Connecticut Attorney General William Tong on Friday broke with former Attorney General George Jepsen and issued a short, three-page opinion stating one of Democratic lawmakers’ latest captive audience bills would not be preempted by national labor law. Former Attorney General Jepsen issued a formal opinion in 2018 that Democrats’ captive ...
Unions push legislation to limit employers’ free speech
A bill passed by the Judicial Committee on Monday would restrict employers from holding meetings with their employees regarding unionization efforts, potentially setting Connecticut up for a federal labor relations fight.
The legislation was pushed heavily by state union leaders and representatives. This is the fourth attempt at passing so-called “captive audience” legislation in Connecticut.
Similar bills were attempted in 2009 and 2010, finally culminating with a 12-hour debate on the House floor in 2011. The issue died after Attorney General George Jepsen determined the National Labor Relations Act pre-empted state regulations.
Despite the long history, House Bill 5473 passed out of committee on Monday with amendments allowing employers to hold meetings regarding legislation and regulations which would affect their business.
HB 5473 would allow employees to file suit if they are threatened with discipline for not attending a meeting in which an employer will discuss employee unionization efforts.
Unions see it as a way to increase union membership in the private sector, making it easier for workers to unionize, but business leaders say the bill is another ill-conceived regulation on Connecticut businesses, one which limits employers’ free speech and will not hold up in court.
The Connecticut Hospital Association said in written testimony that HB 5479 “is not neutral but seeks to limit the free speech rights of employers but not unions.”
The legislation, if passed, may pit Connecticut against the National Labor Relations Board, which oversees the employee rights to organize and collectively bargain, but also protects both employees’ and employers’ free speech rights.
States are not permitted to regulate labor issues and practices covered under the NLRA. Section 8 of the NLRA provides a long list of restricted employer activities, including any threats of job or benefit loss for supporting unionization efforts.
However, the Act also protects employers’ ability to make their opinion known.
Section 8 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.”
The Connecticut Business and Industry Association presented a bill analysis by Charles I. Cohen, a former member of the NLRB appointed by President Bill Clinton in 1994. Cohen said the proposed Connecticut legislation “runs afoul” of federal law and would lose the inevitable lawsuit by state businesses.
Cohen says the bill attempts to provide Connecticut a “carve out” from federal governance under the NLRA. “What is most striking is how the legislation ignores decades of federal law on employer free speech rights under the NLRA,” Cohen wrote.
The Connecticut Hospital Association pointed out that a similar law passed in Wisconsin resulted in a lawsuit overturning the law and awarding a settlement in 2010.
But Paul Secunda, professor and director of the Labor and Employment Program at Marquette University Law School argues that holding a mandatory meeting is not an expression of free speech but is better classified as “conduct” and not protected by the NLRA.
“Although one may not… interfere with employer or union speech, the conduct associated with these meetings, particularly their mandatory nature, may be regulated.”
The bill comes as union membership in the private sector has declined nationally.
Union membership is nearly half of what it was in 1983 when the Bureau of Labor Statistics began keeping records with the remaining holdout of union power concentrated largely in state government.
However, in an effort to rebuild their presence in the private sector, union leaders are using their influence in government to push legislation which they believe would help grow union membership in the private sector.
Two of the bill’s co-sponsors are either current or former union employees. Rep. Michael Winkler, D-Vernon, was president of the Administrative and Residual Employees Bargaining Unit, AFT Local 4200, which represented thousands of state employees, according to Winkler’s biography.
Sen. Gary Winfield, D-New Haven, is employed by the Connecticut State University chapter of the American Association of University Professors.
But Cohen notes that state’s attempts to override or sidestep federal labor law — including states which have tried to make laws hindering union organization — have come up short or resulted in lawsuits against the state by the National Labor Relations Board.
“Connecticut has little to gain, and much to lose, by joining a small minority of states seeking to battle the federal government over its regulation of labor relations matters,” Cohen wrote. “Such a battle will lead to unnecessary legal costs and burdens on Connecticut.”
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