Affects Employer Speech on Union Organizing

(November 6, 2007) An ongoing court challenge of a state law infringing on employer free speech rights gained a new ally in late October when the U.S. solicitor general urged the U.S. Supreme Court to consider the case.

The California Chamber of Commerce joined the U.S. Chamber of Commerce and other business groups in urging the U.S. high court to review the case questioning the state law, which restricts employer actions and communications regarding union organizing.

The restriction is part of AB 1889 (Cedillo; D-Los Angeles), signed into law in 2000 by former Governor Gray Davis.

AB 1889 forbids private employers who receive state funds in excess of $10,000 from engaging in any activity or communications to assist, promote or deter union organizing, unless the employer can prove that the money used for such activity did not come from the state.

The CalChamber and others argued that federal law pre-empts AB 1889. A three-judge appeals court panel agreed with the business position.

In September 2006, however, the full Ninth U.S. Circuit Court of Appeals overruled the earlier decision and upheld the state law.

U.S. Solicitor General

In its brief, the U.S. solicitor general argues that AB 1889 is contrary to two decisions that the federal National Labor Relations Act (NLRA) pre-empts state law.

The first found that federal law forbids states from regulating activity the NLRA explicitly or arguably protects or prohibits. The second case prevents states from regulating activity Congress intended to leave subject to the natural result of economic forces.

The solicitor general argues that AB 1889 conflicts with both a longstanding congressional intent to permit “robust debate” during union organizing drives, as well as the generally exclusive authority of the National Labor Relations Board to regulate employer speech during such campaigns.

Resolving Conflict

The solicitor general also points out that there is a conflict between the Ninth Circuit ruling and a recent decision of the Second U.S. Circuit Court of Appeals, which struck down portions of a New York law that is similar to AB 1889.

In addition, eight states have enacted laws prohibiting use of state funds to affect organizing campaigns, and five states are considering legislation based on the California provision, according to the solicitor general.

It is likely the high court will decide whether to take the case within the next several weeks. If it grants review, it will hear the case next year.

Staff Contact: Erika Frank