California Labor & Employment Law Blog

By Mark Spring

In 2000, California enacted AB 1889.  That bill, codified as section 16645 of the California Government Code, provides that government employers and private employers that contract with the government are prohibited from using government funds to assist, promote, or deter union organizing.  In practicality, what the bill does is prohibit public employers and private employers doing business with the California government from influencing a union campaign and allows union organizing of such employers to be done without any counter campaigning from the employer.  In other words, the law acts to silence any affected employer in a union organizing campaign. 

Shortly after AB 1889 was enacted, other states began enacting similar provisions.  In the meantime, the United States Chamber of Commerce sued claiming that the law violated the Constitutional right to free speech and was preempted by the National Labor Relations Act.  The suit made its way up to the United States Supreme Court.  Oral arguments were held on March 19.  Earlier this week, in United States Chamber of Commerce v. Brown, the United States Supreme Court issued its decision, reversing a previous Ninth Circuit ruling.  In a 7-2 vote with Justices Ginsburg and Breyer dissenting, it struck down the law and held that AB 1889 is preempted by the NLRA.  More specifically, the Court held that in the NLRA Congress held that there were certain areas and conduct that must be left open to free debate without regulation and that AB 1889 was in violation of that intent.