U.S. Supreme Court Rules Captive Audience Laws Pre-Empted

By Anna M. Dailey

Dinsmore & Shohl LLP

During the 2008 Legislative Session there was considerable debate over “Captive Audience Legislation.” The state's various labor unions pushed hard for legislation which would prohibit private employers from bringing their employees together and expressing management's opinion on a union organizing effort. Businesses across the state opposed the legislation because the federal government has already regulated this area of law under the National Labor Relations Act (NLRA), giving employers the right of free speech so long as it is not coercive or threatening.

The West Virginia House of Delegates passed the Captive Audience legislation, despite various delegates voting for it, who acknowledged that the proposed legislation was probably preempted by federal labor law (NLRA). Wisely, the West Virginia Senate chose to wait on the United States Supreme Court's decision in a pending case: Chamber of Commerce v. Brown. On June 19, 2008, the United States Supreme Court in a 7-2 decision found that captive audience legislation passed in California was preempted by federal labor law. In the California case, the captive audience legislation prohibited employers who received state funding to hold captive audience meetings and left enforcement to a state agency.

The Supreme Court's recent decision explains the history of the NLRA, which was enacted in 1935 and amended in 1947. In 1947, Congress added Section 8(c) to the NLRA which specifically protects free speech by both unions and employers, thereby protecting the First Amendment rights of all interested parties. The Supreme Court acknowledged that the NLRA favors "uninhibited, robust, and wide-open debate in labor disputes". Further, the Court pointed out that it is the NLRB or Labor Board which is charged with determining whether such free speech becomes coercive, and therefore unlawful, not state enforcement agencies.

In short, had both houses of the West Virginia legislature passed the Captive Audience legislation being pushed by the state's various unions, and the law signed into effect, it would surely have been ruled preempted and unenforceable by the federal courts. This would have been a costly and needless expense to the state's coffers.

All those employers and employees who took the time to contact their elected representatives are also to be commended.