Showing that the strength of one's argument is often inversely proportionate to the excess of one's rhetoric, the principal pushers of the anti-employer gag rule have taken to the blogosphere this week with some surprising statements in an effort to rehabilitate their troubled, and troubling, "top priority": the attempt to take away employers' long-held, federally protected right to communicate with workers during labor organizing campaigns.
Of course, readers would have to think back some to remember that's what this national AFL-CIO model bill is all about -- employer opposition to union organizing -- because beyond secreting "labor or other mutual aid organizations" within the definition of forbidden speech on "political matters," the bill is sold as an innocuous protection against forced indoctrination of political or religious opinions.
The proponents don't talk much about that core purpose anymore -- and for good reason. Federal labor law has long protected an employers' right to engage in free speech, even in a called staff meeting, about labor organizing, so long as the speech is non-coercive and makes no promise of benefit or threat of reprisal for the employee's decision whether to unionize, and not held within 24 hours of a union election. As a result, states are not free to regulate or prohibit this speech.
So what are they talking about?
First, the opinion letter from the Attorney General's office on February 17th reaching the same conclusion just stated -- that the bill's proposed prohibition on employer free speech on union matters is pre-empted by federal labor law and thus unconstitutional. Labor dismisses it as an "informal" opinion -- as if "informal" were a synonym for "incorrect". They also cite its brevity and have gone so far as to propose it was issued as a matter of politics.
But its informality is a process issue, and its brevity due to a legal question on pre-emption -- strip away the politics -- that is not particularly difficult. And speaking of politics, it is an unfair inference to float about at the senior Deputy Solicitor General who authored the opinion, one who has served under administrations from both parties and whose biggest case recently is probably the state's successful defense of his former boss's contested 2004 election.
Second, they claim the AG Office's opinion is refuted by their own lawyers, citing two instances: remarks by Connecticut Attorney General Richard Blumenthal in testimony to that state's General Assembly on this bill in 2007, and remarks by Clinton-era NLRB general counsel Fred Feinstein, evidently to the same body, albeit in a different year. (CT rejected the bill, by the way). But like this bill in general, there's more here than meets the eye:
Blumenthal's quoted remarks are that because "no cases specifically pre-empt 'captive audience' state laws," this proposal is not pre-empted. But that's easily refuted. No cases pre-empt state laws because no state has passed this law. Even New Jersey, which came close in 2006, struck the pre-empted reference to "labor or other mutual aid organizations" in the definition of "political" matters. These remarks also came before the US Supreme Court's summer-2008 Brown decision, which as we all know struck down a pro-union California law on the grounds that it imposed upon the sphere of federally protected employer speech -- just like the gag rule.
(Incidentally, while no state has passed such a law, Milwaukee County, Wisconisn, passed a local ordinance in 2000 providing, among other things, that "no employee ... shall be required to attend a meeting or event that is intended to influence his or her decision in selecting or not selecting a bargaining representative." The 7th Circuit US Court of Appeals struck this ordinance down in 2005 stating bluntly, "[f]ederal labor law allows employers to require their employees to attend meetings, on the employer's premises and during working time, in which the employer expresses his opposition to unionization.")
Feinstein's claim is more lawyerly, but equally problematic. He is quoted as saying laws like the gag rule fall under the "deeply rooted local concern" authority of state law, an exception to one of two federal pre-emption doctrines ("Garmon" pre-emption). But the purpose of this exception is to protect, and indeed all of Feinstein's examples come from, criminal and tort issues (trespass, false arrest, defamation, emotional distress, and so on).
But unlike employer free speech on union issues, criminal and tort laws have generally been the domain of states. Even then, the last time our state used the "local concerns" argument to try to save our state's strikebreaker law (State v. Labor Ready; 2000), the Court of Appeals didn't buy it, holding the law pre-empted despite the state's asserted interest in preserving local jobs and avoiding violence during a labor dispute.
Moreover, there is a second pre-emption doctrine ("Machinists" pre-emption) under which the California law was struck down, and which the AG Office's opinion cited as applying to this bill. As the US Supreme Court said last summer, "California plainly could not directly regulate non-coercive speech about unionization by means of an express prohibition."
Which, finally, brings the proponents to the California case: they attempt to get around it by claiming the gag rule "contains no ban on employer speech either directly through its provisions or indirectly through its enforcement scheme ... it is the act of discharging or disciplining or threatening to do so -- not employer speech -- which is banned."
This rebranding of the bill is creative, and lawyerly, but just read the bill's title: "AN ACT Relating to prohibiting certain employer communications about political or religious matters." This assessment comes from the Office of the Code Reviser -- hardly a band of rabid partisans. Bill titles not indicative of the law? Okay, read the bill: Section 3(1): "An employer may not require an employee to attend a meeting, or listen to, respond to, or participate in, any communication...". (And note the similarity to the language in the invalidated Milwaukee ordinance above).
The bill regulates the time, place, and manner by which an employer may communicate with its employees in the ordinary course of the work day, and disallows employer communications about content the state disapproves. Further, by way of its litigation deterrent, it interposes the state judiciary as the workplace referee for what is and isn't sufficiently political or religious as to violate the ban.
That's pre-empted.
