Jottings By An Employer's Lawyer

Tuesday, June 23, 2009

Oregon Statute Could Bar Captive Audience Speeches in Union Campaigns

Last Friday, the Oregon House passed SB 519 a bill that was passed earlier this month by the Oregon Senate. As passed, the bill would preclude an employer from mandating that an employee attend certain meetings.

The bill prohibits:
An employer or the employer's agent,representative or designee 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) Who declines to attend or participate in an employer-sponsored meeting or communication with the employer or the agent, representative or designee of the employer if the primary purpose of the meeting or communication is to communicate the opinion of the employer about religious or political matters;
and political matters:
includes political party affiliation, campaigns for legislation or candidates for political office and the decision to join, not join, support or not support any lawful political or constituent group or activity.
And to round it out, constituent group or activity, includes:
but is not limited to, civic associations, community groups, social clubs and mutual benefit alliances, including labor organizations.
Net result, if it should ever come to pass, a major impact on union organizing campaigns as traditionally run.

Still, the "could" in the headline deserves heavy emphasis. Before this bill allows the first employee to skip a scheduled meeting, it must be signed into law by Oregon's Gov. Ted Kulongoski. According to an AFL-CIO website, at least before its final passage, the Governor had said he would sign the bill. Oregon Bill Bans Mandatory Meetings.

The second big hurdle is the anticipated litigation that this statute is pre-empted by the National Labor Relations Act and/or that it is unconstitutional. My guess is both arguments are formidable, but it will take some time for them to play out.

Although it is not generally expressed in exactly these terms, for purposes of labor and employment law in America the fundamental principle is that "jobs" have belonged to the employer. This Oregon statute may only be a "left coast" thing, or it could be a sign that we may are approaching a major shift from "jobs" belonging to the employer, to "jobs" belonging to those who hold them.

Whether you think that is a good thing or a bad thing, it should not be overlooked that such change would be of epic proportion.


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