District Court Amicus Brief of Law Professors in Support of Defendants, Associated Oregon Industries v. Avakian, No. 3:09-CV-1494-MO

Paul M. Secunda

Marquette University - Law School

March 22, 2010

Amici curiae law professors filed this brief to urge the United States District Court for the District of Oregon to deny Plaintiffs' summary judgment motion. That motion argues that SB 519, Oregon state legislation that prohibits employers from firing workers who refuse to attend captive audience meetings about the employer's political, religious, or union views, is invalid as preempted by the National Labor Relations Act (NLRA) and inconsistent with the First Amendment of the federal Constitution.

This brief argues that a finding of NLRA preemption in this case would be both inconsistent with Congress’ purposes in enacting the NLRA and with principles of federalism which give the states and federal government shared authority over the employment relationship. Traditional areas of state concern are within the states' power to regulate and, therefore, not within the scope of NLRA preemption. There are two sources of applicable authority here: (1) the state can place property restrictions on the bundle of property rights that the state grants to its property owners and (2) the state can provide for minimum conditions in the workplace under its police powers.

Employers in Oregon are still able to communicate their views about unionization with their employees as Section 8(c) of the NLRA contemplates, but are forbidden from engaging in conduct that forces these same employees to listen to such presentations on pain of losing their jobs or other benefits of employment. The right to speech simply does not include the right to compel someone to listen. Not under the First Amendment and certainly not under statutory law. In short, amici law professors maintain that the Court should find that Oregon had the inherent power to enact SB 519 and such promulgation is consistent with the reach and purposes of the NLRA and with principles of federalism.

Number of Pages in PDF File: 18

Keywords: NLRA preemption, captive audience meetings, Oregon, SB 519, property right, minimum conditions, Section 8(c)

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Date posted: March 25, 2010  

Suggested Citation

Secunda, Paul M., District Court Amicus Brief of Law Professors in Support of Defendants, Associated Oregon Industries v. Avakian, No. 3:09-CV-1494-MO (March 22, 2010). Available at SSRN: https://ssrn.com/abstract=1576706 or http://dx.doi.org/10.2139/ssrn.1576706

Contact Information

Paul M. Secunda (Contact Author)
Marquette University - Law School ( email )
Eckstein Hall
P.O. Box 1881
Milwaukee, WI 53201
United States
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