Drummonds on Chamber of Commerce v. Brown

Henry Drummonds (Lewis & Clark), an expert in the area of NLRA preemption, has this legal analysis of the forthcoming Supreme Court oral argument in the NLRA Preemption case of Chamber of Commerce v. Brown in the February 2008 issue of CCH Labor Law Reports Insight:

After 50 years the time has come for a major reworking of labor law preemption doctrine to reflect the realities of the 21st Century.  The private sector union movement is dying.  Only management advocates believe today that the NLRB protects and fosters the right to organize and the right to refrain  in an even-handed way. Unions now seek to avoid whenever possible NLRB processes and the politicalization of Board decision-making has become palpable.  At the same time NLRA  preemption doctrine ---entirely judge made----stifles experimentation in the sister sovereign states.  While the mantra of a "uniform federal labor policy" continues in judicial opinions,  labor law preemption now falls outside the non-preemption norm in a the broad sweep of workplace regulation (Title VII and other status discrimination statutes, the Occupational Safety and Health Act,  Family Medical Leave Act,  the Fair Labor Standards Act, etc).  Why  is a uniform policy so vital in labor law but not in wage and hour law, leave law,  discrimination law,  and workplace safety law?  Even in its own terms the NLRA actually leaves the most important of all labor law issues ---the union and agency shop-- up to the states in the form of "right to work" laws.  While reform may well have to come from the Congress,  Chamber of Commerce vs. Brown provides the Supreme Court with a golden opportunity to modernize labor law preemption doctrine and square the Court's commitment to federalism and state sovereignty in other contexts with labor law's excessive assumptions about the efficacy and wisdom of an exclusive federal regime.

On a doctrinal level,  several considerations point toward a ruling upholding the right of the people of California, acting thru their state legislature,  to ensure that state tax monies are not used for pro or anti union speech by proselytizing employers.  First, while often ignored, the Court has repeatedly expressed a strong presumption against preemption .  Second,  the California statute at issue in Chamber of Commerce does not prohibit employers from expressing their views about unionization to their employees---with their own money.  Deciding the proper purposes for state funds fundamentally expresses the sovereignty of the states. Further, the summary judgment record discloses that the burden of accounting for state funds separately falls no heavier under the California statute than do many similar restrictions on the use of federal funds for certain purposes (for example Medicare funds). Nothing in the NLRA suggests that Congress meant to restrict the states from using state monies as the voters' elected representatives see fit.  In doctrinal terms,  the California statute simply does not under the Machinists doctrine interfere with the "free play of economic forces." Under the Garmon doctrine (incidentally, Garmon was a 5-4 decision with Justice Harlan writing a concurrence  joined by three other justices disputing the broad primary agency jurisdiction rationale of Justice Frankfurter's opinion for a bare majority), morever, the California statute  does not regulate anything arguably protected or prohibited by the NLRA ; the NLRB does not protect the right to use state funds to oppose or promote unionization, nor does the federal law  prohibit the use of state funds to promote or oppose unionization. In any event,  just as state statutes and common law regulate labor violence, the intentional infliction of emotional distress, malicious defamation, blockages of ingress and egress, and trespass to land (and other matters deeply rooted in local feeling) without running afoul of NLRA preemption, the power to control the use of state tax money has since the American Revolution ("no taxation without representation" ) been at the heart of state sovereignty and local control.

Well, not surprisingly for those three or four of you who have read my paper (thanks Mom!), Towards the Viability of State-Based Legislation to Address Workplace Captive Audience Meetings in the United States, 29 Comp. Lab. L. & Pol'y J. 209 (2008), I couldn't agree with Henry more. I just hope that the Supreme Court Justices and their clerks read this blog.

BTW, kudos as well to my good friend, Michael Harper (BU), for also giving his comments in the article.

PS