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.

We will continue follow developments on this conflict for employers between federal and state law. Please feel free to contact a Jackson Lewis attorney with any questions.

 

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Photo of Jonathan A. Siegel Jonathan A. Siegel

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…

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 termination and discrimination claims.

Mr. Siegel has represented management in union organizing drives and regularly defends employers in unfair labor practice proceedings as well as in collective bargaining and arbitrations. He also has extensive experience conducting wage and hour preventive audits. He conducts single location and multi-location audits for employers. The scope of such audits can range from examining specific issues, i.e., exempt status under federal law and California, to comprehensive FLSA and California Labor Code audits. Mr. Siegel has conducted audits for a wide range of industries including, but not limited to manufacturing, retail, transportation, various service industries, defense contractors and healthcare.

Mr. Siegel regularly speaks on a variety of topics including wage and hour, harassment/discrimination, national and California employment trends, Workers’ Compensation, EEO, managing leaves of absence under FMLA and state leave laws and union avoidance. He has moderated numerous programs and is featured as a keynote speaker for several different organizations.

Photo of Jonathan J. Spitz Jonathan J. Spitz

Jonathan J. Spitz is a Principal in the Atlanta, Georgia office of Jackson Lewis P.C. and he is the national co-Coordinator of the Firm’s Collegiate and Professional Sports industry group.

Mr. Spitz coordinates Jackson Lewis’ labor practice for the Southeast region of the…

Jonathan J. Spitz is a Principal in the Atlanta, Georgia office of Jackson Lewis P.C. and he is the national co-Coordinator of the Firm’s Collegiate and Professional Sports industry group.

Mr. Spitz coordinates Jackson Lewis’ labor practice for the Southeast region of the United States. He understands the practical and operational needs of clients, helping design pragmatic strategies to minimize risk and maximize performance. He was selected as a “Leader in the Field” by Chambers USA in 2009 and 2010.

He has represented management in numerous counter-organizing drives and participated in dozens of unfair labor practice proceedings, discrimination charges and other matters before the National Labor Relations Board, the Equal Employment Opportunity Commission and various federal and state administrative agencies, as well as in collective bargaining, arbitration and in employment litigation before state and federal courts. Mr. Spitz regularly counsels employers in employee relations and discipline and discharge matters, and also assists employers in drafting employment policies and in complying with the Family and Medical Leave Act, drug testing laws and regulations, the Americans with Disabilities Act and other federal and state employment laws.

Mr. Spitz has extensive experience in assisting employers to create union and litigation avoidance strategies suitable to the individual organization, values and industry. He has led teams conducting multi-facility labor vulnerability assessments and has advised employers in responding to corporate campaigns and demands for card check and neutrality.

Mr. Spitz is a contributing author of Employer’s Guide to Union Organizing Campaigns, Aspen Publishers, 2007. In addition, he has authored many articles regarding labor and employment law issues which have appeared in national trade publications.

Mr. Spitz is admitted to practice in the Second, Fourth, Sixth, Eleventh and District of Columbia Circuit Courts of Appeals; the United States District Court for the Middle District of Georgia; and the Georgia Supreme Court.

He received his Bachelor of Arts degree, cum laude, from Tufts University in 1990. He earned his J.D. from Emory University in 1993