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Chamber of Commerce of the United States v. Lockyer
Citation: 463 F.3d 1076Docket: 03-55166, 03-55169
Court: Court of Appeals for the Ninth Circuit; September 20, 2006; Federal Appellate Court
Original Court Document: View Document
California law prohibits employers receiving state grant or program funds over $10,000 from using those funds to influence union organizing activities. The Ninth Circuit Court of Appeals addressed whether this state regulation conflicts with federal labor policy under the National Labor Relations Act (NLRA). The court concluded that the restrictions imposed by California do not undermine federal labor policy, are not preempted by the NLRA, and do not infringe upon First Amendment rights. The ruling was made in the context of an appeal involving multiple plaintiffs, including various chambers of commerce and healthcare associations, against the Attorney General of California and other state officials. The case was presided over by Judge Fisher, with dissent from Judge Beezer. On September 28, 2000, California enacted Assembly Bill No. 1889 (AB 1889), which establishes a state policy to avoid interference with employees' decisions regarding union representation. The statute prohibits employers from using state funds or facilities to influence employees' union affiliations. Specific sections under scrutiny, 16645.2 and 16645.7, restrict private employers receiving state grants from using those funds to assist, promote, or deter union organizing. This includes any actions aimed at influencing employee decisions about labor organizations. The statute also outlines that expenses related to such prohibited activities, including legal fees and supervisor salaries, are not allowable. However, it exempts activities related to grievance handling or collective bargaining. Employers must certify that state funds will not be used for union-related influencing and provide records to demonstrate compliance. If state and other funds are commingled, the statute assumes any related expenditures utilize state funds. Violations can lead to fines, penalties, and the requirement to return misused funds, with enforcement possible by the Attorney General or private taxpayers. In April 2002, the Chamber of Commerce filed a lawsuit challenging the statute on various grounds, including preemption by the National Labor Relations Act (NLRA). The AFL-CIO intervened, and subsequent motions for summary judgment were filed by both parties, with the district court granting partial summary judgment in favor of the Chamber of Commerce on September 16, 2002. The district court ruled that the National Labor Relations Act (NLRA) preempted California's sections 16645.2 and 16645.7, which regulate employer communication regarding union organizing, contrary to Congress's intent for free debate. In January 2003, the court issued an injunction preventing California and the AFL-CIO from enforcing these sections against NLRA-subject employers. Following appeals, a divided panel of the reviewing court initially affirmed but later withdrew its opinion for en banc reconsideration. Ultimately, the court reversed the district court's judgment on NLRA preemption and vacated the injunction. The standard of review for this case is de novo for summary judgment and preemption analysis. A facial challenge to a legislative act is particularly difficult, requiring proof that no valid circumstances exist for the act. Before addressing the preemption merits, the court examined whether California’s funding conditions constituted regulation. Under the NLRA, state actions must regulate labor relations to be preempted. The court determined California was acting as a regulator, not merely as a market participant, thereby dismissing the market participant exception. The court referenced two Supreme Court cases: *Wisconsin Department of Industry v. Gould Inc.*, where a Wisconsin statute aimed to limit procurement from NLRA violators was deemed a regulation enforcing the NLRA, and *Boston Harbor*, where the Massachusetts Water Resources Authority's project labor agreement was ruled a market participant action aimed at efficiently managing a specific project. The comparison established that California's sections 16645.2 and 16645.7 did not fit the market participant exception, reinforcing the preemption finding. The market participant exception has been applied variably across different legal contexts without a definitive rule. Notably, this exception did not apply to a California law allowing lower wages for state-approved apprenticeship program employees compared to those in non-approved programs. Conversely, it did apply when the City of Oakland canceled a newspaper subscription and halted advertising during a labor dispute, recognizing it as a market participant. Key insights indicate that if a state's spending power is used in a non-proprietary manner, the market participant exception may not apply, potentially leading to NLRA preemption. The Fifth Circuit's two-question framework is used to assess the market participant exception's applicability: 1. Does the action reflect the entity's interest in efficiently procuring goods/services, compared to typical private behavior? 2. Does the action's narrow scope indicate a focus on a specific proprietary issue rather than broader policy enforcement? The first question protects broad state policies from preemption if they are proprietary, while the second questions the expenditure's scope relating to general regulations. Sections 16645.2 and 16645.7 of California law are deemed regulatory, lacking the market participant exception, as they do not demonstrate an interest in efficient procurement. Instead, their purpose is to prevent the use of state resources to influence union organizing, applying broadly to all employers receiving significant state funds. These sections require extensive record-keeping and impose civil penalties for violations, reflecting a general neutrality on organizing rather than a specific procurement goal. This contrasts with the Alameda Newspapers case, where the city's actions were not categorized as regulatory subject to NLRA preemption. Sections 16645.2 and 16645.7 are deemed regulatory but are not preempted by the National Labor Relations Act (NLRA). Preemption analysis begins with the presumption that Congress did not intend to displace state law, focusing on congressional intent as the core of preemption issues. While the NLRA lacks an express preemption clause, two doctrines are established: Machinists preemption and Garmon preemption. The analysis concludes that neither applies to sections 16645.2 and 16645.7. Machinists preemption, a form of labor field preemption, applies when state regulation interferes with areas Congress intended to be free from regulation. It has been primarily applied in collective bargaining contexts, as exemplified by cases like Machinists and Golden State Transit Corp. v. City of Los Angeles, where state attempts to influence collective bargaining terms were deemed inconsistent with federal policy. The Supreme Court emphasized that Congress intended for collective bargaining parties to employ economic strategies without state interference. In contrast, Garmon preemption typically addresses organizing issues, not collective bargaining, suggesting a limited scope for Machinists preemption. The Chamber of Commerce acknowledged this distinction, indicating that interference with organizing should be analyzed under Garmon. Thus, the analysis reaffirms that the Machinists doctrine is primarily applicable to collective bargaining, supporting the conclusion that sections 16645.2 and 16645.7 do not fall under its purview. The ruling clarifies that AB 1889, which restricts the use of state grant and program funds to ensure neutrality in labor disputes, is not preempted by the Machinists doctrine. The court asserts that California's law does not interfere with free economic forces or employer self-help, as the state has not made neutrality or employment terms a condition for receiving funds. Employers retain the freedom to use their own funds for any purpose, including union-related advocacy, provided they do not use state funds for that purpose. The National Labor Relations Board (NLRB) argues that AB 1889 limits employer speech and conflicts with the intent of Congress regarding representation elections. However, the court disagrees, stating that the statute does not regulate employer speech but merely restricts the use of state funds, allowing employers to advocate using non-state funds. The ruling emphasizes that reasonable conditions can be attached to state funding and that local regulations impacting employer-employee-union relationships are permissible. The NLRB's assertion that Machinists preempts AB 1889 is deemed incorrect, as Machinists applies only to areas free from all regulation, which does not include organizing activities governed by extensive NLRB regulations. The National Labor Relations Board (NLRB) has established regulations to ensure fair election processes in labor relations, including prohibiting interviews with employees in their homes before elections and barring election speeches on company time within 24 hours of an election. The NLRB has broad discretion under Section 9 of the National Labor Relations Act (NLRA) to regulate employer and union conduct that could undermine the fairness of elections. The Supreme Court has affirmed that the NLRB can invalidate elections if material misrepresentations occur during representation campaigns, particularly if they affect voter choice and if the opportunity for rebuttal is denied. The use of derogatory labels like "scab" or "liar" can also lead to election invalidation if shown to be made with malice. Furthermore, the spending restrictions challenged by the Chamber of Commerce and NLRB mirror congressional prohibitions against using federal funds for activities that assist, promote, or deter union organizing. These restrictions reflect a congressional stance that union organizing should be largely unregulated. An area characterized by the free play of economic forces is defined as one free from all regulations, whether state or federal. Federal restrictions indicate that AB 1889 does not encroach on a regulation-free zone of labor relations, opposing the dissent's view that it frustrates the purpose of the National Labor Relations Act (NLRA). The federal government's imposition of similar restrictions suggests that Congress does not see such regulations as incompatible with labor policies. California's method of maintaining neutrality in labor disputes does not hinder an employer's use of funds for union organizing activities, which are not intended by Congress to be free from regulation. Consequently, AB 1889 is not preempted under the Machinists decision. The Supreme Court’s reasoning in Metropolitan Life supports this conclusion, demonstrating no incompatibility between federal labor policy and state legislation that imposes minimal requirements in labor agreements. Garmon preemption occurs when state regulation conflicts with federal labor law regarding activities that are protected or prohibited under the NLRA. If state regulations address activities clearly protected by Section 7 or constitute unfair labor practices under Section 8 of the NLRA, federal law will take precedence. However, the historical context of labor preemption does not justify an outright removal of state jurisdiction over traditionally regulated conduct without careful evaluation of the impacts on affected interests. Section 7 of the NLRA outlines protected employee conduct, while Section 8 delineates unfair labor practices. Both sections are relevant for Garmon preemption analysis; if a state regulation addresses activities protected by Section 7 or prohibited under Section 8, it will be preempted unless it meets an exception. Additionally, Section 8(c) provides a "free speech exemption," safeguarding employers from being penalized under the NLRA for exercising free speech rights, distinguishing noncoercive speech from punishable actions. Section 8(c) does not confer speech rights to employers, contrary to the dissent's assertion. It merely protects noncoercive employer speech from being considered evidence of unfair labor practices, as established in cases such as NLRB v. Gissel Packing Co. and UAW-Labor Employment Training Corp. Employers are allowed to express views on unionization without committing an unfair labor practice, as stated in 29 U.S.C. § 158(c). The dissent and the Chamber of Commerce argue that restrictions under AB 1889 infringe upon an implied right of employers to speak against unionization, but this view is rejected due to lack of supporting authority. The National Labor Relations Board (NLRB) does not claim that section 8(c) grants any speech rights, reinforcing that certain labor relation activities are neither protected nor prohibited by the NLRA and thus are not preempted under Garmon. The dissent's reasoning is flawed, as it misapplies the concept of preemption regarding regulatory schemes rather than addressing activities that are explicitly protected or prohibited. California's decision not to fund employer speech regarding unionization does not violate the National Labor Relations Act (NLRA) or infringe on employers' First Amendment rights. Employers are free to advocate for or against unionization using their own funds and are not required to be neutral to receive state funds. The Supreme Court's Garmon preemption doctrine, as refined in Sears, establishes that state jurisdiction is preempted if a claim overlaps with matters under the NLRB's jurisdiction. The dissent incorrectly argues that AB 1889 interferes with actually protected conduct, while the majority asserts that the analysis of whether the statute affects arguably protected or prohibited activities is a valid part of Garmon analysis. The primary jurisdiction test from Sears is applied, indicating that if a state claim is identical to one that could be brought before the NLRB, state jurisdiction is preempted. The analysis also includes considerations of federal supremacy to prevent misinterpretation of the NLRA. The pre-emption analysis involves determining if the conduct regulated by the State is protected or prohibited by the National Labor Relations Act (NLRA). Generally, if state law addresses conduct that is arguably protected or prohibited by the NLRA, it is typically pre-empted. In the case discussed, the defendants argued that the plaintiffs' claims depended on whether their union activities were protected under Section 7 of the NLRA. There is consensus that the National Labor Relations Board (NLRB) is not interested in the primary issue a state court would need to resolve regarding the use of state funds to assist or deter union organizing. The Chamber of Commerce contended that enforcing AB 1889 might require the state court to define a "labor organization," a determination it claims is exclusive to the NLRB. However, even if such a determination were necessary, it would only pertain to whether state funds were used improperly, not to whether the employer's actions violated the NLRA. This argument is similar to a previous case where incidental determinations about lawful union activity did not trigger Garmon pre-emption, as the focus was on accommodating union activity with state property rights. AB 1889 does not parallel the Minnesota statute in Marine Engineers, which allowed state courts to regulate activities identical to those under NLRB jurisdiction. The Chamber also argued that AB 1889's restriction on using state funds to "influence" employees would involve state courts in evaluating potential violations of Section 8(a) of the NLRA. However, the NLRB's focus would be on whether the employer interfered with Section 7 rights, irrespective of state fund usage, while AB 1889 would only address the misuse of state funds without assessing NLRA violations. The statute in question addresses the use of state funds, leading to a conclusion that there is no identity of claims and the primary jurisdiction test is not applicable. The analysis continues with the evaluation of potential preemption by Congress, which may prefer the costs of a jurisdictional gap over the disruption of national labor policy that could arise from state jurisdiction. It is noted that the risk of a state court misinterpreting federal law under AB 1889 is minimal, as the subject matter of these suits is distinct from the National Labor Relations Act (NLRA) focus on unfair labor practices. Unlike in the Sears case, where there was a significant overlap between state and NLRB jurisdiction, AB 1889 lacks such overlap. Additionally, the Chamber of Commerce's claim that AB 1889 offers an extra remedy for NLRA violations is dismissed; the statute's damages are intended solely for misuse of state funds regardless of any NLRA violation. The discussion highlights that California has a legitimate sovereign interest in regulating the use of its grant and program funds, akin to its interest in handling trespass claims. Even if AB 1889 affects the advocacy rights of employers, the nature of the statute—focusing on the funding source rather than the content of speech—minimizes any significant risk of infringing on protected conduct. Thus, it is concluded that the state's authority to manage its funds remains intact and is not preempted by federal law. The Supreme Court has emphasized the need for flexibility in applying the Garmon doctrine, especially when a state has a significant interest in regulating specific conduct without significantly disrupting federal regulatory schemes. A balanced approach considers the nature of federal and state regulatory interests and the potential for interference with federal regulation. Historically, exceptions to Garmon preemption have involved state court jurisdiction over common law torts, but this principle equally applies to a state's management of its grant funds. For example, California may restrict hospitals from using state funds to lobby against unionization while still allowing them to lobby with their own resources. This control over state funds is as vital to the state as regulating issues like defamation or violence. While states must adhere to federal supremacy, the Court has instructed caution before concluding that federal regulations infringe upon fundamental state powers. The ability of states to manage their limited resources is crucial, particularly when budgets are tight. Consequently, even if California's AB 1889 places restrictions on activities potentially linked to the NLRA, Garmon’s exceptions would protect the state statute from being preempted. The document also indicates that it will address whether AB 1889 violates the First Amendment rights of fund recipients in a separate discussion. The dissent argues that AB 1889 improperly requires employers to maintain neutrality in labor relations, a claim that misunderstands the statute's provisions. AB 1889 does not impose conditions on the receipt of state grants; employers can use their own funds as they choose, provided they do not use state funds for union-related advocacy. This restriction is consistent with precedents such as Rust v. Sullivan, where the Supreme Court ruled that limiting the use of government funds for specific activities does not infringe on the right to engage in those activities. California's decision to withhold funding for union-related activities does not violate First Amendment rights, as it does not deny the right to participate in such activities. The dissent's concerns about AB 1889 infringing on employers' rights by marking government funds as "Property of California" are unfounded and not supported by evidence from the district court. Furthermore, the legitimacy of AB 1889 is not diminished by its sponsorship by labor organizations. Overall, the statute reflects California's authority to designate how public funds are utilized without infringing upon constitutional rights. Judges are not to question the motives of the California legislature in enacting law AB 1889, similar to the precedent established by the Seventh Circuit in Lavin, where it was noted that legislative motivations do not invalidate laws. Legislation typically arises from coalitions among interest groups, and the focus should be on the law's effects rather than the reasons behind its passage. The only matter at hand is the legality of AB 1889’s grant and program fund restrictions, which align with established federal acts that require funds to be used for their intended purposes. The statute is not overly broad or unconstitutional, as its restrictions are carefully crafted to reflect constitutionally sound federal legislation. The dissent's claims that the statute disrupts economic principles or alters the legal tender are unfounded, as AB 1889's requirements mirror those found in the Workforce Investment Act, which prohibits using federal funds to influence union organizing. The dissent also overlooks that state programs serve public interests and do not need to guarantee profits for private entities. Therefore, sections 16645.2 and 16645.7 of AB 1889 are not preempted by federal law or unconstitutional, leading to the reversal of the district court's judgment and the vacating of its injunction, with a remand for further proceedings consistent with this opinion. Costs associated with influencing employees regarding unionization cannot be included in determining reasonable costs as per 42 U.S.C. 1395x(v)(1)(N). The dissenting opinion in *Chamber of Commerce v. Lockyer* raises concerns about California Assembly Bill 1889 (AB 1889), which expands the definition of "state funds" to encompass any money a private employer receives from state contracts. This bill, according to the dissent, undermines First Amendment rights by imposing gag rules that prevent employers from using their own funds to engage in discussions about union organizing. The dissent argues that AB 1889 disrupts the balance established by Congress in the National Labor Relations Act (NLRA), which promotes open dialogue about union representation and grants exclusive jurisdiction to the National Labor Relations Board (NLRB) for election rules. The statute is criticized for applying to all vendors receiving over $10,000 from the state, without defining what constitutes a "state program," thus affecting a broad range of businesses. The dissent contends that AB 1889 essentially coerces employers into maintaining neutrality in labor relations, contrary to their rights under the NLRA and the First Amendment, and manipulates the use of state funds in ways that unjustly limit employers' financial autonomy. AB 1889 establishes a neutrality requirement for businesses involved in state-regulated activities, impacting entities like hospitals and nursing homes that accept Medi-Cal payments. Such businesses are subject to the provisions of AB 1889, which raises concerns about First Amendment rights, as it could be interpreted to prohibit employers from advocating for or against unionization. The statute is seen as unconstitutional if it mandates neutrality as a condition for state contracts, as this would infringe on employers' rights to free speech. The court's opinion suggests that the statute is only constitutional if interpreted to apply solely to state funds, allowing employers to use their own funds for union advocacy. Once a contract is awarded and payment made, the state loses interest in how those funds are used; thus, attempts to impose restrictions on the use of these funds conflict with fundamental economic principles and First Amendment protections. Additionally, the law could unfairly affect employers who rely solely on contracts with the state, as it seeks to control how they utilize their profits derived from these agreements. Employers can offer various incentives such as bonuses, luxurious vacations, and extravagant parties, but AB 1889 prohibits them from holding mandatory meetings about unionization. Employers reliant on state revenue must refrain entirely from union-related discussions. The court asserts these employers have chosen this path through their “free-market choice” and emphasizes that contracting with the state does not negate First Amendment rights. Despite receiving state funds, employers maintain the right to spend their own money as they wish. The court finds AB 1889 overly broad and unconstitutional, as it regulates private funds and state funds alike. The National Labor Relations Act (NLRA) aims to balance employer and employee rights, protecting employers' rights to express their views on union activities. Section 8(c) specifically allows non-coercive expression regarding union organizing without constituting an unfair labor practice. Congress intended this section to ensure free speech for both employers and labor organizations, fostering open dialogue about labor matters. The Supreme Court has upheld the significance of Section 8(c) in promoting free debate between labor and management, reinforcing employers' rights to communicate their positions without union interference. Employers are permitted, under the First Amendment, to express their general and specific views about unionism in a non-coercive manner, which is crucial for maintaining freedom of speech in labor relations. This freedom is fundamental to the labor-management relationship, as effective collective bargaining and resolution of labor disputes depend on both parties engaging in open and vigorous debate. The principle that employees should make informed decisions regarding union membership is emphasized, ensuring they receive a balanced view of the advantages and disadvantages of unions. The National Labor Relations Board (NLRB) supports this policy, asserting that both employers and unions should be free to communicate their positions without coercion. However, California's AB 1889 law restricts state funds from being used to influence union organizing, defining such influence as any attempt to sway employees' decisions about supporting or joining labor organizations. Prohibited expenditures under the statute include employer payments for legal and consulting fees related to union organizing and the salaries of supervisors and employees involved in union activities. However, the statute exempts certain pro-union activities, such as addressing grievances and negotiating collective bargaining agreements. Employers must comply with extensive record-keeping requirements, certifying that state funds will not be used for union-related speech or activities, and these records must be available to the Attorney General upon request. The statute presumes that commingled funds are used to influence union organizing. Employers face severe penalties for violations, including treble damages—equal to three times the state funds improperly expended—and civil penalties. The Attorney General or private taxpayers can initiate lawsuits for injunctive relief and damages, with attorney’s fees awarded to prevailing plaintiffs but not to employers. The law imposes significant compliance burdens, effectively enforcing employer neutrality toward union organizing efforts and limiting their ability to campaign against unionization. This neutrality is similar to agreements often sought by unions. The statute, supported by labor organizations, is perceived to favor union organizing by creating an environment where employers are discouraged from opposing such efforts. The law's claimed neutrality belies the reality that most employers are unlikely to support unionization among their employees. The California Teamsters Public Affairs Council supports AB 1889, which prohibits state-funded employers from using those funds to discourage unionization, addressing the prevalent issue of employer campaigns against labor organizing. The statute imposes stringent compliance requirements, mandating employers to maintain detailed records that separate state funds from expenses related to union organizing, with a presumption that state funds are used for anti-union activities unless proven otherwise. Employers must create distinct accounting and payroll systems to track every expense and employee time associated with union opposition, making it exceedingly difficult to contest unionization efforts. Post-enactment, unions have leveraged the compliance burdens of AB 1889 to strengthen their bargaining position, reporting alleged violations to the California Attorney General. Specifically, unions accused employers of failing to provide separate paychecks for employees attending mandatory union-related meetings and claimed violations for hiring legal counsel without clear funding separation from state sources. These actions illustrate a concerted effort by unions to exploit AB 1889 for strategic advantage in labor disputes, thereby shifting the balance of power favorably towards unions against employers. The statute AB 1889 significantly impacts employers' speech rights regarding union organizing, violating the First Amendment and being preempted by the National Labor Relations Act (NLRA). The Supreme Court's preemption doctrines aim to ensure uniform application of labor rules and avoid conflicts from varying local attitudes. Two key preemption principles, Garmon and Machinists, maintain a balance of power between management and labor. The California statute, while presented as neutral, restricts employers' ability to discuss union matters and advise employees, thereby favoring labor unions and disrupting the intended balance established by Congress. Machinists preemption prohibits states from limiting the tools available to employers in collective bargaining, as such regulations obstruct Congress's objectives. Employers retain the right to express views on unionization through various means, including public meetings, one-on-one discussions, and written materials, as long as these do not violate election-related timing restrictions. A state law that specifically targets and regulates processes governed by the National Labor Relations Act (NLRA) is preempted by federal law under the Machinists doctrine. AB 1889 directly impacts the union organizing process, imposing significant compliance costs and legal risks on employers who engage in this process using federally protected self-help mechanisms. This interference contradicts Congress's intent to keep this area free from state regulation. The law creates a coercive environment for unionization by threatening costly litigation against employers who express opinions about unionization, thereby restricting management's financial flexibility and empowering pro-union groups. Preemption applies even when federal law does not explicitly protect the conduct in question if state law frustrates federal legislative goals. The Machinists doctrine confirms that activities protected by federal law include those not expressly covered by the NLRA but still intended to be free from governmental regulation. AB 1889 complicates the balance between labor unions and employers by allowing unions access to employers’ financial records through state court lawsuits, bypassing the federal requirement that such access can only occur post-election for legitimate bargaining purposes. The NLRA's core principle is that effective collective bargaining requires open debate about unionization, and the Act aims to restore equality in bargaining power by protecting workers' rights to self-organize and choose representatives. By obstructing information flow and discussions regarding unionization, AB 1889 disrupts the balance intended by Congress and impedes the NLRA’s processes, validating its preemption under the Machinists doctrine. California's use of its spending power to regulate activities related to the National Labor Relations Act (NLRA) does not exempt it from federal preemption, as this distinction does not alter the fundamental interference with the federal labor scheme. The Garmon preemption doctrine serves to maintain a cohesive national labor policy by preventing states from imposing regulations that could disrupt the NLRA's bargaining process. Specifically, California's statute, AB 1889, infringes on employers' federally protected speech rights, thereby obstructing the National Labor Relations Board's (NLRB) ability to enforce election speech rules and ensure fair elections. The Supreme Court has underscored the necessity of keeping certain regulatory areas free from state intervention to uphold national policy. Garmon preemption arises in two scenarios: first, when a state regulation directly conflicts with federal protections or prohibitions, and second, when an activity is arguably protected or prohibited under federal law, necessitating deference to the NLRB's jurisdiction to prevent state interference. In this case, AB 1889 is preempted under the first scenario because the NLRA explicitly safeguards employers' speech rights, thus rendering the state regulation incompatible with federal law. The comprehensive nature of the NLRA indicates that any activity not penalized by the Act is effectively protected, and AB 1889's restrictions on these rights interfere with NLRB jurisdiction. Congress has tasked the National Labor Relations Board (NLRB) with overseeing elections and defining unfair labor practices under the National Labor Relations Act (NLRA). The NLRB adopts a laissez-faire approach to speech during union organizing, promoting robust debate while regulating employer speech to align with Section 8(c) of the NLRA. It does not evaluate the truthfulness of campaign statements nor invalidate elections based on misleading information, but it does protect against coercive conduct that undermines employee choice, such as threats or promises. The NLRB enforces "time, place, and manner" rules to restrict specific campaign activities near polling places and has established that employers can hold mandatory meetings and distribute anti-union materials despite no-solicitation rules. California's AB 1889, which restricts employer speech during union organizing, conflicts with the NLRB's relaxed rules. This statute undermines the NLRB's authority to ensure fair elections and goes against the NLRA's aim to reduce industrial strife. By permitting unions and the California Attorney General to litigate against employer speech that the NLRB protects, AB 1889 directly challenges the federal framework established by Congress, which entrusted the NLRB with determining election procedures. The concept of Garmon preemption arises here, indicating that state regulation interfering with the NLRB's authority and protections poses a significant risk of conflict with federal law, thereby rendering AB 1889 preempted. The court's opinion misinterprets the Garmon doctrine by applying an overly narrow view that is not suitable for the current dispute. It incorrectly relies on the Sears, Roebuck case, suggesting that Garmon preemption is limited to situations where the controversy in state court is identical to that before the NLRB. However, this identicality requirement only pertains to activities that are arguably prohibited by the National Labor Relations Act (NLRA). The opinion overlooks that heightened concerns under the Supremacy Clause mean that this requirement does not apply when the activity is arguably or actually protected by the Act. In examining Sears, where the Supreme Court assessed whether a state court could adjudicate a trespass lawsuit related to union picketing, it concluded that preemption arises only when the controversy is the same in both forums for arguably prohibited conduct. The Court found that the NLRB’s examination of potentially prohibited conduct would differ significantly from a state court's evaluation of trespass, leading to the conclusion that Garmon preemption did not apply. Conversely, the Court acknowledged that state interference with conduct actually protected by the NLRA raises constitutional concerns under the Supremacy Clause to a greater extent than for prohibited conduct. Ultimately, the Court determined that while the union's picketing could be considered arguably protected, the assertion of state jurisdiction over the trespass claim did not significantly risk infringing on protected conduct, indicating that the identicality requirement does not hold for arguably protected activities. Thus, the opinion's assertion that Garmon preemption requires identical inquiries from both courts only applies to arguably prohibited conduct. Preemption standards under the Act are less stringent for conduct that is arguably protected due to heightened federal supremacy concerns. Garmon preemption is more readily established for activities that are explicitly protected by the National Labor Relations Act (NLRA) rather than merely arguably prohibited. Section 8(c) of the NLRA explicitly safeguards employers' speech rights, which is critical in the context of AB 1889. The Sears Court did not address cases involving actually protected conduct, and the case in question does not clearly indicate that the state court's regulation is either prohibited or protected by the federal act. Therefore, the strict identicalness test from Sears does not apply to the Garmon preemption analysis of AB 1889. The court's reliance on Sears is deemed misplaced, as traditional Garmon analysis should consider the explicit free speech protections for employers. Since AB 1889 interferes with these rights and undermines NLRB speech rules and election procedures, it is concluded that AB 1889 is preempted under Garmon. The dissenting opinion asserts that AB 1889 also violates the First Amendment and agrees with the District Court's decision to grant summary judgment in favor of the plaintiffs.