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US Supreme Court will decide labor preemption case
November 20, 2007 by Ross Runkel at LawMemo
The US Supreme Court announced today that it will review the 9th Circuit's judgment in Chamber of Commerce v. Brown (certiorari granted 11/20/2007) [Details, briefs]
Oral argument is expected to be scheduled for March or April 2008.
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 Assn 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."
The "Question Presented" in the petition for certiorari:
"Is the State of California’s regulation of noncoercive employer speech about union organizing, California Assembly Bill 1889, Cal. Gov’t Code §§ 16645.2, 16645.7, preempted by federal labor law?"
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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