Case Study:
[Organizations whose members do business with the State of California, including the U.S. Chamber of Commerce, sued the state to enjoin enforcement of “Assembly Bill 1889” (AB 1889), which, among other things, prohibits employers that receive state grants of more than $10,000 in state program funds per year from using the funds “to assist, promote, or deter union organizing.” The district court granted the plaintiffs’ partial summary judgment, holding that the National Labor Relations Act preempts AB 1889 because it regulates employer speech about union organizing under circumstances in which Congress intended free debate. The Ninth Circuit reversed, concluding that Congress did not intend to preclude states from imposing such restrictions on the use of their own funds. The Supreme Court agreed to hear the case.] STEVENS, J.… Congress’ express protection of free debate forcefully buttresses the pre-emption analysis in this case. Under Machinists, congressional intent to shield a zone of activity from regulation is usually found only “implicit[ly] in the structure of the Act,” Livadas v. Bradshaw, 512 U.S. 107, 117, n. 11 (1994), drawing on the notion that “‘[w]hat Congress left unregulated is as important as the regulations that it imposed,’” Golden State Transit Corp. v. LosAngeles, 493 U.S. 103, 110 (1989) (Golden State II). In the case of non-coercive speech, however, the protection is both implicit and explicit. Sections 8(a) and 8(b) demonstrate that when Congress has sought to put limits on advocacy for or against union organization, it has expressly set forth the mechanisms for doing so. Moreover, the amendment to § 7 calls attention to the right of employees to refuse to join unions, which implies an underlying right to receive information opposing unionization. Finally, the addition of § 8(c) expressly precludes regulation of speech about unionization “so long as the communications do not contain a ‘threat of reprisal or force or promise of benefit.’” Gissel Packing, 395 U.S., at 618…. In NLRA pre-emption cases, “‘judicial concern has necessarily focused on the nature of the activities which the States have sought to regulate rather than on the method of regulation adopted.’”… (“Pre-emption analysis … turns on the acutal content of [the State’s] policy and its real effect on federal rights”.). … As the statute’s preamble candidly acknowledges, the legislative purpose is not the efficient procurement of goods and services, but the furtherance of a labor policy. See 2000 Cal. Stats. ch. 872, § 1. Although a State has a legitimate proprietary interest in ensuring that state funds are spent in accordance with the purposes for which they are appropriated, this is not the objective of AB 1889. In contrast to a neutral affirmative requirement that funds be spent solely for the purposes of the relevant grant or program, AB 1889 imposes a targeted negative restriction on employer speech about unionization. Furthermore, the statute does not even apply this constraint uniformly. Instead of forbidding the use of state funds for all employer advocacy regarding unionization, AB 1889 permits use of state funds for select employer advocacy activities that promote unions. Specifically, the statute exempts expenses incurred in connection with, inter alia, giving unions access to the workplace, and voluntarily recognizing unions without a secret ballot election. §§ 16647(b), (d)… The statute also imposes deterrent litigation risks. Significantly, AB 1889 authorizes not only the California Attorney General but also any private taxpayer—including, of course, a union in a dispute with an employer—to bring a civil action against suspected violators for “injunctive relief, damages, civil penalties, and other appropriate equitable relief.” § 16645.8. Violators are liable to the State for three times the amount of state funds deemed spent on union organizing §§ 16645.2(d), 16645.7(d), 16645.8(a). Prevailing plaintiffs, and certain prevailing taxpayer intervenors, are entitled to recover attorney’s fees and costs, § 16645.8(d), which may well dwarf the treble damages award. Consequently, a trivial violation of the statute could give rise to substantial liability…. … AB 1889’s enforcement mechanisms put considerable pressure on an employer either to forgo his “free speech right to communicate his views to his employees,” Gissel Packing, 395 U.S., at 617, or else to refuse the receipt of any state funds. In so doing, the statute impermissibly “predicat[es] benefits on refraining from conduct protected by federal labor law,” Livadas, 512 U.S., at 116, and chills one side of “the robust debate which has been protected under the NLRA,” Letter Carriers, 418 U.S., at 275…. [Reversed and remanded.]
Q1. What is the meaning of the term “noncoercive speech” widely referenced in the Court’s opinion?
Q2. Preemption under the Machinists rule forbids both the NLRB and the states from regulating conduct that Congress intended “be unregulated and left to be controlled by the free play of economic forces.” How does the Machinist rule apply to the present case?
Your answer must be, typed, double-spaced, Times New Roman font (size 12), one-inch margins on all sides, APA format and also include references.