Doug Darch Published in Employment Law 360 "The End of Neutrality Agreements?"

Doug Darch’s article, “The End of Neutrality Agreements?,” was published in the August 4, 2008 issue of Employment Law 360.  In his article, Doug discusses the California state law, preempted by the National Labor Relations Act (“NLRA”), which prohibited employers who did business with the state of California from using the profits from their state contracts to campaign against unions. Doug notes, “An unintended result of this decision is that it might make neutrality agreements illegal and unenforceable.”  Doug identifies several avenues for employers to consider.  He suggests, “Those employers facing demands from unions and/or corporate campaigns may decide to file charges with the NLRB against the union claiming a violation of Section 8(b)(1) of the NLRA.”  As an alternative, he explains that employers could also file state law-based commercial tort claims against the union, e.g. extortion, seeking a monetary recovery from the union.  He further explains, “Employers who have already signed a neutrality agreement simply could refuse to abide by the clause to force a federal court suit under Section 301 of the Labor Management Relations Act.”  Alternatively, Doug notes, employers could file a court suit seeking a declaratory judgment that the neutrality agreement was void and unenforceable.  “A state law tort claim could be appended to the declaratory judgment action if the corporate campaign, although now over, extended into the statute of limitations period,” he concludes.