HIGH COURT KILLS CALIF.COMPANY NEUTRALITY LAW

Friday, June 20, 2008

(PAI)HIGH COURT KILLS CALIF.COMPANY NEUTRALITY LAW
By Mark Gruenberg
PAI Staff Writer

    WASHINGTON (PAI)--Labor’s campaign to ensure company neutrality in Californian organizing drives died June 19 in the U.S. Supreme Court.

    By a 7-2 margin, the justices killed an 8-year-old company neutrality law passed by the Democratic-run state legislature and signed by then-Gov. Gray Davis (D). They said the law ran afoul of the National Labor Relations Act and that it infringes upon employers’ free speech rights by letting virtually anyone sue for its enforcement.

    The ruling disappointed the state AFL-CIO. “Congress never intended to force the states to allow taxpayer dollars to be used to fight workers trying to have a union,” said Executive Secretary-Treasurer Art Pulaski. “The notion that Congress did this without saying it, as the court majority found, seems ridiculous. The fundamental right to join unions exists only on paper.”

    California justified the law, Assembly Bill 1889, by saying it governs the use of state taxpayers’ dollars. It said such dollars and their use must be strictly neutral.   But the U.S. Chamber of Commerce promptly sued to stop the law--and won lower court orders doing so until the issue could be decided for good. The chamber was joined by the Bush regime’s National Labor Relations Board. The law never took effect.

    The business lobby, which crowed over the court’s ruling, said the California law infringed on employer free speech during organizing drives and thus violated the Constitution. The Bush NLRB said California’s law interfered in an area left to federal law, labor relations. The Supreme Court majority agreed with both points.

    Associate Justice John Paul Stevens, writing the majority opinion, not only said the California law was pre-empted by the National Labor Relations Act--which says both employers and unions are supposed to have free speech during organizing--but that the California law wasn’t really neutral at all.

    “Despite (its) neutral statement of policy, AB 1889 expressly exempts ‘activities performed’ or ‘expenses incurred’ in connection with certain undertakings that promote unionization, including ‘allowing a labor organization or its representatives access to the employer’s facilities or property,’ and ‘negotiating, entering into, or carrying out a voluntary recognition agreement with a labor organization,’” Stevens wrote.

    Although the NLRA itself contains no express preemption provision” that would outlaw the California law, “We have held that Congress implicitly mandated two types of
pre-emption as necessary to implement federal labor policy. The first…is intended to preclude state interference with the National Labor Relations Board’s interpretation and active enforcement of the ‘integrated scheme of regulation’” of federal labor law. States can’t “regulate activity the NLRA protects, prohibits, or arguably protects or prohibits.’

    “The second, known as Machinists preemption, forbids both the NLRB and states from regulating conduct Congress intended “be unregulated because it was left ‘to be controlled by the free play of economic forces,’” Stevens added.

    Reviewing labor law history, Stevens said Congress, in the 1947 Taft-Hartley Act--which, though he did not say so, was approved by a GOP-RUN Congress over Democratic President Truman’s veto--“struck a balance of protection, prohibition, and laissez-faire in respect to union organization, collective bargaining, and labor disputes.’ “

    The California law broke that second pre-emption, Stevens said, because it regulated “a zone protected and reserved for market freedom” by Congress. “What
Congress left unregulated is as important as the regulations it imposed.”

    Associate Justices Stephen Breyer and Ruth Bader Ginsburg dissented. Breyer pointed out that firms could still use their own money against union organizing, and said the regulatory burden of the California law was not large.

    “California’s statute…does not seek to compel labor-related activity. Nor does it seek to forbid labor-related activity. It permits all employers who receive state funds to ‘assist, promote, or deter union organizing.’ It simply says to those employers: ‘Do not do so on our dime,’” Breyer wrote.

    “I concede that a federal law that forces states to pay for labor-related speech from public funds would encourage more of that speech. But no one can claim the NLRA is such a law. And without such a law, a state’s refusal to pay for labor-related speech does not impermissibly discourage that activity. To refuse to pay for an activity
--as here--is not the same as to compel others to engage in that activity,” Breyer said.

    Chicago labor law attorney Craig Becker, who worked on the case with the AFL-CIO, was not surprised by the ruling “given the composition of the court.”

    “But the decision shouldn’t be read too broadly. The court strikes the law down based on facts peculiar to it,” he explained. One was that “the enforcement scheme is onerous and could chill use of non-state funds” in organizing drives. The other reason was the lack of neutrality Stevens cited. A similar state law without those defects could pass muster, Becker added.

###