On February 7, 2020 the National Labor Relations Board (“NLRB”) sued the State of Oregon in federal court seeking a declaratory judgement to invalidate a state statute that protects employees who refuse to attend lawful compulsory meetings held by employers during organizing campaigns from adverse employment action.  These meetings, pejoratively referred to as “captive audience” meetings, are workplace meetings during the working time of the employee where the employer expresses its views on unions.  According to the NLRB, Oregon’s statute is preempted under the preemption doctrine established by the Supreme Court in Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959).  The Garmon preemption doctrine prohibits state and local governments from regulating activities that are otherwise regulated under the NLRA.

The NLRB’s complaint arose out of a June 2019 union election involving the Teamsters and an Oregon employer.  A Teamster local filed a petition seeking to represent several types of employees in the employer’s workforce.  The employer sought a stay of the election, arguing that it had to refrain from making captive audience meetings in order to comply with the Oregon statue.  Although the NLRB denied the stay, it allowed the employer to raise any issues related to the impact of the Oregon statute in any post-election proceedings. Ultimately, the union did not secure enough votes to be selected as the employees’ bargaining representative.

The Oregon statute, ORS 659.785(1), enacted in 2010 provides that an employer may not discharge, discipline or otherwise penalize an employee, or threaten to do the same, because the employee “declines to attend or participate in an employer-sponsored meeting or communication with the employer… if the primary purpose of the meeting or communication is to communicate the opinion of the employer about… political matters.” The statute defines political matters to include “the decision to join, not join, support or not any lawful political or constituent group”, and further defines “constituent group” to include labor organizations.

Since the enactment of the NLRA, it has been lawful for an employer to hold meetings with its own employees to give information and opinions about any unionization effort.  Such meetings can be held at any time during an organizing drive except  the 24-hour period before the representation election. All other rules applying to discourse about unionization apply.  Unions have argued for years that such meetings give the employer an unfair advantage; employers counter this argument by noting the employees are paid for their time and the employer is entitled to run its business the way it wants, including expressing its lawful opinion.

In its complaint, the NLRB argues that the Oregon statute is preempted under Garmon because it conflicts with the NLRB’s exclusive control over union election proceedings, as delegated to the agency by Congress.  In the eyes of the NLRB, the Oregon statute interferes with its ability to regulate a covered employer’s conduct during a union election campaign and to adjudicate any unfair labor practices related to election campaigns.  Indeed, Section 8(c) of the NLRA permits employers to express their views on unions, as long as that “expression contains no threat of reprisal or force or promise of benefit.”  The NLRB also argues that the Oregon statute is preempted under the Supremacy Clause of the Constitution, because the state statute prohibits conduct “permitted and protected by the NLRA.”

Other employers have filed representation petitions since the June 2019 Teamsters election, arguing that the employers may be forced to choose between exercising their rights under the NLRA or complying with the Oregon statute.  In November 2019, the NLRB notified the Attorney General of the State of Oregon of its concern that Oregon employers were faced with a dilemma during organizing campaigns, and asked the Attorney General to determine whether their preemption argument could be addressed by the state legislature. The Deputy Attorney General responded, expressing his disagreement with the NLRB and informing the agency that his office would take all steps to defend the Oregon statute.  The NLRB’s complaint soon followed.

There are a variety of state statutes on the books that run in direct conflict with the NLRA. Oftentimes, these statutes are not an issue because they are not enforced. For example, some state statutes prohibit the hiring of replacement workers during a strike, which is directly opposite what is permitted under the NLRA.  In this case, it appears Oregon too has not actually enforced the statute but enough employers have complained that the NLRB has taken notice.