Earlier this morning, the US Supreme Court heard oral arguments in Chamber of Commerce v. Brown, nicely recapped by the AP here with a transcript of the argument here.
The outcome of this case has strong implications for labor policy in Washington State in the next legislative session because this is the pending legal challenge that Governor Gregoire used to persuade labor leaders to back off their top legislative priority, a "Worker Privacy Act" bill, a national AFL-CIO model bill that would prohibit employer communication with employees about labor unions, among other things. The legal issue is whether this sort of state law is pre-empted by the National Labor Relations Act because the NLRA specifically permits this kind of employer communication.
The California enactment at issue in the Brown case prohibits contra-union communications for employers who receive state funds, who use any portion of their overhead that could be traced to the state funds to deter union organizing. Although Washington unions tried a similar approach in 2007 with respect to the aerospace industry and tax incentives, the 2008 proposal would have been much broader, applying to all employers regardless of any connection with public funds or economic incentives.
Seeing the lobbying equivalent of thermonuclear war developing between business and labor over this proposal, I think the Governor saw little logic in seeing the state become the first in the nation to pass this broad form of prohibition on employer speech when it is quite possible the Supreme Court will strike down California's narrower law, and do so with language that ought to doom broader state efforts.
That said, two things are certain. The first is, if the Supreme Court upholds California's law as permissible under the NLRA, and the state's political climate is approximately what it is now, we will see the "Worker Privacy Act" return in 2009 with wind behind it. The second is, if the Supreme Court strikes down California's law as pre-empted by the NLRA, and the state's political climate is approximately what it is now, we will see the "Worker Privacy Act" return in 2009, albeit with legal baggage.
Under the first scenario, the business community will point out that California's law was totally different and under the second scenario, the labor unions will argue that California's law was totally different. The denominator common to both alternatives is that it depends what the court does and how broadly it does it.
The oral argument suggested a court divided along traditional liberal-conservative lines, with a surprise or two possible in the middle. Law professor Paul Secunda, who has written extensively in this area and recapped the argument today at his Workplace Prof Blog and at SCOTUSblog, predicts, against his own admitted policy preference and view of the law, a 6-3 holding striking down the California law, with Justice Scalia leading the charge.
Even so, Professor Secunda notes his view that even a pro-employer holding in Brown should not be heard as the death knell for "Worker Privacy Act" type legislation. I'm not so sure. Consider this exchange during the Brown argument between Justice John Paul Stevens, thought to be the court's most liberal member, and attorney Michael Gottesman, representing California:
JUSTICE STEVENS: Am I correct in assuming that if the State of California had its labor relations agency make it an unfair labor practice to engage in this employer speech described here, that that would be pre-empted?
MR. GOTTESMAN: Employer speech with its own money?
JUSTICE STEVENS: YES
MR. GOTTESMAN: Of course that would be pre-empted, absolutely pre-empted.
Yet in it basic respects, thats what the "Worker Privacy Act" attempts. But whether the court's Brown decision, due by the end of its term this July, settles the question in Washington remains to be seen.
