The United States Supreme Court this summer handed down a decision that spells the end for one of the most contentious and aggressively anti-employer bills Olympia has seen in years — the so-called “Worker Privacy Act” or union neutrality bill.

Although cloaked in misdirection about protecting workers from unwelcome views on religion or politics in the workplace, the union neutrality bill aims to prohibit effective employer communications with employees on matters related to labor unions and organizing campaigns.

It was tabled in the 2008 legislative session, partly at the request of Gov. Gregoire, in order to await the resolution of Chamber of Commerce v. Brown, the U.S. Supreme Court case determining the validity of a very similar measure enacted in California. On June 19, the Supreme Court struck down California’s law in a 7-2 decision that boldly upheld the right of employers and employees to engage in open, vigorous debate about labor organizing matters.

California’s law attempted to prohibit employers who do business with the state from using any funds or grants derived from that business to “assist, promote, or deter union organizing.” Sounds even-handed. Just as Washington’s proposal would prohibit “required” workplace communications about “political or religious matters,” explicitly defined to include labor unions.

Gag effect on employers
But in California, like Washington, these labor-backed measures have had less to do with fairness and more to do with deterring employers from expressing viewpoints contrary to unions. And the Washington proposal would go further than California, applying to all employers regardless of whether they do business with the state. The end goal, in effect, is to tilt the playing field in favor of the union by regulating what the employer is allowed to say about it during an organizing or bargaining campaign.

The U.S. Supreme Court saw through all of this and held that the federal Wagner Act — on the books since 1935 and more commonly known as the National Labor Relations Act — pre-empts any effort by a state to regulate an employer’s speech about unionization, provided what the employer says is not coercive and makes no promises or threats.

Writing for the court, Justice John Paul Stevens stated that the NLRA forbids states from regulating conduct “that Congress intended to be unregulated because left to be controlled by the free play of economic forces.” Noting its view under prior case law that “Congress struck a balance of protection, prohibition, and laissez-faire in respect to union organization, collective bargaining, and labor disputes,” the court determined that California’s law attempted to regulate within “a zone protected and reserved for market freedom.”

The Court further elaborated on the right of employers to engage in “free debate on issues dividing labor and management,” that this First Amendment right is enshrined in the NLRA, and that it reflects a policy decision “favoring uninhibited, robust, and wide-open debate in labor disputes” involving “freewheeling use of the written and spoken word.” The constitution, buttressed by the NLRA, provides this freedom; states cannot by legislation or regulation take it away.

Unions scramble to salvage law
Labor unions attempting to salvage the Worker Privacy Act from the rocks of the Brown decision will argue that their bill doesn’t stop an employer from engaging in speech protected by the NLRA, it just limits the employer’s ability to “require” the employee to hear it, as in a staff meeting or possibly e-mail or other kinds of communication.

Of course, that logic yanks legislators and judges into the business of micromanaging staff meetings, employee mailboxes, and e-mail accounts to an unprecedented degree, making the employee the after-the-fact arbiter of what workplace communications or directives he or she will listen to or heed.

But even on that point the court was again clear: States are not free to regulate what Congress left unregulated in the NLRA. The NLRA “expressly precludes regulation of speech about unionization” so long as the communications do not threaten or promise anything to the employee. “When Congress has sought to put limits on advocacy for or against union organization, it has expressly set forth the mechanisms for doing so.”

Up to Congress
That means the proper place for an argument over a Worker Privacy Act is Congress, where the unions are already attempting — without success — to abolish the employee’s right to a secret-ballot union election through card-check legislation. The unions can take this bill to Congress too, if they’d like.

But in Washington state, after the Brown decision, it’s a dead letter.