Businesses sue to invalidate employer 'gag' law

Carl Sampson/Capital Press Bruce Packing Co., or BrucePac, in Silverton, Ore., is part of a federal lawsuit challenging a new state law that forbids companies from holding mandatory meetings about certain subjects, including unionization.

Statute prohibits employer meetings on unionization attempts


Capital Press

Employers shouldn't have to break a new Oregon labor law in order to challenge the rule in court, according to business groups.

Last year, the Oregon Legislature passed a law, Senate Bill 519, that prohibits employers from penalizing workers who don't participate in meetings about political and religious matters.

Associated Oregon Industries and the U.S. Chamber of Commerce have contested the bill's legality in federal district court, claiming the state law violates the U.S. Constitution and is preempted by federal statute.

The groups worry the rule will restrict workplace speech, preventing employers from talking to workers about the negative aspects of unionization. Oral arguments were held before U.S. District Judge Michael Mosman in Portland on April 9.

Defendants in the case -- a labor union and an Oregon state agency -- claim the two business groups lack standing in the lawsuit.

The Laborers International Union of North America said it hasn't taken action against any employers for violating the new law, so it's too early to name the union as a defendant.

David Rosenfeld, an attorney for the union, said the group can't preclude taking future action, but such a threat is "wholly speculative at this time."

The Oregon Bureau of Labor and Industries claimed the agency's commissioner, Brad Avakian, shouldn't be a defendant in the case because he's not responsible for enforcing the statute.

Scott Oborne, attorney for the plaintiffs, argued the case is ripe for litigation because the law has already chilled free speech in violation of the First Amendment.

"An employer does not have to violate the law in order to challenge the constitutionality of the restriction," Oborne said.

Companies don't want to open themselves up to lawsuits by testing the new law, but they still want to have it declared unconstitutional, he said.

"We're in a unique setting," Oborne said.

John Dunbar, attorney for Avakian, acknowledged the requirements for standing are more relaxed in lawsuits about freedom of speech infringements, but the looser standard doesn't apply to this case.

"There is no First Amendment right to compel others to listen to your speech," Dunbar said.

The law is intended to provide aggrieved workers with an independent course of legal action against employers, he said.

As commissioner for the Oregon Bureau of Labor and Industries, Avakian does not have the authority to enforce the bill, Dunbar said. There's no evidence a complaint has even been filed with the bureau or anywhere else, he said.

"How can there be a credible threat?" Dunbar said.

Oborne countered that the Oregon Bureau of Labor and Industries has an "overriding statutory obligation" to investigate breaches of employee protection laws.

For that reason, Avakian can't decide to not enforce the new rule, he said. "That would violate Oregon law."

Oborne said that a member of Associated Oregon Industries, Bruce Packing Co., or BrucePac, has been targeted as part of a unionization effort by LIUNA.

The Silverton, Ore.-based meat packing company previously communicated with its workers about the unionization campaign, but began censoring itself after the new law became effective in 2010, said Glen Golomski, the company's CEO, in a written declaration.

If the company continued to hold mandatory meetings about unionization, LIUNA would likely protest the decision and challenge it in court, Oborne said.

Those potential actions, and company self-censorship, is enough to establish the plaintiffs' standing in the case, he said. "All of that is harm."

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