Labor & Employment Law Daily NLRB challenges Oregon law protecting employees’ refusal to attend employer-sponsored meetings on political matters
Thursday, February 13, 2020

NLRB challenges Oregon law protecting employees’ refusal to attend employer-sponsored meetings on political matters

By Pamela Wolf, J.D.

The Oregon law is allegedly preempted under the NLRA and the Board’s jurisdiction over matters, such as compulsory meetings held by employers to discuss their views about unions.

The NLRB is asking a federal district in Oregon to declare that the state’s statute, “Discrimination for nonparticipation in employer sponsored meetings about religious or political matters,” is invalid because it is preempted by the NLRA. Specifically, the federal agency’s complaint challenges Oregon Laws 2009, chapter 659, subchapters 780 and 785.

The Oregon statute. Enacted in 2010, the Oregon law (as described in the complaint) provides that “an employer may not discharge, discipline or otherwise penalize or threaten to discharge, discipline or otherwise penalize or take any adverse employment action against an employee:

a) Because the employee declines to attend or participate in an employer-sponsored meeting or communication with the employer . . . if the primary purpose of the meeting or communication is to communicate the opinion of the employer about religious or political matters;
b) As a means of requiring an employee to attend a meeting or participate in communications described in paragraph (a); or
c) Because the employee makes a good faith report, orally or in writing, of a violation or suspected violation of this section.”

The statute defines “political matters” to include “the decision to join, not join, support or not support any lawful political or constituent group,” according to the complaint. A “constituent group” includes a labor organization.

Remedies. The NLRB states that under the Oregon law, prevailing claimants may be awarded reinstatement, back pay, and reestablishment of employee benefits, including seniority, as well as treble damages, attorney’s fees, and costs. “These provisions apply to private employees and employers also subject to the NLRA,” the federal agency alleges.

Preemption. The NLRB asserts that the doctrine of preemption prohibits states from regulating any activity that the NLRA “protects, prohibits or arguably protects or prohibits”—in other words, “activity that is subject to the regulatory jurisdiction of the NLRB.”

“Congress has entrusted the NLRB with exclusive control over union election proceedings and the determination of the steps required for a fairly conducted election proceeding,” the Board contends.

Further, the NLRB has long permitted compulsory employee attendance at meetings held by employers to discuss their views about unions, provided the meeting is not held within 24 hours before a union election, the Board said. The Oregon statute is thus preempted “because it conflicts with the NLRB’s regulation of employer conduct during a union election campaign and the NLRB’s ability to regulate unfair labor practices, with respect to employers under the jurisdiction of the NLRA,” the Board argues.

The NLRB filed its lawsuit, NLRB v. Oregon, in the District of Oregon, Eugene Division; the case is No. 6:20-cv-00203-MK.

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