Abstract

In his recent article entitled "Toward the Viability of State-Based Legislation to Address Workplace Captive Audience Meetings in the United States," Professor Secunda argues that state "Worker Freedom Act" legislation -legislation currently pending in numerous state legislatures that would prohibit an employer from holding captive audience meetings about unionization with its employees -should not be held preempted by the National Labor Relations Act. In this essay, I argue that state regulation of workplace captive audience meetings about unionization should be held preempted by the Act.In Part I of this essay, I argue that Garmon preemption, properly understood, extends to the Board's regulatory authority under Section 9, and that Professor Secunda misapplied the overarching policy driving Garmon preemption by limiting that doctrine's scope to Sections 7 and 8 only. In Part II, I argue that captive audience meetings are neither a peripheral concern of the NLRA nor deeply rooted in state law, and thus do not fall within the recognized exception to Garmon preemption. In Part III, I dispute Professor Secunda's assertion that state regulation of captive audience meetings should not be preempted because states may lawfully enact minimum employment standards. I argue that such state laws only escape preemption if they regulate conduct in a manner that is not inconsistent with the NLRA. In Part IV, I refute Professor Secunda's argument that state regulation of captive audience meetings should survive a preemption challenge on the basis that states may lawfully modify their respective property laws to remove an employer's state law right to exclude non-employees from its property. I argue that Professor Secunda's reliance on state property law is misplaced because the source of an employer's right to hold captive audience meetings is federal labor law, not state property law. Finally, in Part V, I conclude that state regulation of captive audience meetings should be held preempted under Garmon.