Judiciary Committee

JOINT FAVORABLE REPORT

Bill No.:

HB-7326

Title:

AN ACT CONCERNING CAPTIVE AUDIENCE MEETINGS.

Vote Date:

3/30/2007

Vote Action:

Joint Favorable Substitute

PH Date:

3/14/2007

File No.:

SPONSORS OF BILL:

Judiciary Committee

SUBSTITUTE LANGUAGE: Redefines the following: “Social group”, “Require”, and “Employer sponsored meeting”.

Also inserts a severability provision that protects the bill if a portion is found invalid by a court.

REASONS FOR BILL:

There have been documented instances where willful employers have demanded - under the veil of discipline and/or removal - that their employees participate in meetings and organized discussions regarding religion, politics and union organizing.

RESPONSE FROM ADMINISTRATION/AGENCY:

Attorney General Richard Blumenthal: I support this bill as it would protect employees from coercion by an employer to attend a meeting to discuss religious or political issues. It is important to note that this legislation would not prohibit an employer from holding meetings to discuss such topics or identifying other means to communicate the employer's position on these topics. It would bar an employer from forcing employee attendance at such meetings. Moreover, the legislation specifically exempts certain conversations and meetings that further legitimate employer interests.

Concerns have been raised about whether the National Labor Relations Act preempts states from passing such a law. A general exercise of state labor regulation such as contained in House Bill 7326 is constitutional and I will vigorously defend it. Preemption is disfavored by the courts and every law is presumed to be constitutional. This holds true for the interstate commerce challenge, South Carolina State Highway Dept. v. Barnwell Bros, 202 U.S. 177, 58 S.Ct. 510 or under the Full Faith and Credit clause, Alaska Packers' Ass'n v. Industrial Accident Commission, 294 U.S. 532, 55 S.Ct. 518. Similar statements have been expressed by the Court of Appeals for the Second Circuit, Able v. United States, 44 F.3d 128 (2nd Cir. 1995), and the United States District Court for Connecticut, Campbell v. Bysiewicz, 213 F. Supp. 2d 152 (D. Conn. 2002).

Senator Martin M. Looney, 11th District: I support this bill as it would prevent employers from firing or otherwise disciplining employees who would prefer not to be compelled to listen to employer speeches about religion or political matters, including labor organizing.

This legislation would protect an employee from economic sanction if the employee chooses not to listen to an employer's political or religious views. It should be the policy of our state, as expressed in this legislation, to prevent employer coercion as to political matters, including unionization, which is also a political topic. We need to stand up against the coercion of employees into listening to speeches about matters other than how to do their jobs, such as whether the employee should joining a particular church, union or political party.

I also believe that there should be exemptions for certain types of entities, such as an organization devoted to religion, a particular political affiliation, and educational institutions where political or religious matters are part of regular coursework.

I believe that arguments regarding preemption are mistaken. Section 8(c) of the National Labor Relations Act (NLRA) provides that it is not an unfair labor practice for an employer to express a view about unionization, which could include giving a speech in opposition to unionization. 8(c) does not, however, grant employers the right to require that employees be gathered against their will to listen to such views. Nothing in the proposed legislation limits what employers can say or where an employer can say it. Rather, the legislation would make it unlawful for an employer to force an employee, through the threat of physical or economic restrain, to listen to employer views on the subject of unionization or other political issues. This bill would not impede or prevent conversation about issues such as health, safety or economic interests, but rather seeks to prevent coercion in the workplace and protects privacy interests.

NATURE AND SOURCES OF SUPPORT:

Lori J. Pelletier, Secretary-Treasurer, Connecticut AFL-CIO: We support this legislation as it would prevent workers from being forced to attend captive-audience meetings on work time and prevent exhortations by top managers who “predict” workplace closings. This legislation provides workers with the protection they need from abusive employers.

Attorney Daniel Livingston, Livingston, Adler, Pulda, Meiklejohn & Kelly: As a long-time labor, community and civil rights advocate, I support this bill. This bill is part of a national effort to bring the rights of working people into the 21st century. This bill would prevent workers from listening to political, religious, and social propaganda that has nothing to do with work. This bill would provide basic fundamental democratic rights as present law still deems working people to be the property of their employers during the work day.

We know that the United State Chamber of Commerce and the National Association of Manufacturers, among many other large business organizations and national evangelical groups, urged members to use their positions of power to “educate” employees on the need to vote for George W. Bush in 2004. Employers should not be able to force employees to listen to their political propaganda, Republican or Democratic. This bill is an important step towards establishing the principle that in Connecticut, working people are nobody's property, even during the work day.

Regarding potential conflict with the NLRA, I would like to make two points. One, the NLRA does not address Captive Audience Meetings. Nowhere in the Act does it grant or even mention the employer's power to compel workers to listen. That concept comes from state law and can be changed by state law. Two, the Act leaves to the states the job of providing the minimum labor standards that protect working people.

Nothing in this bill interferes with the purposes of the NLRA, whether it is allowing workers the freedom to organize, bargain or to speak against the union. This bill only provides workers the modicum of human dignity that all adult Americans possess.

Rebecca Riofrio, New England Health Care Employees Union: I have been with the union for 10 years and in that time I've had the opportunity to talk with hundreds of health care employees about their experience with captive audience meetings. I support this bill because it would prevent forced indoctrination about unions, religion, or political candidates. No one should be held captive by their employer just because they are paid.

Nickimmy Cunningham, Organizer, AFT Connecticut: As an organizer, I have participated in numerous campaigns where workers have exercised their right to form a union only to have the employer hold a captive audience meeting with their employees to dissuade them from same.

75% of employers facing a union organizing drive hire anti-union consultants. Unionbusters offer legal services, advice and consultation, training seminars, workshops and materials for management and supervisors, and a variety of targeted anti-union propaganda for distribution to employees. Unionbusters' sophisticated advice, training and materials help an employer create a sense of dissention and division among employees during an organizing campaign.

One of the tactics prescribed by unionbusters is captive audience meetings. They are held during work hours to disseminate propaganda against union representation and to attempt to discredit the union. Employees are almost always required to attend, but union supporters may be intentionally disinvited. During a series of meetings, management will attempt to indoctrinate employees about the “problems” unions create, one-sided anti-union communications, and other forms of biased presentations.

H.B. 7326 will restore integrity to the union elected process and put an end to intimidation and fear created by captive audience meetings.

Steven Perruccio, President, Connecticut Employees Union Independent (CEUI), SEIU Local 511: We support this bill because it would prohibit an employer from coercing and intimidating employees into attending or participating in meetings sponsored by the employer concerning the employer's views on religious or political matters.

Brian Anderson, AFSCME Council 4: This bill would allow employees to opt out of attending a meeting where an employer intends to discuss religion, politics or labor organizing.

The Universal Declaration of Human Rights (Article 23, section 4) states that “Everyone has the right to form and to join trade unions for the protection of his interests.” Captive audience meetings surely violate this declaration of the basic rights that every human being is entitled to.

Pre-emption arguments are mute considering that former General Counsel of the national Labor Relations Board, Fred Feinstein, has argued that this bill would not pre-empt federal law.

NATURE AND SOURCES OF OPPOSITION:

AT&T Connecticut: We oppose this bill because it is overly broad and would unreasonably restrict employers' ability to disseminate important information to employees.

We are particularly concerned with this legislation as it would bar legitimate and important communication from employer to employee, even when it is in the employees' best interest to be made aware of the employer's concern. We suggest changing the bill to exempt employers, as a matter of corporate responsibility, from discussing legislation with their employees that would directly affect them. Similarly, mandatory meetings to inform employees of the existence of organization or activities intended to effectuate change in public policy that affects their employers, should not be prohibited.

Andy Markowski, Connecticut State Director, National Federation of Independent Business: We strongly oppose this bill as it:

1. Is federally preempted by the NLRA as an interference with employer speech and the balance struck between employees and employers.

2. Could promote new and costly civil litigation.

3. Would prevent employers from communicating the importance of participating in the political process.

This bill would adversely affect small business owners who may discuss politics, religion or other issues with customers or vendors in a small business environment and prohibit owners from discussing legislation that may affect the business and/or the jobs it provides for employees with those employees.

We also believe that the language in this bill is overly broad and would not only harm existing small business in Connecticut, but also discourage entrepreneurship and relocations of new businesses to the state.

Kia D. Floyd, Assistant Council, Labor & Employment, Connecticut Business & Industry Association: We oppose this bill as it would be very problematic for employers by burdening their ability to effectively manage employees.

This measure would ban employers from talking to their employees at mandatory staff or “captive audience” meetings about many issues which are crucial to the effective management and operation of a business. This legislation would also prohibit discussion about political developments at the State Capitol and elsewhere that affect jobs and the workplace, employee health and safety, government contracts, employees health benefits, and a vast array of other subjects.

There are also serious legal problems with this legislation as it is pre-empted by federal law. In 1935, Congress enacted the NLRA act to encourage a healthy relationship between private-sector workers and their employees. The NLRA was enacted to “insure both the employers and labor organizations full freedom to express their views to employees on labor matters.” Accordingly, states are precluded from governing any area of law covered by the NLRA and therefore is exempted by same.

In 2004, the Office of Legislative Research analyzed a similair bill (H.B. 5490) and concluded that:

• The NLRA guarantees the employer's right to express an opinion about unionization as long as the employer does not also threaten reprisal or promise a benefit.

• The NLRA governs private sector union organizing, collective bargaining rights, and delineates what is an unfair labor practice. The NLRA is administered by the National Labor Relations Board (NLRB), who maintains authority to rule on specific cases alleging unfair labor practices.

• The NLRB has long ruled that an employer (or a union) holding a captive audience meeting of employees within 24 hours of a union election is not an unfair labor practice, but it is grounds for the NLRB to void the election results and order a new vote. The Act and the NLRB allow captive audience meetings more than 24 hours before a union election.

If legislation such as H.B. 7326 were in place during the time of the “Save our Sub Base” campaign, Connecticut's economy would have lost needed jobs and federal funding as the campaign would most certainly have fallen under the broad definition of “political activity”, which is prohibited by this measure.

Louise DiCocco-Beauton, Director of Governmental Affairs, Greater New Haven Chamber of Commerce: We oppose this bill as it would prohibit employers from requiring employees attend or participate in meetings that communicate the employer's position regarding politics, religion, or labor organizing activities.

Section 7 of the NLRA prescribes the rights of employees regarding union organizing activities and is overseen by the NLRB. This proposal would disrupt the regulated process by prohibiting employers from talking to their employees and presenting them with relevant information and facts. Hearing only one side of an argument does not enable employees to make informed decisions.

This bill goes too far down the road in limiting the protected right of freedom of speech and restricting employers in day-to-day operations.

John Zandy, Partner, Wiggin & Dana, on behalf of the Connecticut Hospital Association: The NLRA was enacted in 1935 in large part because Congress wanted to provide an administrative mechanism to peacefully and expeditiously resolve questions concerning union representation.

Section 8 of the NLRA creates a network of prohibitions on employer and union conduct that has a reasonable tendency to interfere with employees' Section 7 rights. Section 8(c) sets forth an explicitly free speech exemption for employees and employers alike, which provides 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 provisions of the act, if such expression contains no threat of reprisal or force or promise of benefit. Following the passage of 8 (c), the NLRB in 1948, approved the use of employer captive audience speeches, provided the union was given an opportunity to reply in similar circumstances.

In 1953, the NLRB further refined its position and held that an employer does not commit an unfair labor practice if he makes a pre-election speech on company time and premises to his employees and denies the union's request for an opportunity to reply, provided the captive audience speech is not delivered within 24 hours preceding an election. The NLRB has consistently applied this rule since that time and it has received approval from the United States Supreme Court.

With that historical context, we oppose this bill for the following reasons:

1. It is preempted by the NLRA and would be invalid if enacted.

2. It would have the unintended effect of subjecting employees to conduct currently unlawful under the NLRA, i.e. voluntarily asking employees to attend meetings. Under the proposed law, employees would be put in the position of identifying themselves to their employer and co-workers as supporting or being against unionization when they choose or choose not to attend or participate. Such self-identification is a form of polling and would run counter to the protection afforded by secret ballot elections and established NLRB law protecting employees in these circumstances.

3. It would interfere with employees' rights by creating impediments to the union organizing process by increasing unfair labor practice charges and lawsuits.

4. It would prohibit the employer's “agents, representatives and designees” from engaging in any of the same conduct that is prohibited for employers, and because of unclear definitions, elected politicians who speak before employees at the invitation of an employer, run the risk of violating the law when they express an opinion that is consistent with the employer's on issue of unionizing, social organizations, religion or politics.

This law is not only preempted by federal law, which has been thoughtfully crafted and refined over decades of case law to guarantee and protect employee rights while maintaining a careful balance in the critical areas of free speech and employee access to information, its anti-business message would discourage employers who have the option to relocate from moving to or staying in Connecticut.

Ann Terranova, Walter Bailey, Linda Coleman, Cheryl Esposito on behalf of “Just Us”, a coalition of Yale-New Haven Hospital Employees: We oppose this bill because we want a secret ballot election, free from union or management and legislative pressure. We feel that the treatment of patients must be foremost in everyone's mind and that we are capable of participating in an un-biased, untainted election run by the NLRB, free of retaliatory tactics by management or labor unions. We have the right to vote and the right to vote in a free election, uninhibited by despicable tactics and deception.

Reported by: Jared W. Kupiec

Date: 4/3/07