Judge rules business groups lack standing on free speech law

By MATEUSZ PERKOWSKI

Capital Press

A federal judge has dealt a legal setback to opponents of a new Oregon labor law which they claim limits employers' free speech rights.

On May 6, U.S. District Judge Michael Mosman ruled that business groups lacked legal standing to challenge the law, which effectively prohibits employers from holding mandatory meetings about political or religious issues.

However, Mosman's decision did not touch on the fundamental questions of whether the Oregon statute is preempted by federal law and violates the U.S. Constitution.

"That fight is left for another day," said Scott Oborne, attorney for Associated Oregon Industries, a plaintiff in the case. "There has been no determination of whether the law is valid or not. But it does leave employers in a tough spot."

Senate Bill 519 was passed by Oregon's legislature in June 2009 and challenged by Associated Oregon Industries and the U.S. Chamber of Commerce in December.

The law will likely be used to prevent employers from speaking to workers about the downsides of unionization, according to their legal complaint.

The groups filed suit against Brad Avakian, head of the Oregon Bureau of Labor and Industries, as well as the Laborers International Union of North America, which supported the bill's enactment.

Attorneys for Avakian and the union argued they shouldn't have been named as defendants in the lawsuit because the statute hadn't actually been enforced against any employers.

Plaintiffs claimed they should be allowed to pursue the case because it deals with an infringement on the First Amendment right to free speech, which is subject to a broader definition of standing.

Mosman disagreed with that argument, ruling that standing requirements are only relaxed in First Amendment cases in which the plaintiffs are subject to the enforcement action of a government agency.

The new Oregon law allows workers to file suit against an employer for violating the ban on political and religious mandatory meetings.

According to the ruling, Avakian cannot be a defendant in the case because he vowed not to enforce the statute.

As for the union, the judge ruled that it can't be sued for a future action that hasn't yet been taken.

Oborne said he may ask the judge to reconsider the ruling, appeal the decision to the 9th U.S. Circuit Court of Appeals or simply wait until an Oregon employer suffers a more concrete harm from the statute.

"The lawsuit is still active and there are steps that can still be taken," Oborne said.

If an employer is eventually sued for violating the law, the company would clearly have standing in the case. However, that leaves employers in the position of having to violate the law before they can challenge it in court.

"This is exactly what the unions wanted," said Oborne. "They want a chilling effect."

David Rosenfeld, an attorney for the laborers union, said he argued the plaintiffs lacked standing for legal reasons, not to chill free speech.

The union didn't want the case to be decided on its merits only to have the ruling overturned on appeal due to issues of standing, Rosenfeld said.

"They need a good case to litigate, and this was not it," he said. "This was the plaintiffs' fault for jumping the gun here."

Farmers may be especially prone to challenges under the new law, said Tim Bernasek, an attorney who filed a "friend of the court" brief in the case for the Oregon Farm Bureau.

Agricultural employers aren't subject to the National Labor Relations Act, which governs communications between employers and workers.

Other employers would be able to argue that Oregon's new law is federally preempted by the NLRA, but farmers wouldn't have that option, Bernasek said.

"We would have one less arrow in the quiver," said Bernasek.

Unless the statute is overturned on First Amendment grounds, farmers would still be susceptible to lawsuits, he said.

The dispute over Oregon's statute could have national implications because similar bills have been introduced in 13 other states, said Robin Conrad, attorney for the U.S. Chamber of Commerce.

"We know this is part of the unions' grand plan to encourage adoption of similar statutes," she said. "This is round one of a pretty big battle."

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