From statehouses to the United States Capitol, organized labor is pushing lawmakers to enact new laws designed to make it easier for unions to organize workers and more difficult for employers to respond to organizing efforts. This Bullard Alert addresses two such efforts: Oregon’s new Worker Freedom Act and the proposed federal Employee Free Choice Act.

Oregon: Union-Friendly “Employer Gag” Law May Face Legal Challenge

On June 30, 2008, Governor Kulongoski signed Senate Bill 519, known by supporters as the Worker Freedom Act, and by critics as the Employer Gag Bill. The new law, which goes into effect on January 1, 2010, prohibits employers from taking adverse employment actions against any employee who declines to attend an employer-sponsored meeting, or to participate in employer-run communications, if a primary purpose of the meeting or communication is to express the employer’s opinion on religious or political issues. Political parties and political or religious organizations are exempt from the effects of the law.

The new law does not prohibit employers from having such meetings, sending communications or engaging their employees in discussions about politics or religion; instead, it prohibits employers from disciplining any employee who chooses not to participate.

One of the law’s underlying purposes is to prohibit employers holding mandatory meetings to discuss union activities. Employers, faced with union-organizing campaigns, will now be barred from holding mandatory meetings to communicate with employees regarding the collective bargaining process and the repercussions of unionization. An employee claiming violation may bring a civil action; the available remedies include treble damages, attorneys' fees and costs.

Opponents of the new law claim it violates their constitutional right of free speech and is preempted by the National Labor Relations Act. For example, for more than seventy years the NLRA has given employers the right to hold mandatory meetings to inform workers of the employer’s perspective on union organization; the new law defines such a meeting topic as a “political matter” and prohibits such meetings from being made mandatory. As a result, several business organizations (such as Associated Oregon Industries) have indicated they may challenge the law on preemption and free speech grounds. Organized labor would oppose any legal challenge to the law; union groups claim that it protects workers’ rights to opt out of communications on personal topics without fear of discipline.

EFCA: Senate Drops Controversial Card Check Provision But Considering Alternatives

Throughout 2009, Bullard Law has been preparing employers for the possible passage of the federal Employee Free Choice Act of 2009 (EFCA). In our March 11, 2009 Bullard Alert we cautioned that if the EFCA were to be enacted as proposed, it would be the most radical and sweeping change in federal labor law since enactment of the NLRA in 1935.

One of the more controversial changes in the proposed EFCA is the so-called “card check” provision. This provision effectively eliminates traditional secret ballot voting and would instead require employers to recognize a union as the exclusive bargaining representative of its employees as soon as a majority of employees signed authorization cards saying they want to be represented by the union. The proposal offers no guidelines on the card-gathering process and does not protect against misleading or coercive union organizing tactics.

As has been widely reported over the past week, Senate Democrats have dropped the EFCA’s controversial “card check” provisions. In addition to Republican opposition to the EFCA, several moderate Democratic Senators opposed the Act’s card check provisions because they believed them to be undemocratic. So Democrats are apparently proposing to drop those provisions in order to secure the filibuster-proof 60 votes needed to pass the revised EFCA.

Employer should only breathe a short sigh of relief. The EFCA’s mandatory arbitration provisions and its stiffer penalties for employer-committed unfair labor practices remain intact. Moreover, to placate labor over the loss of the card check provisions, Senators are considering substituting other provisions. The most noteworthy of the provisions being considered, include:
 

Requiring Shorter Election Periods. One possibility is that EFCA will mandate that elections take place within 10 days after a union files a petition with the National Labor Relations Board. Currently, elections usually take place within 30-45 days after a petition is filed. The shortened election period will not leave employers much time to litigate critical unit issues or to communicate with their employees about the pros and cons of union membership. Some states already impose these kinds of tight election deadlines. California’s Agricultural Labor Relations Act mandates that elections take place within seven days after a petition is filed.

Mandating Access for Non-Employee Union Organizers. Another provision being considered is to require employers to allow union organizers into the workplace to solicit employees for union membership. Current law allows employers, in certain circumstances, to prohibit any outside organizations from entering their property, including unions.

Prohibiting Mandatory Meetings. The Senate is also considering a provision that would prohibit employers from holding mandatory meetings with employees to discuss union issues. This is similar to Oregon’s new law, discussed above. (We note that a change in federal law would weaken any preemption challenge to the Oregon law.)

Bullard Law will continue to monitor these developments. In the meantime, please give us a call if you have any questions about the Oregon Worker Freedom Act, the EFCA, or other developments affecting employment, labor relations and employee benefits.

- Jennifer A. Sabovik & Sarah M. Petersen