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Guest Blog: Secunda on Regulating Captive Audience Meetings in the U.S.

Go to fullsize image A ‘captive audience meeting’ (CAM) is a meeting which employers require employees to attend during working hours at which the employer passes on its opinions about some subject.  These meetings are controversial when the subject matter of the employer’s speech includes attempts to persuade employees not to support a union or collective bargaining, or subjects such as politics and religion.  For example, there was a controversy during the last U.S. election when Wal-Mart (and other companies) were accused of holding CAMs to persuade workers not to vote Democrat (for fear that Obama would pass laws making it easier for workers to join unions).

Do you think employers should be able to force employees to listen to the employer’s opinions about unions, politics, and religion, or do you think that is offensive?

In Canada, CAMs relating to unionization are permitted in all jurisdictions, except the Federal jurisdiction (where they are restricted in some ways).  However, the content of the employer’s speech is regulated.  For example, in a CAM, the employer cannot make threats that bad things will happen to employees if they support a union.  But the employer can tell the employees to ‘vote no’, and can say most anything else they want, as long as they don’t intimidate, threaten, or coerce the employees.  I have discussed all of this law in this paper (for those who are interested), and argued that CAMs to discuss unionization issues should be restricted in Canada.

There is a movement afoot in the U.S. to impose greater restrictions on CAMs.  Oregon recently became the first state to introduce legislation that would make it unlawful for an employer to punish an employee who refuses to attend a captive audience meeting the subject of which is religion or ‘politics’, which includes issues related to unions and collective bargaining.  Here is the legislation.

[BTW, for labour law students, consider whether Canadian labour laws prohibit an employer from disciplining or dismissing an employee who refuses to sit through a meeting at work in which the employer bad mouths unions]

Of course, employers aren’t happy with this development, since forcing employees to listen to their tirades against unions is perceived by many of them as a right originating with Moses on a mountain.  One way they intend to challenge these sorts of restrictions in captive audience meetings passed by State governments is by asserting that the States lack jurisdiction.  In U.S. constitutional parlance, the issue is whether the States are “preempted” from legislating CAMs because the matter falls within Federal jurisdiction.

I asked labor law scholar Paul Secunda of Marquette University Law School in Milwaukee to explain to us Canadians what this all means.  Here is Paul’s Guest Blog on preemption:

In its simplest form, labor preemption doctrine in the United States deals with the conflicts that inevitably arise between federal labor law and state laws and regulations. Based on the Supremacy Clause of Article VI of the U.S. Constitution, where federal and state labor laws collide, the state law in question must give way in favor of the federal scheme. In addition, the Commerce Clause of the U.S. Constitution has been interpreted to give Congress an almost limitless right to legislate in the labor relations area. Thus, Congress could have chosen to occupy the field of labor relations law exclusively, but it has never exercised its full powers in this regard, leaving the states free to pass many state and local laws and regulations that apply to the workplace.

The difficult issue that remains, however, is: What is the preemptive intent of the federal National Labor Relations Act with regard to potentially inconsistent, parallel state labor laws? The fact that the NLRA does not have an express preemption provision only serves to complicate the answer to this question. To clarify where the preemption line may lie, it is helpful to understand that the Supreme Court has set forth two guiding principles or themes in its labor preemption decisions: (1) the need to avoid conflicts in substantive rights; and (2) the need to protect the primary jurisdiction of the NLRB.

With regard to guarding against conflict between state and federal labor law, state laws have been found preempted under at least four basic circumstances: (1) where state laws restrict or potentially restricts the exercise of rights under Section 7 of the NLRA (part of so-called Garmon preemption), (2) where state laws permit or potentially permit conduct that is restricted by the unfair labor practice provisions of Section 8 (also Garmon preemption), (3) where state laws provide a different remedial scheme than federal labor law (yet another form of Garmon preemption), and (4) where state laws seek to regulate activity that Congress purposefully chose to leave unregulated. (Machinists preemption).

On the other hand, the complementary doctrine of primary jurisdiction brings to bear familiar U.S. administrative law concepts. Most importantly, that Congress has created the National Labor Relations Board (NLRB) to administer and implement the NLRA and has granted primary jurisdiction to the
NLRB, as the court of first resort, to adjudicate disputes that arise under the statute. This means that labor and management must first use the NLRB to resolve their labor relations disputes. This primary reliance on the NLRB is, in turn, premised on the NLRB’s expertise and experience in resolving labor relations matters and on the importance of fashioning a coherent and uniform body of labor law by which parties can predicate their future conduct.

Interesting.  Paul has argued at length in this paper that State-based  captive audience meetings legislation will not be found to be preempted.

So, what is your take on this stuff.

Should governments in Canada prohibit employers from forcing employees to listen to their views on religion (‘you should all join the Christian church’), politics (‘don’t vote Liberal, and here’s why’), and unionization (‘don’t support the union organizing campaign because …’)?

Or should employers have the right to force employees to listen to whatever the employer wants to talk about, since the employer is paying their wages?

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