Charles Cohen, a former Clinton appointee, says Connecticut would violate federal law with its captive audience bill.
According to a former Clinton Administration labor lawyer the captive audience bill being considered by the Connecticut Senate could prompt costly lawsuits against the state by employers or even the federal government.
Morgan, Lewis & Bockius senior counsel Charles Cohen, who served on the National Labor Relations Board from 1994 to 1996 as a Clinton appointee, suggests in a legal opinion that the NLRB itself could sue the state to protect its ability to regulate labor relations without interference from the states.
The Connecticut Business & Industry Association hired Cohen to provide an opinion on the legislation. He sent a letter dated May 18 to Joseph Brennan, executive vice president of CBIA.
“Based on my detailed review of House Bill No. 5460, it is my view that this legislation runs afoul of federal labor law and is preempted by the National Labor Relations Act,” Cohen wrote. “A legal challenge from the business community, and potentially the NLRB itself, would likely follow the enactment of House Bill No. 5460, with unnecessary financial and public relations expense to the State.”
The captive audience bill has already passed the House and is awaiting action in the Senate.
CBIA hired Cohen to review the bill because of his expertise in labor law and experience on the NLRB, according to Brennan.
The association has opposed the captive audience bill for years, according to Brennan, because of the chilling effect it would have on conversations with employees and the potential for costly litigation.
Brennan said he has never worked for a company that made a distinction between mandatory and non-mandatory meetings.
“There’s just meetings and you’re expected to attend,” he said.
However, if the captive audience bill passes, Brennan said employers might have to begin making a distinction between mandatory and optional meetings based on their content.
Brennan said CBIA and its members look at the captive audience legislation as “the straw that broke the camel’s back” in the context of paid sick leave legislation and recent tax increases.
“We’ve shared [the letter] with legislators and the administration,” Brennan said. “We’ve been using it in our efforts to defeat the bill.”
He said he didn’t know if the letter had swayed any votes, but it had “shored up some people” who were leaning against voting for the bill.
“We’ve received a copy of the letter and the Governor’s legal staff is reviewing its contents and examining the legal conclusions asserted in it,” said Colleen Flanagan, spokesman for Gov. Dannel Malloy.
According to Cohen, the bill seeks to regulate aspects of union organizing that are already regulated at the federal level by the NLRB, which could prompt the NLRB to sue to protect its authority.
“What is most striking is how the legislation ignores decades of federal law on employer free speech rights under the NLRA,” Cohen said. “As a result, Connecticut’s legislation would be subject to preemption by federal labor law and rendered null and void once challenged in federal court by an individual employer, and employer association or trade group, or even the NLRB.”
Cohen cites as an example Chamber of Commerce v. Brown, a 2008 U.S. Supreme Court decision that struck down a California law preventing state contractors from opposing unionization.
He said NLRB “has been aggressively asserting its jurisdiction in the face of ‘patchwork’ state laws designed to regulate private-sector labor relations.”
“After the NLRB’s attempt to amicably resolve the dispute with state officials failed, the NLRB filed suit against Arizona to ensure that federal law remains paramount over contradictory state law,” Cohen said. “Litigation by the NLRB against South Carolina, South Dakota and Utah is likely to occur.”
Cohen said the NLRB is just as likely to oppose state laws supported by labor unions – as is the case with captive audience in Connecticut– as it is to challenge laws opposed by labor unions in other states.
“And while this letter is not intended to address the broader free speech issues presented by the legislation, there are obvious First Amendment concerns with generally restricting employer free speech rights,” Cohen said. “Additional litigation and legal costs to the State in defending First Amendment claims should be expected.”
Brennan said CBIA is considering hiring another legal expert to specifically address the constitutional issues. Hans Bader, counsel for special projects at the Competitive Enterprise Institute, summarized some of the bill’s constitutional problems earlier this year.
“Such a battle will lead to unnecessary legal costs and burdens on Connecticut,” Cohen said. “Connecticut has little to gain, and much to lose, by joining the ranks of the small minority of states seeking to battle the federal government over its regulation of labor relations matters.”