CHARLESTON, W.Va. — A key spokesman for the “captive audience” bill that bars employers from forcing workers into attending compulsory work site talks on politics and religion says the measure isn’t likely to pass in its initial draft.

At the same time, the measure has come under attack already from a state senator, who views it a new assault on the First Amendment guarantee of free speech.

Without question, the bill exiting the Joint Standing Committee on the Judiciary in December’s interims was rooted in the frustrations of organizing efforts by the United Mine Workers of America at a Massey Energy installation in West Virginia.

While that provided some of the impetus, Delegate Tim Miley, D-Harrison, says his stand was that no such bill would be crafted that solely benefited union organizing.

“We were going to identify those areas that might be sensitive, those areas of speech and communications there might be some sensitivity to, so that we were going to make it hopefully a bill that would address areas of sensitivity and great concern to people,” Miley said Wednesday.

“We just weren’t going to pass something solely for the fact that somebody was mad at Massey Energy or (CEO) Don Blankenship. I’m not into targeting people or retaliation by legislation.”

Sen. Clark Barnes, R-Randolph, quoting the bill’s proposed ban on compulsory meetings where the thrust is to let an employer voice his opinion on religious or political matters, says such safeguard are already in place under federal law.

“So let’s isolate the real purpose of the proposed legislation,” the senator said in an e-mail critique of the proposal.

“Union organization is masked in the cloak of politics and religion.”

Barnes wondered why such a law is needed in West Virginia if federal law now bars discrimination at the work site based on race, religion, political beliefs, sexual orientation and other reasons.

“Could this be considered a brand new attack on the constitutional rights of free speech?” he asked.

“Can we assume the employees should not have the right to know how these decisions would affect their work place environment, their benefits, their personnel matters? Are we to assume that the average West Virginia worker is not intelligent enough to process information from both sides of an argument? I’m insulted. My grandfather was one of the first organizers sent to Matewan by (former UMWA President) John L. Lewis.”

Miley agreed, to some extent, that the bill could infringe on free speech, particularly where a small firm is concerned. He used his own seven-employee law firm as an example.

“When you’re in small quarters, small confinements, anything I say arguably can be deemed captive potentially by an employee because of my mere fact of saying it in the presence of someone else in small quarters, it might be alleged or argued that they were required or mandated to listen to me because they couldn’t go anywhere else,” the attorney said.

Perhaps, he suggested, the bill needs to be tweaked so it applies only to employers with a certain number of employees, such as 50, or 100, where the work site is large enough so anyone wanting to avoid a boss’ remarks on sensitive topics would have room to get away.

“It’s fraught with some potential problems,” Miley acknowledged.

“But instead of making these sweeping criticisms like Sen. Barnes says, we ought to work toward identifying what problems there are and addressing them if they can be addressed in that bill. If not, the bill just won’t pass.”

Barnes calls the proposal an “affront” to free speech.

“Private employers should be allowed to decide what they discuss with their employees,” the senator said.

“Limits to such speech should only be placed in extreme circumstances such as sexual harassment or verbal abuse, and these are already dealt with by current laws.”





Mannix Porterfield writes for The Register-Herald in Beckley, W.Va.