Congrats to WMC for Ruling to Affirm Employer Speech

Congratulations to the Wisconsin Manufacturers and Commerce (WMC) for the group’s successful challenge to a state law that attempted to restrict employers’ rights to communicate with their employees during union organizing campaigns. From WMC’s “Insight: Union Organizing Statute Found Unconstitutional“:

Earlier this year, Governor Jim Doyle signed Act 290, making Wisconsin the second state in the nation to attempt to strip employers of their right to hold “captive-audience” talks with their workforce. Act 290 amended the Wisconsin Fair Employment Act (WFEA) to prohibit employers from disciplining employees who refuse to attend “employer-sponsored meetings” or “participate in any communication with the employer or agent, representative, or designee of the employer” where the “primary purpose” of the meeting or communication is to express the employer’s “opinion” about an employee’s decision to join or support a union….

WMC and the Milwaukee Metropolitan Association of Commerce had urged Gov. Doyle to veto the bill and thus subsequently filed suit, challenging the state law as a violation of the National Labor Relations Act. More from WMC:

The suit asserted that the WFEA amendments were preempted by the NLRA and violated the free speech rights Wisconsin employers enjoy under the First and Fourteenth Amendments of the United States Constitution.

Governor Doyle and Department of Workforce Development Secretary Roberta Gassman, the named defendants in the lawsuit, finally recognized that Wisconsin employers were guaranteed free speech rights under the NLRA, and on November 15, 2010, Chief U.S. District Judge Charles N. Clevert, Jr. entered a Judgment and Order, agreed to by the Governor and the Secretary, in favor of WMC and MMAC and their employer members on the NLRA preemption claim. This judgment declares the WFEA amendments unconstitutional insofar as they prohibit employers from disciplining employees who refuse to attend a workplace meeting or participate in any communication about the decision to join or support a union. Further, the Order permanently enjoins the State of Wisconsin from enforcing or seeking to enforce the WFEA amendments.

The order is available here, which also includes Chief Judge Clevert’s order that the state to pay $18,480 in legal fees. (See also AP report.) The text of the now-invalid Act 290 is here.

Yes, the affirmation of the federal preeminence in employer-labor negotiations does point out the basic legal flaw in the recent voter-approved measures in four states to affirm the secret ballot. That’s why defeating the Employee Free Choice Act in Congress is so important and why the National Labor Relations Board must be closely followed.

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