December 2, 2021

Volume XI, Number 336

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NLRB Files Complaint Against Oregon Over Law Banning Employer Captive Audience Meetings about Unions

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.

ORS 659.785(1).

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.

Jackson Lewis P.C. © 2021National Law Review, Volume X, Number 70
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About this Author

Jonathan A. Siegel, Labor, Employment Attorney, Jackson Lewis, Law Firm
Principal

Jonathan A. Siegel is one of the founding Principals of the Orange County, California, office of Jackson Lewis P.C. He practices before the Equal Employment Opportunity Commission, National Labor Relations Board, state and federal agencies and courts.

Mr. Siegel also provides advice and counsel regarding labor and employment law with respect to various issues ranging from wage and hour law, reduction in force, WARN Act, discipline, leave management and harassment and discrimination issues. Mr. Siegel defends employers regarding different varieties of wrongful...

949-885-1360
Jonathan J. Spitz, Jackson Lewis Law Firm, Labor Employment Attorney, Atlanta
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Jonathan J. Spitz is a Principal in the Atlanta, Georgia, office of Jackson Lewis P.C. He is Co-Leader of the firm’s Labor and Preventive Practices Group.

Mr. Spitz lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media issues and the changing regulatory landscape. He understands the practical and operational needs of corporate America, helping design pragmatic strategies to minimize risk and maximize performance. He has represented...

404-586-1835
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