On September 7, 2011, following several years of litigation in the federal district court and the Second Circuit Court of Appeals, and a related case from California that was heard in the U.S. Supreme Court, the Hon. Neal P. McCurn, a Senior United States District Judge in Albany, New York, declared that New York Labor Law § 211-a, better known as a “union neutrality” provision, was pre-empted by the National Labor Relations Act (NLRA) and issued a permanent injunction against the law.
Our firm, O’Connell and Aronowitz, with a team headed by Jeffrey J. Sherrin, O&A Senior Partner, represented the Healthcare Association of New York State, the New York State Health Facilities Associations, the New York Association of Homes and Services for the Aging, the United Cerebral Palsy Associations of New York State, and NYSARC, Inc., in challenging the legality of New York Labor Law § 211-a, which prohibited the use of State funds to hire or train employees or to engage contractors to “encourage or discourage” union organizing. The law was a centerpiece of organized labor’s efforts to limit the ability of employers to fight union organizing campaigns.
This decision may be the final stop in an 8-year procedural journey, during which the law was initially struck down by Judge McCurn in 2005, after he determined that the NLRA indeed pre-empted the law. However, the Second Circuit reversed that decision in 2006 and remanded the case to the District Court for it to consider certain issues of fact, namely whether the State had interfered with protections offered by the NLRA in applying this law. Prior to the remand, however, the Ninth Circuit had overturned a substantially similar California “union neutrality” law, which was immediately appealed to the United States Supreme Court. Our firm, by Mr. Sherrin, filed an amicus curiae brief for its clients with the U.S. Supreme Court.
In 2008, the Supreme Court entered its decision, upholding our firm’s position, that the California law was preempted by the NLRA because the provisions “regulate within a zone protected and reserved for market freedom.” See Chamber of Commerce v. Brown, 554 U.S. 60, 66 (2008) (internal citations and quotations omitted).
On September 7th, Judge McCurn found that the provisions of New York Labor Law § 211-a were also preempted because they attempted to regulate within a zone that the NLRA intended to be left to market forces. Judge McCurn, guided by the Supreme Court’s decision, found that Congress intended, in enacting the NLRA, to leave noncoercive speech by employers unregulated, and that the provisions of the New York law improperly encroached on that free zone. The Supreme Court found that the California law’s “indirect regulation” of speech through the imposition of spending restrictions on state funds was preempted by the NLRA, and Judge McCurn determined that this applied to the analogous New York law. Judge McCurn then declared that § 211-a was preempted by the NLRA and entered judgment for the Plaintiffs.
New York State may still file an appeal with the Second Circuit Court of Appeals.