Could Connecticut ban employers from forcing workers to attend meetings about unions, or would federal labor law block the state from doing that?

Plain-English summary

In April 2018, Senate Republican leader Len Fasano asked AG George Jepsen whether House Bill 5473, the so-called "captive audience" bill, could survive a federal court challenge. The bill used broad language covering meetings about political or religious matters, and defined "political matters" to include the decision to join or support a labor organization. The opinion specifically addressed the provision concerning meetings about joining or supporting a labor organization.

Jepsen's answer was that a court would probably hold that provision preempted by federal labor law. The reasoning ran through two complementary preemption doctrines built up by the Supreme Court since the 1950s: Garmon preemption (which keeps states out of activity the National Labor Relations Act protects, prohibits, or arguably protects or prohibits) and Machinists preemption (which keeps states from regulating conduct Congress meant to leave unregulated). Section 8(c) of the NLRA, added by the Taft-Hartley Act in 1947, expressly says that noncoercive employer speech about unionization cannot itself be an unfair labor practice. The Seventh Circuit had already held in Metropolitan Milwaukee Ass'n of Commerce v. Milwaukee County that federal labor law allows employers to require employees to attend meetings on company time about union organizing, and the AG knew of no contrary appellate decision. He noted that former AG Blumenthal had testified in support of similar legislation in 2007, but that view was given before Chamber of Commerce v. Brown (2008) and rested on a presumption of constitutionality rather than a doctrinal forecast.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What is a captive-audience meeting?
A: A meeting an employer requires employees to attend, on the clock, to hear the employer's views on a matter such as union organizing. Critics call them captive audiences because workers cannot leave without risking discipline; employers call them lawful workplace communication.

Q: What is NLRA preemption and why does it matter for state laws? A: The National Labor Relations Act covers most private-sector union activity. The Supreme Court has held that Congress, by passing the NLRA, took two layers of authority away from states: regulation of conduct the NLRA protects or prohibits (the Garmon doctrine), and regulation of conduct Congress wanted left to the "free play of economic forces" (the Machinists doctrine). Either layer can defeat a state law that touches union-organizing speech.

Q: What does NLRA section 8(c) actually say?
A: It says that the expressing of any views, argument, or opinion, in any form, cannot be evidence of an unfair labor practice as long as the expression contains no threat of reprisal or force or promise of benefit. The Supreme Court treats it as both a free-speech provision and a deliberate congressional choice to keep state and federal regulators out of noncoercive workplace speech about unions.

Q: Why was Chamber of Commerce v. Brown (2008) the pivotal case? A: California had tried to bar state contractors from using state funds to promote or deter unionization. The Supreme Court held that Machinists preemption blocked the law because Congress meant employer speech about union organizing to sit in a "zone protected and reserved for market freedom." That logic transfers cleanly to a state ban on the meetings where such speech happens.

Q: Did the AG say the bill was unconstitutional? A: He said a court would likely hold it preempted. Preemption is a Supremacy Clause question, not strictly a constitutional-rights question, though section 8(c) is rooted in the First Amendment. Either way the practical effect is the same: a federal court would enjoin enforcement.

Q: Could states still regulate the workplace at all? A: Yes. The AG cited Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724 (1985), for the proposition that states keep broad police power over workplace safety, minimum wage, and similar areas. The line is at speech and conduct that the NLRA itself addresses.

Background and statutory framework

The NLRA, as amended by the Taft-Hartley Act in 1947, is the federal framework for most private-sector labor relations. Its enforcement runs through the National Labor Relations Board. Two threads of Supreme Court precedent govern when a state law that touches workplace union activity gets pushed aside.

Garmon preemption (from San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959)) keeps states out of areas the Board interprets and enforces, even where the state's regulation looks like a traditional state interest. Machinists preemption (from Lodge 76, 427 U.S. 132 (1976)) goes further: states cannot regulate conduct Congress intentionally left to economic forces. Chamber of Commerce v. Brown, 554 U.S. 60 (2008), tied both threads to employer organizing speech specifically. Jepsen cited the Seventh Circuit's Metropolitan Milwaukee decision and the absence of any contrary appellate authority.

The opinion is also a useful illustration of how AG offices read prior testimony. AG Blumenthal had supported similar legislation in 2007, but Jepsen treated that earlier position as superseded both by intervening Supreme Court doctrine (Brown) and by the different question being asked in 2018 (predicted court outcome rather than litigating posture).

Citations and references

Statutes:

• House Bill 5473, An Act Concerning Captive Audience Meetings
• National Labor Relations Act, particularly § 8(c)
• Taft-Hartley Act of 1947

Preemption framework cases:

• San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959)
• Lodge 76, Int'l Ass'n of Machinists v. Wisconsin Employment Relations Comm'n, 427 U.S. 132 (1976)
• Chamber of Commerce v. Brown, 554 U.S. 60 (2008)
• Wisconsin Dept. of Industry v. Gould Inc., 475 U.S. 282 (1986)
• Metropolitan Milwaukee Ass'n of Commerce v. Milwaukee County, 431 F.3d 277 (7th Cir. 2005)

Section 8(c) cases:

• NLRB v. Gissel Packing Co., 395 U.S. 575 (1969)
• Linn v. United Plant Guard Workers, 383 U.S. 53 (1966)
• Healthcare Ass'n of New York State, Inc. v. Pataki, 471 F.3d 87 (2d Cir. 2006)

Source

• Landing page: https://portal.ct.gov/AG/Opinions
• Original PDF: https://portal.ct.gov/-/media/ag/opinions/2018/2018-02_captive_audience.pdf?rev=01fc6ce5c91f49bc93c226699e7f41bb

Original opinion text

55 Elm Street
P.O. Box 120
Hartford, CT 06141-01 20

GEORGE JEPSEN
ATTORNEY GENE RAL

Office of the Attorney General

(860) 808-5319

State of Connecticut
April 26, 2018

The Honorable Leonard A. Fasano
Senate Republican President Pro Tempore
State of Connecticut
Senate
Legislative Office Building, Suite 3400
300 Capitol Avenue
Hartford, CT 06106-15 91
Dear Senator Fasano:
You have asked for a formal opinion on whether House Bill 5473, An Act Concerning Captive Audience Meetings (HB 5473), is preempted by federal law. Specifically, you ask whether the provisions of HB 54 73 that would prohibit employers from requiring employees to attend employer-sponsored meetings if the primary purpose of the meeting is to communicate the employer's opinion concerning the decision to join or support a labor organization are preempted by the National Labor Relations Act (NLRA). We conclude that a court, if faced with the issue, would likely hold that such a provision is preempted. Background

HB 54 73 provides that, with certain enumerated exceptions not relevant to this discussion, no employer, or agent, representative or designee of such employer shall require an employee to attend an employer-sponsored meeting with the employer or its agent, representative or designee, the primary purpose of which is to communicate the employer's opinion concerning political or religious matters, except that an employer or its agent, representative or designee may communicate to an employee any information concerning political or religious matters that the employer is required by law to communicate, but only to the extent of such legal requirement.

Hon. Leonard A. Fasano
Page 2

HB 5473, § (l)(b) (emphasis added). "Political matters" are defined as "matters relating to: Elections for political office, political parties, legislation, regulation and the decision to join or support any political party or political, civic, community, fraternal or labor organization." Id., § (l)(a)(3) (emphasis added). "Employer" is defined as "a person engaged in a business who has more than one employee, including the state and any political subdivision of the state." Id.,
§ (l)(a)(l).
HB 54 73 further prohibits an employer from taking adverse employment actions because an employee has reported a violation of the law, id., § (1 )( c ), and provides a cause of action for an employee who has been discharged, disciplined or penalized in violation of the law, id.,§ (l)(d).

Discussion
The U.S. Supreme Court has long held that Congress, through the enactment of the NLRA, has preempted state law in two ways. First, "Garmon preemption" precludes "state interference with the National Labor Relations Board's interpretation and active enforcement of the integrated scheme of regulation established by the NLRA." Golden State Transit Corp. v. Los Angeles, 475 U.S. 608, 613 (1986) (quotation marks omitted); see San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959). Garmon preemption prohibits states from regulating activity that "the NLRA protects, prohibits, or arguably protects or prohibits." Wisconsin Dept. of Industry v. Gould Inc., 475 U.S. 282, 286 (1986). Second, "Machinists preemption" precludes states from regulating conduct that Congress intended to remain unregulated and left to "the free play of economic forces." Lodge 76, Int'! Ass'n of Machinists v. Wisconsin Employment Relations Comm 'n, 427 U.S. 132, 140 (1976) (quotation marks omitted); accord Chamber of Commerce v. Brown, 554 U.S. 60, 65 (2008). HB 5473 implicates both the Garmon and Machinists preemption doctrines. Under existing case law, HB 5473's prohibition on mandatory meetings for communicating an employer's opinion on the decision to join or support a labor organization would constitute the regulation of an activity that the NLRA protects or at least arguably protects. In the early administration of the NLRA, the National Labor Relations Board (Board) took the position that employers must remain neutral in union organizing campaigns so as not to interfere with employees' right to organize. See Brown, 554 U.S. at 66-67 (citing NLRB v. Virginia Elec. & Power Co., 314 U.S. 469, 477 (1941)). As a response to what Congress perceived as the Board's overly restrictive regulation of employer speech, the Taft-Hartley Act amended the NLRA in 1947 to make clear, among

Hon. Leonard A. Fasano
Page 3

other things, that noncoercive employer speech about unionization could not be a basis for an unfair labor practice. Id. at 67. Section 8(c) of the NLRA provides: The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter [of the NLRA], if such expression contains no threat of reprisal or force or promise of benefit. 28 U.S.C. § 8(c). Following the enactment of§ 8(c), the Board acknowledged that Congress intended both employers and unions to be free to influence employees through noncoercive speech on the issue of organizing. See, e.g., Livingston Shirt Corp., 107 NLRB 400, 406-07 (1953) (employer may make noncoercive speech to employees on its premises during work hours without offering union similar oppo11unity). The Supreme Court has stated that § 8(c) both "implements the First Amendment," NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969), and reveals the "congressional intent to encourage free debate on issues dividing labor and management." Linn v. United Plant Guard Workers, 383 U.S. 53, 62 (1966). Moreover, it has characterized § 8( c) as "expressly preclud[ing] regulation of speech about unionization 'so long as the communications do not contain a threat of reprisal or force or promise of benefit."' Brown, 554 U.S. at 68 (quoting Gissel Packing, 395 U.S. at 618). As the Second Circuit has observed, § 8(c) "not only protects constitutional speech rights, but also serves a labor law function of allowing employers to present an alternative view and information that a union would not present." Healthcare Ass'n of New York State, Inc. v. Pataki, 471 F.3d 87, 98 (2d Cir. 2006). At least one federal court of appeals has concluded that "[f]ederal labor law allows employers to require their employees to attend meetings, on the employer's premises and during working time, in which the employer expresses his opposition to unionization." Metropolitan Milwaukee Ass'n of Commerce v. Milwaukee County, 431 F.3d 277, 280 (7th Cir. 2005). We are not aware of, nor have we been presented with, any cases holding otherwise. 1
•
1

Two lawsuits were initiated in federal court challenging legislation similar to HB 5473, but in neither did the comi reach the merits of the NLRA preemption claims. See Associated Oregon Indus. v. Avakian, No. 3:09cvl494 (D. Or. May 6, 2010) (dismissed on standing and ripeness

Hon. Leonard A. Fasano
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Given the Supreme Court's characterization of Congress's "policy judgment, which suffuses the NLRA as a whole, as 'favoring uninhibited, robust, and wide-open debate in labor disputes,"' Brown, 554 U.S. at 68 (quoting Old Dominion Branch No. 496 Nat. Ass'n of Letter Carriers AFL-CIO v. Austin, 418 U.S. 264, 272-73 (1974)), the argument in favor of Garmon preemption is a strong one. In the absence of case law supporting the contrary view - that the NLRA does not protect or arguably protect an employer's right to require employee attendance at a meeting about union organizing - it is likely that a court would conclude that HB 5473 is preempted under Garmon. Similarly, we conclude that HB 5473's prohibition would likely be preempted under Machinists. The Supreme Court's decision in Chamber of Commerce v. Brown, 554 U.S. 60 (2008), is instructive. In that case, the Court held as preempted under Machinists a California statute that prohibited employers who received state funds from using those funds to promote or deter union organizing. It concluded that California was attempting to regulate an activity employer speech about union organizing - that Congress had intended to leave "within 'a zone protected and reserved for market freedom."' Id. at 66 (quoting Building & Constr. Trades Council v. Associated Builders & Contractors., 507 U.S. 218, 227 (1993)). As discussed above, the Supreme Court has characterized Congress's intent as protecting from regulation an employer's communications about union organizing. Id. at 68. HB 5473's attempt to prohibit mandatory meetings for such communications appears to fall within the area Congress intended to be free of regulation, and therefore a court would likely find it preempted. 2

grounds); Metropolitan Milwaukee Ass'n of Commerce v. Doyle, No. 2:10cv760 (E.D. Wis. Nov. 11, 20 I 0) (stipulated judgment).
~ We acknowledge that former Attorney General Richard Blumenthal testified and offered a letter in support of prior similar legislation in 2007. See Letter to Hon. Edith Prague and Hon. Kevin Ryan dated March 14, 2007. In doing so, however, Attorney General Blumenthal principally relied on the presumption of constitutionality of statutes in concluding he would defend the iegislation against a federal preemption challenge, and did not, as we do here, provide an assessment of what a court would likely decide under the Garmon and Machinist doctrines. Moreover, the views expressed did not have the benefit of the guidance from the Supreme Court's decision in Brown, which came a year later.

Hon. Leonard A. Fasano
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The scope of preemption under the NLRA leaves intact broad state law authority over many issues that touch upon the employer-employee relationship. See Metropolitan Life Ins. Co. v. Massachusetts , 471 U.S. 724, 757 (1985). For example, states retain their police powers to legislate to protect worker safety or to provide a minimum wage. Id. at 756. But the exercise of traditional police powers is preempted when it traverses into those areas Congress has determined states should not be permitted to regulate. We conclude that HB 5347's prohibition, if enacted, would do just that, and a court would likely determine that it is preempted.

I trust this is responsive to your question.

GEORG JEPSEN
ATTORNEY GENERAL