Stephanie Ferguson
Director, Global Employment Policy & Special Initiatives, U.S. Chamber of Commerce
Published
March 04, 2020
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,ORS659.785, 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 caseChamber 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.
About the authors
Stephanie Ferguson
Stephanie Ferguson is the Director of Global Employment Policy & Special Initiatives. Her work on the labor shortage has been cited in the Wall Street Journal, Washington Post, and Associated Press.
