Labor
Law-Federal Preemption-Preemption of State Law Prohibiting Use
of State Funds by Private Employers in Union Organizing
Campaigns. A California statute, enacted in 2000,
prohibits private employers receiving state grants (of any
amount) or state program funds (in excess of $10,000 per annum)
from using that money "to assist, promote, or deter union
organizing." The Supreme Court granted certiorari in Chamber
of Commerce v. Brown, No. 06-939, to resolve a conflict
among federal courts on the question of whether such a
restriction is pre-empted by federal labor law.
The Chamber of Commerce sought and received
declaratory relief in the district court, which held the
relevant sections of the California statute invalid under the
principles of Lodge 76, Int'l Ass'n of Machinists & Aerospace
Workers v. Wis. Employment Relations Comm'n, 427 U.S. 132
(1976) (establishing broad preemption of state regulation of
conduct Congress intended to leave unregulated), reasoning that
non-coercive employer speech concerning organization was
specifically protected by the NLRA, 29 U.S.C. §158(c). A panel
of the Ninth Circuit affirmed, but the court sitting en banc
reversed, placing it at odds with the two other Courts of
Appeals (the Second and Seventh Circuits) that have addressed
the issue, both finding preemption under similar circumstances.
This case is of great significance to all
employers. A number of other states are currently considering
legislation similar to the California statute at issue here, the
viability of which depends directly on the outcome of this case.
More broadly, affirmance could open the door to any state or
local government wishing to regulate, through its spending
power, employer speech with respect to unionization, and thus
frustrate federal labor policy favoring free, non-coercive
debate between management and employees. Absent an extension,
amicus briefs in support of petitioner will be due on January
11, 2008, and amicus briefs in support of the respondent will be
due February 11, 2008. Any questions about this case should be
directed to Andrew Tauber (202-263-3324) in our Washington, D.C.
office.
Earlier this month, the Supreme Court also invited the Solicitor
General to file a brief expressing the views of the United
States in Exxon Mobil Corp. v. Doe I, No. 07-81. The
question presented is whether the collateral order doctrine
permits immediate appeal of a district court's denial of a
motion to dismiss under the political question doctrine when a
lawsuit challenges the activities of a foreign government, and
the Executive warns that the litigation itself, and not just the
effects of a final judgment, would risk a potentially serious
adverse impact on significant foreign policy interests of the
United States.
