(November 27, 2007) Employers challenging a state law infringing upon their free speech rights scored a major victory last week when the U.S. Supreme Court granted their petition for certiorari in Chamber of Commerce v. Brown. 

The case challenges the mandates of AB 1889 (Cedillo; D-Los Angeles), a piece of legislation signed into law in 2000 by former Governor Gray Davis that 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 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 based on the fact that federal law pre-empts AB 1889.  The challenge gained another ally in late October when the U.S. Solicitor General filed a brief urging the U.S. Supreme Court to hear the case.  The U.S. solicitor general argued that AB 1889 is contrary to two decisions that the federal National Labor Relations Act (NLRA) pre-empts state law.
 
Prior court action in the challenge to AB 1889’s legality resulted in a three-judge panel of the Ninth Circuit Court of Appeals agreeing with CalChamber’s position.  Subsequently, a review by the full Ninth U.S. Circuit Court of Appeals overturned the earlier decision of the three judge panel and led to the petition for hearing before the U.S. Supreme Court. 

The high court is expected to hear arguments in March 2008 and issue a decision by late June.  

In briefings to the high court, 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.  The solicitor general also pointed 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.

Staff Contact: Erika Frank