political views. The state law would seem in direct violation of the National Labor Relations Act of 1935 (NLRA), which allows employers to express their views on unionization. This includes holding mandatory meetings during the workday, during which time employees are being paid.
The NLRB’s argument is that Oregon’s law interferes with an employer’s ability to communicate and that the NLRA protects noncoercive employer speech about unions from regulation by any governmental body. This was the basis of a suit filed by the U.S. Chamber when the law was first passed, although that suit was dismissed because no employer had yet suffered harm under the law.
However, the Chamber won a similar argument in the 2008 case Chamber v Brown, a case that dealt with a California law, AB 1889, which prohibited employers who received more than $10,000 in state grants or program funds per year to assist, promote, or deter union organizing. Reading between the lines, AB 1889 was really meant to prohibit employers from holding mandatory meetings. The Supreme Court agreed 7-2 with the Chamber and struck down California’s law, agreeing that it was preempted by the NLRA.
Stay tuned to see if the courts once again rule that the NRLA protects employer speech.