On June 19, 2008, in a widely anticipated decision, the United States Supreme Court overturned a decision of the Ninth Circuit Court of Appeals and ruled in a 7-2 opinion
authored by Justice Stevens that the National Labor Relations Act (NLRA) "unequivocally pre-empted California's "union neutrality law, which prohibited employers who accept state funds from using those funds to deter union organizing. Chamber of Commerce v. Brown, No. 06-939 (June 19, 2008). This decision is welcome news for many employers who do business in California and were faced with the burdensome accounting task of separating state-provided funds from other funds in order to counter union organizing attempts. The decision also provides assurance to employers doing business in other states that have contemplated adopting a law similar to California's.


History of an Employer's Free Speech Rights Under The NLRA

Congress passed the original NLRA (also known as the Wagner Act) in 1935. The Wagner Act made no mention of an employer's right to free speech, and the National Labor Relations Board (NLRB) initially took the position that the Wagner Act demanded complete employer neutrality during organizing campaigns. In 1941, however, the Supreme Court held in NLRB v. Virginia Electric & Power Co.,1 that the Wagner Act did not prohibit an employer from expressing its views on labor relations matters unless its views were coercive. Four years later, the Supreme Court characterized Virginia Electric as recognizing an employer's First Amendment right to free speech.



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