You asked whether the “captive audience” bill is preempted by federal labor relations law.

The Office of Legislative Research is not authorized to give legal opinions and this should not be considered one.

SUMMARY

sHB 5030 prohibits an employer or its agent, representative, or designee from requiring employees to attend an employer-sponsored meeting with the employer or its agents or representatives when the primary purpose is to communicate the employer's opinion about religious or political matters. Political matters are political party affiliation or the decision to join or not join a lawful, political, social, or community group or activity or labor organization. The bill provides certain exceptions to its “captive audience” provisions. The Labor Committee sent the bill to the Judiciary Committee on March 7 as a joint favorable change of reference.

The National Labor Relations Act (NLRA) generally governs labor-management relations in the private sector. Regarding employer speech, section 8(c) of the NLRA states: “The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this act, if such expression contains no threat of reprisal or force or promise of benefit. ”

The NLRA does not have an express preemption provision but courts have found preemption when a state attempts to regulate (1) activities the NLRA arguably protects or prohibits, in order to prevent conflict between state regulation and Congress' integrated scheme of regulation or (2) areas left to the control of the free play of economic forces, which protects against unsettling the balance of interests set by the NLRA.

We could not find a case on this precise issue. Thus we cannot provide a definitive answer. But it appears likely that, based on the history of the NLRA and court rulings, that the NLRA would preempt the bill's provisions as they relate to labor organizing. We discuss some of the arguments below. It appears that the preemption analysis would focus on whether the bill is viewed as interfering with employer speech and the balance struck by the NLRA or as a general provision on employee rights which is not expressly prohibited by the language of the NLRA and which provides greater protection than the “floor” set by the NLRA.

If the NLRA does not preempt state legislation, the bill could also face a First Amendment challenge. U. S. Supreme Court cases have established that an employer has First Amendment rights in this context. Proponents of the bill argue that employees have certain First Amendment rights because they are a “captive audience” and the Court has upheld government regulation of speech in other circumstances where the audience was considered “captive. ” Because we have not found any cases specifically on this issue, it is unclear how a court would rule. We discuss these First Amendment arguments below.

Because the NLRA generally governs labor-management relations, it appears unlikely that it would preempt the bill's other provisions on speech on religious or political matters. But the employer could assert First Amendment rights and the same First Amendment arguments could also apply to those provisions. We did not conduct extensive research on what other First Amendment issues may arise in those circumstances, such as whether the regulation would be considered content-based or not and what legal standard would apply to that analysis.

BACKGROUND ON THE NLRA AND CAPTIVE AUDIENCES

The NLRA generally governs labor-management relations in the private sector. In response to rulings by the National Labor Relation Board (NLRB) and courts on captive audiences (see Clark Bros. Co. Inc. , 70 NLRB 802 (1946); NLRB v. Clark Bros. Co. , Inc. , 163 F. 2d 373 (2d Cir. 1947)), Congress amended the NLRB in 1947 with the Taft-Hartley Act. The act added section 8(c) which states:

“The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this act, if such expression contains no threat of reprisal or force or promise of benefit. ”

Since this change, the NLRB has imposed only one limitation on captive audience meetings: an employer cannot make an election speech “on company time to massed assemblies of employees within 24 hours before the scheduled time for conducting an election” (Peerless Plywood Co. , 107 NLRB 427 (1953)). This does not prohibit speeches if they are voluntary and on the employees own time. Speeches to individual employees at their workstations are not necessarily prohibited (Associated Milk Producers, Inc. , 237 NLRB 879 (1978)).

NLRA PREEMPTION OF STATE REGULATION

The NLRA does not have an express preemption provision but the interaction of the NLRA with state laws has been the subject of many preemption cases. Two lines of preemption cases appear relevant.

One line of preemption cases is based on the ruling in San Diego Trades Council v. Garmon (359 U. S. 236 (1959)). Garmon preemption is based on the primary jurisdiction of the NLRB. This prohibits regulating activities the NLRA arguably protects or prohibits to prevent conflict between state regulation and Congress' integrated scheme of regulation, which includes the choice of the NLRB rather than state or federal courts as the body to implement the act. The courts have upheld a number of exceptions to the rule including state laws on violence, trespass, defamation, and emotional distress (Drummonds, “The Sister Sovereign States: Preemption and the Second Twentieth Century Revolution in the Law of the American Workplace,” 62 Fordham L. Rev. 469 (1993); Healthcare Associates v. Pataki, 388 F. Supp. 2d 6 (N. D. N. Y. 2005)).

Another line of preemption cases is based on the ruling in Machinists v. Wisconsin Employment Relations Commission (427 U. S. 132 (1976)). Machinists preemption prohibits state regulation of areas left to the control of the free play of economic forces. This preempts state laws about conduct Congress intended to leave unregulated. It protects against unsettling the balance of interests set by the NLRA and preserves the intentional balance between management and labor. States cannot deny one party to an economic contest a weapon that Congress meant him to have available (Drummonds, “The Sister Sovereign States: Preemption and the Second Twentieth Century Revolution in the Law of the American Workplace,” 62 Fordham L. Rev. 469 (1993); Healthcare Associates v. Pataki, 388 F. Supp. 2d 6 (N. D. N. Y. 2005)).

Arguments that the NLRA Preempts

A court might view the bill as preempted by the NLRA as an interference with employer speech and the balance struck between employees and employers in the NLRA. Under this view, the NLRA regulates employer and employee speech and the tools available to them in the decisions regarding labor relations. States cannot disrupt that balance and the NLRA prevents them from recalibrating the “rules of engagement” between employers and unions in the context of collective bargaining. Changing the balance also curtails an employer's ability to effectively communicate the advantages or disadvantages of unionization.

It could also be argued that the bill regulates employer speech that Congress intended to leave free from regulation, in furtherance of policies implicated by the NLRA. Employer speech contributes to the marketplace of ideas during representative elections and Congress has an interest in encouraging employer free speech in the area of labor relations. It could be argued that a contrary state law impermissibly substitutes its own policy for federal law.

Arguments that the NLRA Does Not Preempt

A court might view the bill as not preempted by the NLRA. Under the NLRA, captive audience speeches cannot be an unfair labor practice unless they are coercive. The NLRA does not prohibit these speeches and does not give the employer a right to hold them. It could be argued, therefore, that states can step in to regulate this area. And the bill does not prohibit employer speech in all circumstances but only prohibits

captive audiences. It still leaves avenues for an employer to express its views. It could also be argued that the NLRA does not preempt states from providing employees greater protection from employers in organizing campaigns. Federal law sets minimum standards for workers' rights and the NLRA provides a “floor” that allows states to add greater protections.

Because the bill applies broadly to religious and political matters and not just in the labor organizing context, it could be viewed as an employee welfare and employee rights regulation or a minimum labor standard that is not preempted by the NLRA. The bill could also be viewed like other types of statutes that have been upheld such as false imprisonment claims arising in labor disputes.

Two Recent Preemption Cases

Two recent cases considered state statutes prohibiting organizations that receive state funds from using the money to encourage or discourage union organization. The context of these cases is different from that of Connecticut's bill because the statutes are tied to state funding and require employer neutrality. But the courts in both cases discussed NLRA preemption and found the statutes preempted.

In the New York case, the federal district court found that, under the Machinists doctrine, the NLRA preempted the state law from regulating pro- or anti-union advocacy because it interfered with the process protected by NLRA. The court discussed the NLRA's system for promoting or deterring union organization and the jurisprudence emphasizing open and robust advocacy by both employers and employees (Healthcare Associates v. Pataki, 388 F. Supp. 2d 6 (N. D. N. Y. 2005)).

The New York case relied heavily on the 9th Circuit Court of Appeals which ruled on a similar California statute (Chamber of Commerce of the U. S. v. Lockyear, 422 F. 3d 973, (9th Cir. 2005)). The value of these opinions may be limited as the New York case is currently on appeal to the 2nd Circuit and the 9th Circuit officially withdrew its opinion and ordered an en banc hearing.

FIRST AMENDMENT

In NLRB v. Gissel Packing Co. , the U. S. Supreme Court discussed an employer's First Amendment rights under the NLRA. The Court stated:

“But we do note that an employer's free speech right to communicate his views to his employees is firmly established and cannot be infringed by a union or the board. Thus, section 8(c) merely implements the First Amendment…Any assessment of the precise scope of employer expression, of course, must be made in the context of its labor relations setting. Thus, an employer's rights cannot outweigh the equal rights of the employees to associate freely, as those rights are embodied in section 7 and protected by section 8(a)(1) and the proviso to section 8(c). And any balancing of those rights must take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear” (395 U. S. 575, 616-618 (1969)).

First Amendment Arguments

The bill could face a First Amendment challenge based on the employer's free speech rights. Proponents of the bill argue that employees have certain First Amendment rights when they are a “captive audience. ” “The First Amendment permits the government to prohibit offensive speech as intrusive when the captive audience cannot avoid the objectionable speech” (Frisby v. Schultz, 487 U. S. 474, 487 (1988)). The Court has upheld government regulation of speech in other circumstances where the audience was “captive” but we have not found any cases specifically in this labor-management context.

Marcy Strauss, in a law review article, states that:

“Despite numerous Supreme Court decisions invoking the captive audience doctrine, the Court has failed to shed any meaningful light on the definition of captivity and on the precise burden placed on individuals to avoid the message. Perhaps the only clear conclusions one can draw is that the captive audience doctrine is more likely to be used to restrict speech when the individual is viewed as a 'captive in the home' than simply on the street, and individuals are more likely to be viewed as captive when speech is spoken, rather than written. Even within those categories, the Court has not consistently defined what is meant by captive” (“Redefining the Captive Audience Doctrine, 19 Hastings Const. L. Q. 85 (1992)).

Examples of cases where the Court upheld regulations under the captive audience doctrine include a city ordinance against picketing at an individual's residence or dwelling (Frisby v. Schultz, 487 U. S. 474, 487 (1988)), unwilling listeners and sound trucks (Kovacs v. Cooper, 336 U. S. 77 (1949)), and passengers on a municipal bus forced to see advertisements (Lehman v. Shaker Heights, 418 U. S. 298 (1974)).

One commentator, Elizabeth Masson, recently argued for a captive audience exception in the labor-management setting as valid under the First Amendment. She argues as follows.

1. The NLRA proclaims that protecting employee rights and promoting industrial equality are important and regulating speech that threatens those goals advances the First Amendment.

2. The captive audience doctrine is premised in part on the right to choose what information to receive and to make one's own choices based on that information. In balancing the right of free speech with the right to choose what one hears, courts consider the burden the listener should bear to avoid the speech, such as walking away.

3. If the choice not to hear speech cannot be made freely, the burden is unreasonable. The greatest justification for regulating expression based on the captive audience doctrine is when the speech is highly intrusive on the right to choose not to listen and the burden of avoiding the speech is extreme. In the case of captive audiences in the labor organizing context, workers can be fired for refusing to attend a captive audience meeting.

4. Some courts have recognized the captive nature of employees at work in cases where employers or third parties targeted workers with objectionable speech (Masson cites Robinson v. Jacksonville Shipyards, Inc. , 760 F. Supp. 1468 (M. D. Fla. 1991) (holding female employees were captive audience to speech creating a hostile work environment) and Resident Advisory Bd. v. Rizzo, 503 F. Supp. 383 (E. D. Penn. 1980) (holding employees at jobsite were captive audience as only measure they could take to avoid speech was to quit their jobs)).

(Masson, “Captive Audience Meetings in Union Organizing Campaigns: Free Speech or Unfair Advantage?,” 56 Hastings L. J. 169 (2004).

It is unclear how a court would rule on these arguments.

These First Amendment arguments could also apply to the bill's provisions on captive audiences for speech on topics of religion or political matters other than labor organizing. But we did not conduct extensive research on how the First Amendment might apply to these categories.

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