April 16, 2010 Volume 111 Number 8

Judge expresses doubts about Worker Freedom lawsuit

By Don McIntosh, Associate editor

For the two business groups seeking to overturn Oregon’s Worker Freedom Act, an April 9 court appearance seemed to go poorly.

In the hearing before federal Judge Michael Mosman, attorneys for Associated Oregon Industries (AOI) and the U.S. Chamber of Commerce never got to explain in detail why they think the law is preempted by the National Labor Relations Act, or say much to support their contention that it chills the First Amendment free speech rights of employers. Instead they spent most of the hour in court defending their decision to name Oregon Labor Commissioner Brad Avakian and Portland-headquartered Laborers Local 296 as defendants in the case.

Lead attorney Scott Oborne — from the Portland office of anti-union law firm Jackson Lewis — seemed hard-pressed to show that the law has concretely harmed any employer, or that the harm was coming from those two defendants.

The Worker Freedom Act, which took effect Jan. 1, makes it illegal for Oregon employers to fire or otherwise penalize workers for refusing to take part in employer-led anti-union meetings. In other words, workplace anti-union meetings must be voluntary. But enforcement of the law is to be by employee lawsuit, not legal action by Oregon’s labor commissioner or unions like Local 296. Workers fired for refusing to attend anti-union meetings can sue and win reinstatement, back pay, triple damages and attorney’s fees.

No such suits have been filed yet, and when he opened the hearing, Judge Mosman got right to the point. His primary concern would be “judiciability” — in other words, whether the lawsuit was suitable for court. Mosman questioned each side, cutting through lawyerly arguments.

Oborne, the business group attorney, built his case around a campaign by Local 296 to unionize a Silverton-headquartered cooked meat processor, BrucePac. BrucePac is a member of AOI and also a client of Oborne’s firm, Jackson Lewis. In a written statement, BrucePac’s CEO said the company paid good money (to Jackson Lewis, presumably) to develop an anti-union campaign that relies on expressing its viewpoint in mandatory meetings. If it can’t hold mandatory meetings, it forfeits a crucial element of its communications strategy.

So how did AOI and the Chamber end up suing Avakian and Local 296? As deconstructed by Mosman, the justification went like this: If BrucePac were to hold a mandatory meeting, a worker might refuse to attend and be disciplined. Then probably Local 296 would file a complaint with Avakian, demanding that he enforce the law. Avakian would probably go to the Oregon Department of Justice (DOJ) to get a legal opinion as to whether a separate statute requires him to enforce the Worker Freedom Act, and the DOJ would probably tell him he had to enforce it, which he would then do.

In other words, Judge Mosman suggested, Oborne was presenting a string of hypotheticals.

“Why can’t you wait until a couple of ‘probably’s are eliminated before you bring this to court?” Mosman asked.

Because, Oborne said, employers are feeling the impact of the law right now.

To back that up, Oborne read a passage from the April 2 issue of Northwest Labor Press, which described mandatory meetings as “a primary tool employers and anti-union consultants use to defeat union campaigns.”

“Our speech is being chilled,” Oborne said.

“There’s no First Amendment right to require others to listen to speech,” countered John Dunbar, attorney for the Oregon Department of Justice, which is representing Commissioner Avakian.

David Rosenfeld, lead attorney for Local 296, echoed that argument, and called it “pure speculation” for the plaintiffs to predict what the union would do. Rosenfeld wouldn’t disavow Local 296’s right to inform workers about the Worker Freedom Act, or help them file suit if an employer violated the Act. But it would be up to the union whether to do those things, Rosenfeld said, and AOI and the Chamber have no way of knowing what Local 296 might do. AOI and the Chamber might just as well pick a couple of pro-union workers and sue them, Rosenfeld said, on the grounds that the workers might sue if their employer disciplined them if they walked out of an anti-union meeting.

If AOI and the Chamber can’t sue Avakian, Mosman asked Dunbar, then who do they sue to overturn the law? Answer: They might have to wait until one of their members is actually sued by a worker for violating the law.

The case is being watched closely by labor and business groups. In court, Oregon AFL-CIO President Tom Chamberlain observed from the front, while representatives of the Oregon Farm Bureau watched from the back. Attorney Robin Conrad of the National Chamber Litigation Center listened to the proceedings by speaker phone.

Mosman didn’t say how he will decide, but told lawyers he would issue a ruling in writing in short order. He could rule on pre-emption or free speech grounds, upholding or striking down the law; the losing side would almost certainly appeal to the Ninth U.S. Circuit Court of Appeals. Or he could dismiss the suit on a technicality, such as the argument that no employer has suffered harm from the law, and even if they have, Avakian and Local 296 didn’t do anything to merit being sued, attorneys argued.

In the meantime, the Worker Freedom Act is still in effect. Any employer who disciplines a worker for saying “no” to an anti-union meeting would open themselves up to a lawsuit.


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