By Noah Wass
Under the leadership of Trump appointees, the National Labor Relations Board (NLRB) is suing to overturn an Oregon law that gives workers the right to skip anti-union captive audience meetings.
In a Feb. 7 lawsuit in U.S District Court against the State of Oregon, the NLRB argues that the Oregon law is preempted by the National Labor Relations Act, which the NLRB says protects an employer’s right to discipline employees for failing to attend anti-union meetings. According to the Board, the Oregon law also violates an employer’s protected right to free speech.
The Worker Freedom Act—passed in 2009 with strong union backing—prohibits Oregon employers from disciplining or threatening to discipline workers for not attending anti-union meetings or meetings where an employer’s religious or political views are expressed. During union organizing campaigns, it’s extremely common for employers to hold so-called “captive audience” meetings, mandatory-attendance meetings in the work- place at which outside union-busting consultants try to scare workers into voting against a union.
It’s not the first time the Worker Freedom Act has faced a court challenge. In December 2009, Associated Oregon Industries and the U.S. Chamber of Commerce sued Laborers Local 296 and Oregon Labor Commissioner Brad Avakian to prevent the law from taking effect. The business groups argued that the law was pre-empted by federal labor law and violated employers’ First Amendment rights. A judge dismissed the lawsuit, ruling that the business groups had failed to show they were harmed by either of the defendants.
In an April 7 response to the NLRB, Oregon Attorney General Ellen Rosenblum’s office asked that the new lawsuit be dismissed for similar reasons because the state itself could not have caused the alleged harm. The Worker Freedom Act allows workers to sue their employer as a private individual. The state has no power to enforce it or bring a lawsuit on any worker’s behalf.
The NLRB replied May 21 that the state harmed the NLRB because it wrote and passed the law. According to the filing, the National Labor Relations Act gives the NLRB the ultimate authority to regulate and protect an employer’s free speech concerning unionization. The NLRB also cites the pre-emption doctrine, which holds that state law, where it conflicts with federal law, must bow to federal law. To fix this conflict, the NLRB wants the Worker Freedom Act declared invalid when it applies to meetings where unions are the subject.
Labor attorney David Rosenfeld, who was involved in the legal defense during the 2009 lawsuit, says the new case is quite similar.
“Oregon is saying clearly, ‘We don’t enforce the law, so don’t come asking us to do something where all we did was pass the law,’” Rosenfeld say. “You may think its unconstitutional, but until you are actually harmed or somebody sues you, the courts shouldn’t get involved. I’m not the district judge, but I think that the state is right here. If the state doesn’t enforce the law, why sue the state?”
A hearing is scheduled for July 14 via telephone before U.S. District Court Judge Mustafa T. Kasubhai.
For now, the Workers Freedom Act remains in effect and Oregon workers may still sue their employers should they be threatened or disciplined for not attending an anti-union meeting.