April 2, 2010 Volume 111 Number 7

Federal court to hear challenge to Oregon’s Worker Freedom Act

By DON McINTOSH, Associate Editor

U.S. District Court judge Michael Mosman will hear from both sides April 9 in a business group lawsuit that seeks to strike down worker freedom of conscience legislation passed by the Oregon Legislature.

The Worker Freedom Act, which took effect Jan. 1, makes it illegal for Oregon employers to punish workers for refusing to take part in mandatory workplace meetings in which employers discourage unionization. Those sessions, which both sides in the lawsuit refer to as “captive audience” meetings, are a primary tool employers and anti-union consultants use to defeat union campaigns.

The U.S. Chamber of Commerce, along with its affiliate Associated Oregon Industries (AOI), filed the federal lawsuit Dec. 22, and named Oregon Labor Commissioner Brad Avakian and Portland-headquartered Laborers Local 296 as defendants.

The Worker Freedom Act applies to “meetings or communications” to communicate an employer’s religious or political opinions, but its applicability to union campaigns is the central issue for both sides.

AOI and the Chamber argue that the Worker Freedom Act is pre-empted by the National Labor Relations Act, and that the new law would unconstitutionally restrict employers’ First Amendment rights of free speech.

The National Labor Relations Act governs the process by which most private-sector workers unionize. The U.S. Supreme Court has ruled that the act pre-empts, or overrides, any state laws that try to cover the same ground.

Avakian’s legal defense is being handled by the Oregon Department of Justice, and Local 296 is represented by attorneys David Rosenfeld of Alameda, California, and Giles Gibson of Portland. Attorneys for the defense, along with five labor law professors who filed a friend-of-the-court brief, say pre-emption wouldn’t apply to a law like the Worker Freedom Act. The State of Oregon isn’t saying employers can’t hold meetings to express views on unionization, as federal law allows. The state law just says they can’t threaten, fire, or otherwise discipline workers for refusing to participate. And, they argue, it’s well-established that states may limit what an employer may fire a worker for.

AOI and the Chamber also claim, in written arguments submitted to Judge Mosman, that the law is “a flat ban on a broad category of speech before it occurs.”

Not so, respond Oregon Department of Justice attorneys: The Worker Freedom Act restricts conduct, not speech. The right to fire a worker isn’t protected by the First Amendment. And plaintiffs haven’t explained why employers “cannot communicate their views to their employees without compelling their attendance by threats or punishment.”

Marquette University law professor Paul Secunda, one of the five signers of the amicus brief, said the free speech arguments are likely to hold little weight. Instead the case will probably be decided on whether or not the Worker Freedom Act is pre-empted by the NLRA.

The judge could also dismiss the suit on a technicality, however, leaving the legal issues undecided. Oregon Department of Justice attorneys argued that AOI and the Chamber were wrong to sue Avakian, since he hasn’t enforced and doesn’t intend to enforce the law. As spelled out in the law, enforcement is by private legal action: Employees fired or otherwise disciplined for refusing to participate can sue for triple damages and attorney’s fees. Marcia Ohlemiller, Avakian’s legal policy adviser, explained that to attorneys for AOI and the Chamber the day before the suit was filed. But they told her that in order to proceed with the lawsuit, they would need to name a defendant that was part of the State of Oregon.

Laborers Local 296 is a similarly curious defendant, sued largely because it refused to assure AOI and Chamber attorneys that it wouldn’t encourage employees at a local cooked meat processor to file individual lawsuits under the Worker Freedom Act. [For details, see related article, BrucePac union campaign becomes poster child for battle over captive audience meetings.]

Also in question is whether AOI and the Chamber have legal standing to challenge the law: No workers have yet sued any employers under the new law, so it could be hard to show that any employer has been affected.

Secunda said it’s unlikely that there will be a conventional trial in the case, because there’s no serious disagreement about the facts. Instead, lawyers for both sides get several opportunities to make written and oral arguments to the judge. Plaintiffs are asking for the judge to issue a quick ruling striking down the law, while defendants are asking the case be dismissed.

Whichever way it goes, the case will have national ramifications, said law professors in the amicus brief: “The decision in this case will have wide-ranging consequences for tens of millions of American workers and their ability to exercise a free choice concerning whether or not they wish to join a labor union.” Signers include William Gould, a former chair of the National Labor Relations Board, and local labor law professor Henry Drummonds of Lewis & Clark Law School.

The AFL-CIO has sought to pass versions of the law in several states, but so far, Oregon is the only state to pass it. It was the top priority of the Oregon AFL-CIO in the 2007 and 2009 legislative sessions. Broken promises to support a similar bill caused a rift between the Washington State Labor Council, AFL-CIO, and some of that state’s top Democrats. .

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