Liberty, Liberalism, and Neutrality: Labor Preemption and First Amendment Values

Source: Harry G. Hutchison, Seton Hall Law Review, Vol. 39 no. 3, 2009

From the LexisNexis summary:
… On the basis of its interpretation of the California statute and its view of the doctrine of preemption, the Ninth Circuit decided that the State of California was free to prevent certain employers from using state funds to assist, promote, or deter union organizing, against the contrary claim that NLRA section 8(c) protects employers’ speech rights. … Though NLRA preemption is vital to the Ninth Circuit’s analysis in Chamber of Commerce and the Supreme Court’s subsequent reversal, perplexing questions are aroused by the Court of Appeals’s dismissal of the plaintiffs’ freedom-of-expression claims. … Garmon and Machinists Preemption When regulating conduct and actions that are linked to organizational activities, the NLRB’s “primary concern is to protect the statutory rights of employees, but in doing so it must balance those rights against the rights of the employer and, to a lesser extent, those of the union.” … Despite vast and depressing evidence demonstrating that unions – like most cartels – “raise wages in ways that misallocate labor and reduce social output,” advocates of increased state power as a vehicle for expanding union power implore courts to reinterpret the preemption doctrine in a manner that permits states to encourage unionization and prohibit certain kinds of employer speech. … Though it is doubtful that this viewpoint reflects the perspective of most Americans or most workers, taken as a whole this perspective coincides with the conclusion that workers and employers’ constitutional rights to free speech, including freedom for employer speech, depend less on the Constitution and more on state action aimed at diminishing employers’ property rights and expanding union rights. … Consistent with this thesis but inconsistent with the statute’s asserted defense ensuring state neutrality, AB 1889 exempts from the statute’s restrictions employer-recipient expenditures connected (1) to giving a union access to the employer’s property (workplace), and (2) to voluntarily recognizing a union as the bargaining representative of employees. … Because the contested provisions of AB 1889 do not “have a narrow scope or other element indicating that the statute is unrelated to broader regulation,” the provisions are regulatory and thus may be preempted by the NLRA. … For a number of reasons, Justice Breyer could not find evidence that the contested spending limitation amounts to regulation that the NLRA preempts, which leads to several observations: (1) the State is free to refuse to pay for an activity it dislikes; (2) the congressional parameters for free debate and a robust exchange of ideas about the costs and benefits of unionization remain intact; (3) the State of California is neither participating in nor regulating the labor market in impermissible ways; (4) the statute is tolerably neutral on the record before the Court to enable a lower court to conclude that compliance burdens are not fatal; and (5) the First Amendment interest of employers is inadequate to warrant constitutional protection.

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