The Illinois FOP Labor Council

Can State Funds be Used in Union Organizing Campaigns?

The 9^th Circuit Says the NLRA Preempts a California statute prohibiting

the use of state money to "assist, promote or deter union organizing"

Among the hotter controversies in labor is whether a private employer may spend public money to fight its employees' efforts at unionizing. Notable in this debate has been a law in California (Gov't Code Section 16645.2(a)) that bars private employers who receive a grant of state funds from using the funds "to assist, promote, or deter union organizing." The statute also prohibits "a private employer receiving state funds in excess of $10,000 in any calendar year by participating in a state program from using such funds "to assist, promote, or deter union organizing." Section 16645.7(a).

The 9th Circuit Court of Appeals, after a rehearing, held the National Labor Relations Act preempted the statute. Chamber of Commerce of the United States v. Lockyer (9th Cir. 2005). The Court ruled the statute was preempted by the National Labor Relations Act under both the preemption doctrines discussed in Lodge 76, International Association of Machinists & Aerospace Workers v. Wisconsin Employment Relations Commission, 427 US 132 (1976) and San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959).

The Court believed the statute "chills employers from exercising their free speech rights that are explicitly protected by Congress under the National Labor Relations Act. In doing so, the statute undermines the delicate balance established by Congress as between labor unions and employers. In addition, the California statute interferes with the National Labor Relations Act's extension of exclusive jurisdiction to the National Labor Relations Board ("NLRB") for the adoption and enforcement of representation election rules."

Stay tuned...this debate is not over. The California law and other similar legislative efforts do not restrict an employers' freedom of speech. They retain the ability to express their opinions; the restriction is on their ability to spend state money when they do.

Legal Briefs

Legal Briefs is sponsored by the Grand Lodge Fraternal Order of Police. Founded in 1915, the Fraternal Order of Police is the world's largest organization of sworn law enforcement officers, with more than 321,000 members in more than 2,100 lodges.

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