Kenneth Dolin Published in The National Law Journal
"Chamber v. Brown"

Kenneth Dolin’s article, "Chamber v. Brown," was published in the October 6, 2008 issue of The National Law Journal. In his article, he discusses the U.S. Supreme Court decision in Chamber of Commerce v. Brown, 128 S. Ct. 2408 (2008). The decision arose from the court's interpretation of a California law that prohibited employers receiving state grants of more than $10,000 in state program funds annually from using the funds 'to assist, promote, or deter union organizing.'" The court held that this California law was pre-empted by the National Labor Relations Act (NLRA) because it sought to regulate within "a zone protected and reserved for market freedom."

Kenneth provides an in-depth analysis of the decision in his article and he concludes by outlining the practical implications of the decision. He notes that "The Brown decision supports an employer's federally protected right under § 8(c) to communicate with its employees about the negative consequences of unionization, and it supports employees' § 7 right to refrain from union activity, which implies an underlying right to receive information opposing unionization. Employer groups welcomed this decision because they believed it was unfair to use taxpayer funds to tie the hands of employers in union organizing drives. Almost half of the states have similar laws or have proposed to enact such laws to restrict employer speech about unionization, but such laws will undoubtedly be strictly scrutinized in light of Brown. Labor unions contend that the decision narrowly turns on its facts and that different labor neutrality laws — particularly those without the substantial chilling effect on employers and without the pro-union exceptions of AB 1889 — might survive a pre-emption analysis."