New York’s Labor Neutrality Act is part of a systematic, state-by-state attempt by unions to restrict employers’ free-speech rights and is preempted by the federal National Labor Relations Act, The Business Council has told a federal district court considering a challenge to the law.
The Council raised the arguments in an amicus curiae brief it submitted in a case in federal court in which various employer groups are challenging the law. The brief, submitted November 12, asks the court to find that the Labor Law restricts employers’ First Amendment free-speech rights and is preempted by the NLRA.
The Legislature passed the bill in July 2002 with broad support in both parties, despite strong objections from The Council and groups representing hospitals, nursing homes, and other health-care providers.
The new law restricts the ability of employers to use public funds to hire or pay attorneys, consultants, or other contractors that encourage or discourage union organization, or participation in union drives, or to hire or pay the salary of employees whose principal job duties are to encourage or discourage union organization or participation in drives.
Employers that receive state funds can be required to prove that they did not spend any of the funds inappropriately, and must submit those records to any state entity and the state attorney general if asked to do so.
“The central issue here is whether New York State can use its spending power to compel employers to remain neutral during a union organization campaign,” the brief said. “[We] submit that it cannot.”
The law prohibits the use of state funds for certain activities of employers but “ironically” allows employees paid by state funds to participate in a union organizing campaign, the brief continued.
Most importantly, the state’s new labor law directly contradicts the national standard set by the NLRA, which should preempt the state law, the brief argues.
The only case in which a state is not subject to preemption by NLRA is when the proposed law addresses a “deeply rooted” local concern, the brief said, citing several precedents.
But the new law’s “sole purpose is to prohibit the use of state funds so that employers can lawfully communicate with its employees during an organizational campaign,” the brief said.
“It does not address a deeply rooted local concern and is therefore not saved from preemption.”