The first branch of the
Garmon preemption doctrine is at issue, and preempts AB 1889. Congress' intent, the Supreme Court and Ninth Circuit precedent all lead inextricably to the conclusion that Section 8(c) of the NLRA
actually grants and protects speech rights of employers.
See supra § I. Because the Act is a comprehensive regulatory scheme, to say that an activity is not punishable by the Act is the equivalent of protecting that activity. AB 1889 encumbers these speech rights, and in doing so, interferes with the jurisdiction of the NLRB. Congress has directed the NLRB to oversee elections and determine what conduct constitutes an unfair labor practice under the Act.
See 29 U.S.C. § 158(a)(1). Broadly speaking, and consistent with Section 8(c) of the NLRA, the NLRB takes a
laissez faire approach to employee and employer speech, allowing passionate, partisan debate to proceed during a union organizing campaign.
See Trent Tube Co., 147 NLRB 538, 541 (1964). At the same time, the NLRB has jurisdiction to regulate a certain bandwidth of employer speech, to ensure compliance with Section 8(c).
See Midland Nat'l Life Ins. Co., 263 NLRB 127, 133 (1982) (“[W]e will no[t] probe into the truth or falsity of the parties' campaign statements, and [ ] will not set elections aside on the basis of misleading campaign statements.... [But] we will continue to protect against other campaign conduct, such as threats, promises, or the like, which interferes with employee free choice.”). For example, the NLRB has long enforced various “time, place, and manner” rules that bar certain types of campaign and speech activities in the vicinity of the polls or in the final hours before an election.
See Peerless Plywood Co., 107 NLRB at 429–30;
Milchem, Inc., 170 NLRB 362, 362–63 (1968). The NLRB has held that, consistent with Section 8(c), employers may hold mandatory meetings with employees about union organizing efforts,
Livingston Shirt Corp., 107 NLRB at 409, direct supervisors to informally discuss a representation campaign with employees,
see Stanley Oil Co., 213 NLRB 219, 225 (1974), and distribute anti-union literature to employees even when enforcing a no-solicitation rule to employees,
Beverly Enterprises–Hawaii, 326 NLRB at 336.