California Chamber of Commerce v. Bonta, 25-6874 (9th Circuit)
A federal appeals court upheld an order blocking California from enforcing a law that bars employers from disciplining workers who skip meetings where the employer discusses its views on political or religious topics.
The law, SB 399, prohibits employers from subjecting or threatening to subject an employee to discharge, discipline, or other adverse action because the employee declines to attend an employer-sponsored meeting, or declines to receive communications, intended to convey the employer's opinion on political or religious matters. Before the law took effect, the California Chamber of Commerce, the California Restaurant Association, and the Western Growers Association sued state officials, arguing the law violated the First Amendment and was preempted by the NLRA. A district court agreed and blocked enforcement, and California appealed.
The court first addressed whether the business groups had standing to sue before the law was ever enforced against them. It found that the Western Growers Association had standing because at least some of its members hold "all-hands" meetings to discuss political matters and intend to continue doing so, those meetings arguably violate SB 399 since employees could reasonably infer they must attend, and there was a credible threat of enforcement given that the law lets any employee who believes they were wronged sue for damages. Because one group had standing, the court did not need to decide whether the other two did as well.
Turning to the merits, the court rejected California's argument that SB 399 only regulates conduct, not speech. The court explained that the law only restricts an employer's ability to discipline a worker for skipping a meeting when that meeting's purpose is to communicate the employer's opinion on political or religious matters, so the restriction cannot be separated from the content of the speech involved. Because whether the law is violated depends on examining what was said at the meeting, the First Amendment applies.
The court then held that SB 399 is both content-based and speaker-based, since it only applies to meetings covering political or religious topics and is triggered specifically by the employer expressing its own opinion. That means the law is subject to strict scrutiny, the most demanding level of judicial review.
Applying strict scrutiny, the court rejected California's argument that the law is justified because employees are a "captive audience" who should be shielded from unwanted speech at work. The court explained that courts have only used the captive-audience concept to justify content-neutral restrictions, such as time, place, and manner rules, or to let the government limit speech when acting as a property owner, such as regulating ads on public buses. No court has used that theory to justify a content-based restriction on private speech in a private workplace. Because California failed to show the law serves a compelling interest through the least restrictive means, the business groups were likely to succeed on their First Amendment claim, and since California did not dispute that the other preliminary injunction factors were satisfied, the lower court's order blocking the law was upheld. The court did not reach the separate argument that the law is preempted by the NLRA.
Significant Cases Cited
Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014): Sets out the test for pre-enforcement standing, requiring an intent to engage in conduct arguably proscribed by a statute and a credible threat of prosecution.
Reed v. Town of Gilbert, Arizona, 576 U.S. 155 (2015): Holds that laws applying to speech based on the topic discussed are content-based and subject to strict scrutiny.
Honeyfund.com, Inc. v. Governor, 94 F.4th 1272 (11th Cir. 2024): Held that a Florida law restricting mandatory workplace meetings on certain topics regulated speech, not just conduct, because the violation depended on the meeting's content.
Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975): Held that selective, content-based speech restrictions can be justified only when they protect against an essentially intolerable invasion of substantial privacy interests.
National Institute of Family and Life Advocates v. Becerra, 585 U.S. 755 (2018): Held that laws distinguishing among speakers are viewed with skepticism because they risk favoring speech the government agrees with.
United Cleanup Oak Ridge LLC, JD-71-26, 10-CA-309298 (ALJ Decision)
An administrative law judge found that United Cleanup Oak Ridge, LLC violated the NLRA when it disciplined, transferred, and ultimately fired two landfill employees after they raised workplace concerns with management and discussed possible union-related actions with coworkers.
The case centered on Patricia Sexton and Wendy Colyer Bales, who worked at the company's Oak Ridge Reservation landfill. In October 2022, Sexton organized a meeting between employees and the company's CEO where workers raised concerns about safety reporting procedures, promotions, and union representation. Two days later, the company issued Sexton a "last chance" written warning claiming she had refused to report safety hazards. The judge found this reason false: Sexton had only said she would stop filling out voluntary safety cards, not that she would ignore hazards. The judge also found the discipline was issued without investigating her actual statements and was harsher than discipline given to other employees for genuine safety violations, supporting a finding of unlawful motive under both the Wright Line and Burnup & Sims standards.
The company later transferred Sexton from her grounds equipment operator job to a laborer position at a different, more hazardous facility. The judge rejected the company's shifting explanations for the transfer as pretextual, noting there was no operational need for the move and that company records showed it was retaliatory, tied to Sexton's grievances and unfair labor practice charges.
Tensions escalated in April 2023 after the company and a union negotiated a memorandum of understanding changing job classifications and pay. Sexton and Colyer discussed the agreement and the possibility of a strike with coworkers, in some cases joking about it. Colyer separately suggested employees refuse mowing assignments to pressure management into reversing Sexton's transfer. Both women were placed on administrative leave, investigated, and terminated, with management citing harassment of coworkers and violation of the contract's no-strike clause.
The judge found these discussions were protected activity under the NLRA, that no actual work stoppage occurred, and that the harassment allegations were not supported by the evidence gathered during the company's own investigation. Because Sexton's termination relied partly on the earlier unlawful warning, it was independently unlawful. The judge ordered reinstatement, backpay, and other make-whole relief for both women, while dismissing one narrower allegation involving Colyer.
Significant Cases Cited
Wright Line, 251 NLRB 1083 (1980): Established the burden-shifting framework for analyzing discrimination claims under the NLRA that turn on employer motivation.
NLRB v. Burnup & Sims, Inc., 379 U.S. 21 (1964): Held that discipline for alleged misconduct during protected activity is unlawful if the employee was not actually guilty of that misconduct.
General Motors LLC, 369 NLRB No. 127 (2020): Set the standard for evaluating employee conduct during protected activities while preserving Burnup & Sims as valid law.
Frazier Industrial Co., 328 NLRB 717 (1999): Held that repeated or persistent employee statements do not lose the Act's protection unless made in an offensive or threatening manner.
Consolidated Diesel Co., 332 NLRB 1019 (2000): Held that legitimate concerns about harassment do not justify discipline based on others' subjective reactions to protected activity.
GFL Plant Services, L.P., 16-RD-397185 (Regional Election Decision)
A regional director has rejected a union's attempt to block a decertification election, finding that the collective bargaining agreement between GFL Plant Services, L.P. and the International Brotherhood of Teamsters, Local 988, lacked the clarity needed to serve as a contract bar.
The dispute centered on when the parties' agreement actually took effect. The contract's cover page stated it would run "Upon Ratification Through March 31, 2031," but nowhere in the document was the actual ratification date written down. The signature page was dated April 13, 2026, but witnesses testified that the agreement had really been ratified earlier, on March 22, 2026, and that related wage increases began April 1, 2026. The union argued that this web of dates and witness testimony was enough to establish a binding contract that should block the decertification petition from moving forward.
The regional director disagreed, applying the Board's longstanding contract-bar doctrine, which requires that both the effective date and expiration date of a contract be clear from the face of the document itself, without needing outside testimony or evidence. Because the agreement here only said it would take effect "upon ratification" without stating when that ratification occurred, an employee or outside party reading the contract alone would have no way to calculate when the window for filing a decertification petition opens or closes. The decision drew heavily on two recent Board rulings, SSM Health Saint Louis University Hospital and Republic National Distributing Company, both of which rejected contract-bar claims where effective dates were missing or only added after a petition was filed. The regional director concluded that the facts here were even weaker than in the Republic National Distributing case, since that contract at least was eventually amended with a backdated effective date, while this agreement never specified one at all.
As a result, the decertification petition was found not to be barred, and a secret ballot election was ordered among the affected employees to decide whether they wish to continue being represented by the union.
Significant Cases Cited
Appalachian Shale Products Co., 121 NLRB 1160 (1958): Established that a contract of definite duration can bar an election petition for up to three years if it is a signed written agreement with substantial terms.
South Mountain Healthcare & Rehabilitation Center, 344 NLRB 375 (2005): Held that both the effective and expiration dates must be apparent from the face of a contract, without resort to parol evidence, for it to serve as a bar.
Cooper Tire & Rubber Co., 181 NLRB 509 (1970): Held that contract terms must be clear from the document's face so employees and rival unions can determine when to file a representation petition.
Roosevelt Memorial Park, Inc., 187 NLRB 517 (1970): Held that the party asserting a contract bar bears the burden of proving the facts establishing it.
SSM Health Saint Louis University Hospital, 375 NLRB No. 26 (2026): Found no contract bar where the agreement contained unfilled placeholders for the effective and expiration dates at the time of the petition.
Lineage, Inc., 13-RM-352486 (Unpublished Board Decision)
The Board denied the Employer's request for review of a Regional Director's decision finding that inventory control technicians (ICTs) share a community of interest with a petitioned-for warehouse unit, allowing them to be included together for purposes of a representation election.
The Board first clarified a legal point: when a dispute centers on whether a particular classification of employees shares a community of interest with the rest of a petitioned-for unit, no party bears a special burden of proof. The Board disavowed the Regional Director's reliance on Sweetener Supply Corp. for placing that burden on the Employer. Even so, the Board agreed with the Regional Director's bottom-line conclusion that the ICTs belonged in the unit.
On the merits, the Board found no basis to overturn the hearing officer's credibility determinations. It also found that even accepting the Employer's own evidence, meaning that ICTs spend 65 percent of their time in a control room and only 35 percent on the warehouse floor, the contact between ICTs and other employees still supported a shared community of interest. The Board reached a similar conclusion on interchange: even if ICTs covered other job classifications only monthly or quarterly rather than weekly, the fact that every ICT had previously held one of the unit's other job classifications established permanent interchange, which supports unit inclusion under Walt Disney Parks and Resorts, U.S., Inc.
The Board parted ways with the Regional Director on one point, rejecting the reasoning that the ICTs' quality control duties made their job functions similar to other unit employees. It explained that precedent allowing inclusion of quality control employees, such as Keller Crescent Co., applies to production and maintenance units, which this was not. The Board also noted the ICTs were only modestly integrated with the shipping and receiving process, since they mainly handle customer complaints after products have already shipped. Weighing all the community-of-interest factors together, the Board still upheld the finding that the petitioned-for unit, including the ICTs, was appropriate.
Member Mayer dissented in part, saying he would have granted review and excluded the ICTs. He viewed their focus on resolving customer complaints, including investigations that could lead to discipline or loss of incentive pay for other workers, as distinct from the order-fulfillment work of the rest of the unit, and he found they were not functionally integrated with the other employees' tasks.
Significant Cases Cited
Sweetener Supply Corp., 349 NLRB 1122 (2007): The Board disavowed this case's suggestion that a party bears the burden of proving a classification does or does not share a community of interest with a petitioned-for unit.
Walt Disney Parks and Resorts, U.S., Inc., 373 NLRB No. 99 (2024): Permanent interchange between employee groups can support finding a community of interest for unit placement purposes.
Keller Crescent Co., 326 NLRB 1158 (1998): In production and maintenance units, quality control or quality assurance employees may be included where they work in the same areas, have regular contact, and are functionally integrated with production.
MV Transportation, Inc., 373 NLRB No. 8 (2023): Functional integration exists only where employees must work together and depend on one another to accomplish their tasks.
Sperry Rand Corp., 190 NLRB 488 (1971): Cited in support of using interchange among employee groups as a factor in community-of-interest analysis.