Tuesday, November 20

Supreme Court Grants Cert. on Awesome California Labor Case - And Also Some Gun Thing.

I know, I know. Everyone's talking about D.C. v. Heller, the Second Amendment bombshell of a cert. grant. Believe me, the D.C. Circuit version, Parker, was my life for 3 months of moot courtness this fall. I'm interested.

But if you want to talk guns, you're in the wrong place - unless it's a postal service article or something - and Heller was not the only cert petition granted today.

The Supremes agreed to hear a challenge of a California labor statute that prohibits employer communication during a union campaign. The case, Chamber of Commerce v. Brown, could give the Court a chance to define the extent an employer's noncoercive speech is protected by the 1st Amendment or Section 8 of the NLRA. Except, of course, that it's been long-settled that both of those things are true, so, that's dangerous.

From the Petition for Cert.:

[The statute] forbids employers that receive either a state "grant" or over $10,000 from a "state program" from using those funds "to assist, promote, or deter union organizing," which is defined as "any attempt by an employer to influence the decision of its employees in this state or those of its subcontractors regarding either ...[w]hether to support or oppose a labor organization that represents or seeks to represent those employees ... [or] [w]hether to become a member of any labor organization," This proscription applies to "any expense, including legal and consulting fees and salaries of supervisors and employees, incurred for research for, or preparation, planning, or coordination of, or carrying out, an activity to assist, promote, or deter union organizing."

The 9th Circuit held en banc that the state law wasn't preempted by the NLRA because it only tangentially touches on noncoercive speech. And then it got good:

[The 9th Circuit held that the statute was not preempted] because noncoercive employer speech is neither actually nor arguably protected by the NLRA. It held that section 8(c) of the NLRA does not grant employers speech rights but "simply prohibits their noncoercive speech from being used as evidence of an unfair labor practice."

Wow. That could be a thing.

We're thinking that SCOTUS is going to overrule the 9th Circuit here. Why? Two reasons: 1) the Roberts Court is clearly pro-business, and this case, brought by the California Chamber of Commerce, is as "business" as they come, and 2) the Supreme Court always overrules the 9th Circuit. Seriously, their like the Buffalo Bills - it doesn't matter how good they are, they're never going to win.