West Virginia Doesn't Listen to Me

Well, I spoke too soon about West Virginia adopting a workplace captive audience bill. The BNA's Daily Labor Report (subscription required) reports today:

West Virginia's 2008 legislature was expected to adjourn March 8 without adopting a measure (H.B. 4132) that would have banned employers from holding compulsory meetings to present their views on political or labor issues.

The legislation earlier this month passed the West Virginia House of Delegates (41 DLR A-13, 3/3/08), but the chairman of the Senate's Judiciary Committee said March 5 it would not emerge from committee before adjournment.

Chairman Sen. Jeffrey Kessler (D) told the committee he had decided not to advance the bill because a case pending before the U.S. Supreme Court--Chamber of Commerce of the United States v. Brown, U.S., No. 06-939--could invalidate West Virginia's "confined speech" law soon after it went into effect.

Calling the bill "a very contentious piece of legislation," Kessler said the high court's decision, expected later this year, could affect how employers communicate with workers. The issue before the Supreme Court is whether a California law barring employers from using state funds to assist or deter union organizing is preempted by the National Labor Relations Act.

I am clearly disappointed by this development and I do not believe the decision in Brown will dictate whether Worker Freedom Acts survive First Amendment and NLRA preemption scrutiny.  On this topic, I wrote in my recent article:

Although these laws [Brown-type laws] could also help in preventing employee captive audience meetings, their focus is both broader and narrower than captive audience bills; broader in applying to many more labor activities, but narrower in only applying to employers that receive state funds.  They also concern legislation that potentially prevents speech as opposed to just prohibiting attendance at mandatory workplace meetings. 

So, I disagree completely with Senator Kessler and wish they had allowed the West Virginia Senate to vote on the bill.

PS