Captive Audience Meetings
The issue of Captive Audience Meetings arises when a union is attempting to organize employees in a non-union workplace. When a union wants to represent a group of non-unionized employees, it can file a Representation Petition with the NLRB, which allows employees to decide in a secret ballot election whether they want to be represented by the union. During union organizing efforts, either before or after a petition is filed, the NLRA allows an employer to hold compulsory meetings with employees to provide information and opinions about union organizing. Captive Audience Meetings may be held at any time during an organizing campaign, except the 24-hour period before the secret ballot election.
The Oregon Law
The Oregon law being challenged by the Board, ORS 659.785(1), was enacted in 2010. The law prohibits an employer from taking any adverse employment action, or threatening to do so, against any employee who refuses to attend “an employer-sponsored meeting… if the primary purpose of the meeting or communication is to communicate the opinion of the employer about… political matters.” The law defines “political matters” as including the decision to join, not join, or support a labor organization or union. The practical implication of this law is that an employer could be liable for disciplining an employee for refusing to attend a Captive Audience Meeting that is expressly allowed under the NLRA.
NLRB: The Oregon Law is Preempted by Federal Law
The Board’s lawsuit argues that the Oregon law is invalid because it conflicts with its exclusive control over union elections under the NLRA. This argument is based on the preemption doctrine established by the U.S. Supreme Court in Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959), which prohibits state and local governments from regulating activities governed by the NLRA. The Board also argues that the Oregon law is invalid under the U.S. Constitution’s Supremacy Clause because the Oregon law directly conflicts with a federal law—the NLRA. Before the NLRB filed suit, the office of Oregon’s Attorney General told the Board that it did not agree that there was a conflict between the two laws, and that it would defend the Oregon law.
While this case is far from being resolved, it highlights the patchwork of state and federal labor and employment laws that employers must navigate, whether or not they have unionized employees. And, until the apparent conflict over Captive Audience Meetings is resolved in federal court, employers must be aware of the state and federal laws that govern their actions during union organizing campaigns. We will continue to provide updates as this case progresses.
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Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. Alerts are not intended as legal advice, but as employment law, labor law, and employee benefits announcements. If this has been forwarded to you, and you would like to begin receiving Electronic Alerts directly, please email or call Traci Ray at 503-276-2115. Copyright ©2021 by Barran Liebman LLP.
Las Alertas electrónicas son escritas por abogados de Barran Liebman para sus clientes y amigos. Las Alertas no son proveídas como asesoramiento legal, sino solo como anuncios de leyes de empleo, leyes laborales y beneficios de empleo. Si esto ha sido remetido a usted y quisieras empezar a recibir las Alertas directamente, por favor mándanos un correo electrónico o llama a Traci Ray al 503-276-2115. Derechos de autor ©2021 por Barran Liebman LLP.