Today’s News & Commentary — June 25, 2019


Published June 25th, 2019 - 06.25.199


Yesterday the Supreme Court declined to hear a challenge to a Los Angeles regulation that requires airline service providers at Los Angeles International Airport to enter into “labor peace agreements” with any employee organization that requests one. Petitioners had argued that the Ninth Circuit decision upholding the regulation had radically expanded the “market participant” exception to federal labor law preemption doctrine. Under the exception, state actions are not preempted by the National Labor Relations Act if the state is acting as a proprietor rather than a regulator. Petitioners claimed that exception should only apply when a state or local government directly procures goods and services from the company subject to the law’s requirements—a contention that the Ninth Circuit rejected.

The Supreme Court had initially held off denying or granting the cert petition, instead calling for the Solicitor General to weigh in on behalf of the United States. Despite expressing a belief that the Ninth Circuit had applied an incomplete version of the “market participant” test—and expressing doubts over whether the Los Angeles law would indeed satisfy a more exacting version of the test—the Solicitor General ultimately concluded that the instant case did not provide an appropriate opportunity for the Supreme Court to clarify the exact contours of the test, given that the Ninth Circuit was correct in rejecting petitioner’s “procuring-goods-and-services” limitation.

Meanwhile, the Second Circuit reversed portions of a National Labor Relations Board order which had found that an employer committed an unfair labor practice under Section 8(a)(1) of the NLRA when he asked an employee about union organizing efforts. The “interrogation” had consisted of a single question: “What’s going on with this union stuff?” The Board, applying a “totality of circumstances” test, found that the employer’s question, though not threatening on its face, occurred sufficiently close in time to other unfair labor practices to make it more than a mere “offhand and somewhat innocuous comment.” The Second Circuit held that this conclusion was not supported by the record as a whole, emphasizing that the employee was already an open union supporter, and that the question was phrased generally with no implied threat of disciplinary action. The unanimous decision might be little comfort for the employer, however: the panel affirmed other portions of the Board’s order, including findings that the employer had unlawfully raised wages in an attempt to discourage unionization.

Yesterday a coalition of unions and environmental groups released a plan to tackle climate change while rebuilding American unions and physical infrastructure. The platform—entitled Solidarity for Climate Action—aims for net zero greenhouse gas emissions by 2050, while emphasizing the need to create high-quality, well-paying jobs, especially for those communities that have seen good-paying, union jobs dwindle. The coalition touted the platform as “the first such comprehensive plan to address climate change put forward by America’s largest unions.” The coalition includes some of the largest labor unions in the United States, such as United Steelworkers and the Service Employees International Union, alongside environmental groups like the Sierra Club and the National Wildlife Federation.

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