U. S. SUPREME COURT ISSUES A HUGE BLOW
TO LABOR UNION POLITICS:
WILL CONGRESS RESPOND BY BAILING OUT THE UNIONS?
By: Jeffrey A. Risch, Esq.
Union sponsorship of the much ballyhooed Employee Free Choice Act now pending in Congress – where unions, not employees, would be allowed free rein to organize outside the protections afforded by National Labor Relations Board secret ballot elections – is not the only political measure unions support to give them an edge in gaining new dues-paying members. For years unions have successfully lobbied state and local governments to enact various forms of so-called “neutrality” regulations, typically applied to employers who receive public monies. These neutrality provisions may require anything from “card check” recognition of unions (the very object of the Employee Free Choice legislation), to granting unions access to employer premises for organizing. Some of these regulations go so far as to effectively put a gag order on employers, prohibiting them from saying anything bad about the union (even if the union is corrupt and in trouble with the law, as many are). Nowhere have unions had more political success pushing for these types of state and local government mandates than in California. However, on June 19 the U.S. Supreme Court surprisingly struck down a California state law that unreasonably interfered with employers’ right to lawfully oppose union organizing. The question now is whether Congress will respond to union political activism in an election year to reverse this decision, stripping employers of what is otherwise a great court victory for their right to speak out against unions.
The California law in question was Assembly Bill 1889, which barred employers receiving state grants or more than $10,000 per year in state program funds from using the funds to “assist, promote, or deter union organizing.” On its face AB1889 appears neutral and merely aimed at preventing state monies from being used either for or against union organizing. In reality, however, this law was no different than many others supported by unions to pave the way to unopposed organizing. The devil is typically in the details with these laws, as it was with AB1889’s placement of ridiculously burdensome accounting requirements on employers to demonstrate, for instance, that allocation of overhead (including “salaries of supervisors and employees”) was not in any way involved in union-related advocacy. The law allowed any taxpayer, including any union, to sue suspected violators for treble damages and attorney’s fees, among other relief. Moreover, the seemingly neutral AB1889 actually created a safe harbor that allowed for monies going to at least two classic union “neutrality” terms: (1) giving unions access to the workplace; and (2) voluntarily recognizing unions without a secret ballot election (i.e. card check recognition).
Thankfully, unlike so many state and local governments (i.e. Illinois) that have supported similar laws throughout the country, the Supreme Court saw the union bill for what it was – a state-sponsored union “neutrality” regulation imposed upon employers. In striking down the law the Court majority noted that over 60 years ago, in 1947, Congress amended federal labor law by adding Section 8(c) to protect non-coercive free speech about unions and organizing. The Court said this provision “manifested a congressional intent to encourage free debate on issues dividing labor and management…” In other words, Congress gave employers the right back in 1947 to speak out against unions, so long as they did not coerce employees or otherwise interfere with their free choice. Not surprisingly, liberal Justices Brayer and Ginsburg dissented from the Court’s opinion, buying the oft-used union argument that these kinds of laws do not impermissibly “regulate” employer conduct.
In an election year such as this, the victory for employers represented by this recent decision may be short-lived. Unions, of course, will despise the Court’s decision because it cuts through the sham position they have successfully pitched to state and local governments – that prohibited direct regulation of employer opposition to unions differs somehow from their indirect but equally effective infringement of employer rights. Employers can expect to see new legislation in Congress aimed at modifying Section 8(c) of the National Labor Relations Act for the first time since 1947. Those who oppose the Employee Free Choice Act (perhaps more appropriately named the Support for Organizing Unions’ Preferences, or “SOUP” Act) should be equally prepared to oppose a new wave of union political measures aimed at undermining this U.S. Supreme Court decision upholding the fundamental right of employers to lawfully oppose and speak out against unions.
Attorney Jeffrey A. Risch is the author of this article. Mr. Risch is a shareholder with the law firm of Wessels Pautsch & Sherman, P.C., a management-side labor and employment law firm with offices throughout the Midwest. The referenced case is Chamber of Commerce v. Brown, Supreme Court Case No. 06-939. Mr. Risch may be contacted at 630 377-1554.