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NLRB Files Suit Against Oregon In Regard to State's "Captive Audience" Prohibition


Earlier this month, the National Labor Relations Board ("NLRB") filed suit against the state of Oregon, seeking to invalidate a statute in the state that protects employees from adverse employment actions that refuse to attend lawful, compulsory meetings held by employers during organizing campaigns. 

Since ORS 659.785(1) was enacted in 2010, an employer in the state is prohibited from discharging, disciplining or otherwise penalizing an employee, or threatening 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."  Note, "political matters" is defined as including "the decision to join, not join, support or not any lawful political or constituent group" with "constituent group" including labor organizations.

For reference, these meetings are often referred to as "captive audience" meetings and occur during the working time of the employee when the employer presents its views on unions.  The meetings can occur at any time during the organizing campaign except for the 24 hour period before the election occurs.  Unions have long argued that these meetings give employers an unfair advantage and have sought to have them barred altogether.  (ORS 659.785(1) in essence does that.)

This particular lawsuit arises out of a June 2019 union election involving the Teamsters and an employer in the state.  The employer sought to stay the election on the grounds that it was prohibited from making captive audience meetings in order to comply with ORS 659.785(1).  Although this stay request was denied, it enabled the issues related to ORS 659.785(1) to be raised in any post-election proceeding.  (The Teamsters did not secure enough votes in the actual election itself.)

In essence, the NLRB argues that ORS 659.785(1) is preempted under Diego Building Trades Council v. Garmon (a 1959 case from the United States Supreme Court) which held that state and local governments are barred from regulating activities that are otherwise regulated under the National Labor Relations Act ("NLRA").  Consequently, the NLRB has pointed out that ORS 659.785(1) is preempted because the NLRB has exclusive control over union election proceedings.  (Section 8(c) of the NLRA permits employers to express their views on unions, so long as that "expression contains no threat of reprisal or force or promise of benefit.)



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