The federal government has asked the Court to consider a challenge to a California law barring private employers who receive state money from using the funds to influence union organizing campaigns. The recommendation, filed on Friday in support of a Chamber of Commerce petition, argues that the National Labor Relations Act preempts the California statute, and that an en banc panel of the Ninth Circuit created a circuit split in holding otherwise. Click here to read the government brief, and the following links to read the petition, brief in opposition, and reply.

The law in question, enacted in September 2000, prohibits entities that receive state money from using the funds to “assist, promote, or deter union organizing,” including “any attempt of an employer to influence the decision of its employees” over whether to support or join a labor union. The Chamber of Commerce had successfully challenged the law in district court and before a Ninth Circuit panel before the en banc ruling.

The government’s brief contends the California law runs afoul of two NLRA preemption doctrines. The first, recognized in San Diego Building Trades v. Garmon (1959), forbids states from regulating activity the NLRA explicitly or arguably protects or prohibits. The second, established in Lodge 76, International Association of Machinists v. Wisconsin Employment Relations Commission (1976), bars states from regulating activity Congress intended to leave subject to the natural result of economic forces.

The Solicitor General argues that the California law 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 government also argues that, because the law does not cover spending by employers who voluntarily recognize unions, the law effectively encourages employers to forego their right to require unions to first prevail in a Board-certified election.

In addition to its preemption argument, the government also recommends granting the petition to resolve a conflict with a recent Second Circuit decision. According to the Solicitor General, that court struck down portions of a similar law in Healthcare Association of New York State, Inc. v. Pataki (2006), which found a state “cannot leverage its money to affect” employer activity “beyond [its] dealings with the State.” In addition, eight states have enacted laws prohibiting use of state funds to impact organizing campaigns, and five states are considering legislation based on the California provision, the government says.

The Court originally distributed the petition for conference last April before inviting the Solicitor General’s office to submit its views on the case. The Justices are not expected to consider the petition again before the Nov. 20 conference.

Posted in Chamber of Commerce v. Brown, Uncategorized