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.

We will continue to cover this litigation as it progresses. Stay tuned!

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Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice…

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice Group.

Some recent highlights of his career include:

  • Successfully defended client against allegations that it had terminated a union supporter and isolated another. T-Mobile USA, Inc., 365 NLRB No. 15 (2017).
  • Successfully appealed NLRB findings that certain of client’s written policies violated the National Labor Relations Actions Act.  T-Mobile USA, Inc., 363 NLRB No. 171 (2016), enf’d in part, rev’d in part 865 F.3d 265 (5th Cir. 2017).
  • Represented major utility in NLRB proceedings related to organizing of planners.  Secured utility-wide bargaining unit. Bargained on behalf of grocery chain.  After negotiations reached an impasse, guided the company through lawful implementation of five year collective bargaining agreement.
  • Coordinated employer response in numerous strike situations including a work stoppage across 14 western states of the client’s operations.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in a variety of industries, including national, multi-unit, multi-location, multi-employer and multi-union bargaining. Mark has handled lockout and strike situations, coordinating the clients efforts.

In addition, Mark has handled hundreds of arbitrations involving virtually every area of dispute, including contract interest arbitration, contract interpretation, just cause termination/discipline, benefits, pay rates, and hours of work.

Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.