Chamber v Brown at the Supreme Court - LawMemo Employment Law Blog

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Chamber v Brown at the Supreme Court
October 23, 2007 by Ross Runkel at LawMemo

I'm betting that the US Supreme Court will grant certiorari in Chamber of Commerce v. Brown, to review the 9th Circuit's 12-3 en banc decision.

Friday the US Solicitor General filed an amicus brief urging the Court to grant certiorari, and taking the position that the 9th Circuit's decision was wrong. [Click here for details and briefs.]

California Gov't Code Section 16645.2(a) bars private employers who are "recipient[s] of a grant of state funds" from "us[ing] the funds to assist, promote, or deter union organizing." Similarly, Section 16645.7(a) bars "a private employer receiving state funds in excess of [$10,000] in any calendar year on account of its participation in a state program" from using such funds "to assist, promote, or deter union organizing."

Sitting en banc, the 9th Circuit held that these two sections "do not undermine federal labor policy, are not preempted by the NLRA [National Labor Relations Act] and do not violate the First Amendment." The court reasoned that (1) these sections are not preempted by the NLRA under either Machinists preemption (Lodge 76, International Ass'n of Machinists v. Wisconsin Employment Relations Commission, 427 US 132 (1976)) or Garmon preemption (San Diego Building Trades Council v. Garmon, 359 US 236 (1959)); and (2) these sections do not violate the 1st Amendment, because (consistent with Rust v. Sullivan, 500 US 173 (1991)) they, "like various federal acts, require[ ] only that those who accept government grant and program funds use them for the purpose for which they were given."

This case has the perfect ingredients for a grant of certiorari:

There is a split of authority among the lower courts.

The case involves fundamental legal issues that are important on a national scale:

Whether California has interfered with employers' rights of free speech (either under the 1st amendment or Section 8(c) of the NLRA).

Whether California has a right to control the use of funds that employers receive from the state.

Whether federal legislation (the National Labor Relations Act) preempts the state statute.

It may be another month or so before the Court decides whether to take this case. If it does, then it will be more months before an oral argument, and then more time before a decision.

For more discussion of this case: