Jottings By An Employer's Lawyer

Wednesday, January 18, 2006

Major Chamber of Commerce Victory - Now Back On Hold


The 9th Circuit yesterday granted hearing en banc on a case previously touted as a major legal victory by the United States Chamber of Commerce, way back in 2002 when the Chamber obtained a favorable district court ruling that California legislation prohibiting spending of any state funds to "promote, assist or deter" union organizing (relatively neutral sounding words that overlay a complex piece of statutory regulation designed to force neutrality on many employers regardless of whether state funds are actually used for such purpose) was pre-empted by the NLRA. The legislation, then known as AB 1889, was enacted in 2000.

From that original opinion to yesterday's ruling has not been an easy or quick course. The first panel decision, unaminously affirming the district court was decided in 2004. After a motion for rehearing was filed, a 2nd panel opinion, this time a split decision, also found the statute preempted. That opinion, Chamber of Commerce v. Lockyer (9th Cir. 9/5/05) has now been relegated to the legal dustbin except as it may be adopted by the en banc court.

NLRA premption is one of those murkiest of legal areas and one that has received more than its fair share of Supreme Court attention over the years. At the Cuttiong Edge of Labor Law Preemption: A Critique of Chamber of Commerce v. Lockyer, an article by Stephan Befort, of the University of Minnesota Law School, written after the district court opinion illustrates the complexity of this area. Professor Befort, quite presciently it now appears, argued that the 9th Circuit and "perhaps ultimately the Supreme Court should seize this opportunity for 'litigating elucidation' to add policy-driven clarity to the frontier of NLRA preemption analysis."

While the 9th Circuit still has a turn at the bat thanks to yesterday's ruling, no doubt the Supreme Court will at least have a chance to weigh in if it so desires.


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