November 27, 2010
November 27, 2010
By: J.L. Wilson
Associated Oregon Industries
While AOI’s federal lawsuit against SB 519 – the “Employer Gag Bill” – ran into initial roadblocks earlier this year, the next state to pass the bill, Wisconsin, saw the law invalidated by a Stipulation for Dismissal filed in the U.S. District Court for Eastern Wisconsin on Friday.
In the Stipulation, the State of Wisconsin agreed not to bring suit against employers who take action against employees who fail to attend mandatory employer meetings in which union issues are discussed. This legislation, Act 290, was passed by the Wisconsin Legislature in 2009.
The concession by the State of Wisconsin was included in a Stipulation for Dismissal in the case of the Metropolitan Milwaukee Association of Commerce (MMAC) and Wisconsin Manufacturers & Commerce (WMC) against Wisconsin Governor Jim Doyle. The MMAC and WMC sued to block provisions of Act 290 which were nearly identical to the provisions of Oregon SB 519.
The Stipulation declares the Act 290 provisions regarding unions is pre-empted by the National Labor Relations Act under the Supremacy Clause of the U.S. Constitution. This is the same argument made by AOI in its federal challenge of Oregon SB 519. However, the federal judge in AOI’s case ruled that AOI could not proceed with its lawsuit until one of its members was actually sued under SB 519.
Meanwhile, in Washington, DC, the National Labor Relations Board (NLRB) is requesting advice on its 2007 decision in the Dana Corp case. There, the Republican-majority Board ruled 3-to-2 that employees must have 45 days after their employer recognizes a union based on card-check authorizations to file a petition to decertify the union or to support an election petition from another union. The board underscored the preferred method of having a secret election to determine the majority status of a union. The majority found that card-check procedures are much less reliable as indicators of employee free choice on union representation than secret elections. In fact, since the Dana decision, 25% of the 54 Dana elections conducted by the NLRB, with employees exercising their right to a secret ballot, have resulted in the rejection of the employer’s initial voluntary recognition of a union.
Now that the current board is comprised of a 3-to-2 Democrat majority, it is reconsidering the Dana ruling. You can see the comments of the National Association of Manufacturers here.
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