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To anyone interested in the future health of organized labor, they should know that it just took a decided turn for the worse. On Thursday, June 19, the U.S. Supreme Court struck down a California law which had made it illegal for employers to spend state-provided funds in their propaganda campaigns to discourage employees from voting for union representation.
By a 7-2 vote (Justices Breyer and Ginsburg were the two dissenters), the Court overruled the U.S. 9th District Court of Appeals and declared that, by infringing on an employer’s right to “free expression,” the California state law was unconstitutional.
The measure, known as California Assembly Bill 1889, was the first one of its kind to be passed in the United States. However, since its passage, in 2000, ten other states, including New York and Florida, have gone on to enact similar laws. As a consequence of this decision, all of those state laws are unenforceable.
In effect, the ruling means that a business which regularly receives taxpayer funds (such as a nursing home) is permitted to use those funds—to spend that money—on its efforts to keep a labor union out, to prevent a union from representing its employees. Let’s run that by again, slowly: Unions aren’t allowed to use state money in their recruitment drives, but management is allowed to use it in their attempt to keep them out?
If that sounds a bit, well, one-sided, that’s exactly how it seemed to Justice Breyer, who noted that the courts generally give state legislatures “broad authority to spend [taxpayer] money” any way they choose. According to Breyer, if Californians choose not to have their tax money used in management campaigns to keep the unions out, “why should they be conscripted into paying?”
In response to the argument that the law was a violation of the Constitution’s freedom of speech provisions, Breyer retorted that what the state of California was saying, in effect, was, “Go ahead, speak, speak . . . just not on our nickel.” Apparently, that line of reasoning wasn’t compelling enough to persuade his fellow jurists, not even Justice Souter or Justice Stevens.
The original lawsuit was filed in 2002 by the U.S. Chamber of Commerce. The Chamber won a decision in federal court and, later, had it upheld by a three-judge panel of the 9th Circuit. But in 2006, the full 9th Circuit Court of Appeals overturned the panel’s decision, ruling that allowing businesses to use taxpayer to combat unions violating the “neutrality” of labor law. With the blessings of the Bush administration, the Chamber of Commerce took the matter to the Supreme Court.
The implications of this decision are enormous and, frankly, ominous. No one has ever tried to say that management didn’t have the constitutional right to attempt to make its case against having its employees join a labor union, so long as that case was presented legally, without intimidation, deception or coercion. The only thing labor ever wanted was a fair shot at reaching the workers directly, on a level playing field.
But this Supreme Court decision is a whole other deal. By allowing management to use taxpayer-supplied government money in its anti-union campaign, it turns democracy on its head. It becomes a case of the People’s money being used to fight the People.
How is this arrangement to be regarded in any way as “neutral”? And how can anyone say with a straight face that this constitutes a level playing field? In truth, it’s one more example of the Court’s deep-seated hostility to labor.
DAVID MACARAY, a Los Angeles playwright and writer, was a former labor union rep. He can be reached at firstname.lastname@example.org