An Oregon law that arguably prohibits employers from requiring employees to attend mandatory meetings to hear the employer’s views regarding unions and the National Labor Relations Board (NLRB) process is unlawful, the NLRB has asserted in a complaint filed with the U.S. District Court – Eugene Division.
The complaint says the Oregon law violates an employer’s fundamental free speech right protected by Section 8(c) of the National Labor Relations Act (NLRA), the NLRB’s ability to regulate representation elections and unfair labor practices, and the Supremacy Clause of the U.S. Constitution. The NLRB states the Oregon law forbids conduct specifically protected and permitted by federal law.
On February 7, 2020, Pia Winston of the NLRB Contempt, Compliance and Special Litigation Branch filed a complaint for declaratory judgement against the State of Oregon challenging the validity of Oregon Revised Statutes 659.780 and 659.785. The complaint alleges the law is preempted under the Garmon Doctrine. Enacted in 2010, the Oregon law, “Discrimination For Nonparticipation In Employer Sponsored Meetings About Religious Or Political Matters,” states in part:
An employer . . . may not discharge, discipline or otherwise penalize or threaten to discharge, discipline or otherwise penalize or take any adverse employment action against an employee:
(a) 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 religious or political matters;
(b) As a means of requiring an employee to attend a meeting or participate in communications described in paragraph (a) . . .; or
(c) Because the employee . . . makes a good faith report, orally or in writing, of a violation or suspected violation of this section.
The law defines “political matters” to include “the decision to join, not join, support or not support any lawful political or constituent group.” Under the statute, “constituent group” includes, but is not limited to, civic associations, community groups, social clubs and mutual benefit alliances, including labor organizations.
In an attempt to resolve the dispute without litigation, the NLRB’s General Counsel had written to the Oregon Attorney General’s Office to convey the NLRB’s concern over the Oregon law’s conflict with federal law and the U.S. Constitution. However, the state Attorney General declared that it would defend its statute against the NLRB.
In 2010, a court denied a challenge to the same Oregon law on procedural grounds. The court stated, in part, the lawsuit was premature because the employer was unable to show any actual harm or that the employer faced imminent threat of prosecution under the law. At that time, the court’s decision was a departure from another federal court in Wisconsin that struck down a similar Wisconsin law.
We will continue follow developments on this conflict for employers between federal and state law.