No state in America is as firmly in the grip of public sector unions as California. For nearly twenty years, union controlled Democrats have exercised nearly absolute power in the State Legislature. Over the past few years, as they have slipped in and out of having a two-thirds majority, and often with the help of a few Republican legislators, they have been able to pass legislation at will, sometimes within days.
Government union power in California derives from their ability to automatically collect over $1.0 billion per year in dues from payroll departments of state and local agencies, combined with their ability to compel well over 1.0 million state and local government employees working within any of their over 6,000 bargaining units to pay these union dues.
While it is legally possible for these government employees to opt out of formal union membership and only pay so-called “agency fees,” the process to opt-out is deliberately rendered tedious and intimidating, and in any case agency fees usually are around 80% of the total dues.
The Janus vs. AFSCME case threatens public sector union power in California and dozens of other states, because, depending on the ruling, it may permit public employees to opt-out of paying any dues at all, including agency fees. But if unions made it difficult and intimidating for government employees to opt-out of paying the full union dues, i.e., if they made it difficult for these employees to get a 20% discount, imagine how difficult they’re going to make it for employees to get a 100% discount.
What the unions can do in Sacramento changes every day. But insofar as a Janus ruling could come down from the US Supreme Court any day, it is appropriate to delve into a bit of wonkiness, and list every recently enacted and pending law, backed by unions, that California’s legislature is compliantly handing down in order to thwart the intent of the Janus plaintiffs.
CALIFORNIA’S ENACTED ANTI-JANUS LEGISLATION
AB-83 Collective bargaining: Judicial Council – enacted
This bill permits unionization of Judicial Council staff, something previously off-limits. Here’s what they do, quoted from their website: “The Judicial Council is the policymaking body of the California courts, the largest court system in the nation. Under the leadership of the Chief Justice and in accordance with the California Constitution, the council is responsible for ensuring the consistent, independent, impartial, and accessible administration of justice. Judicial Council staff implements the council’s policies (italics added).” Unionized judicial council staff – what could possibly go wrong?
SB-201 Higher Education Employer-Employee Relations Act: employees – enacted
This bill permits students who have jobs at the schools they attend to unionize. This will, of course, allow the unions to collect their cut from yet another category of public payroll, but it will also offer them another avenue to indoctrinate students, since they aren’t already getting enough indoctrination from our public schools and universities.
SB-285 Public employers: union organizing – enacted
This goes straight at the heart of Janus. Layering on top of existing federal law but making it even more explicit and restrictive, this bill would prohibit a public employer from deterring or discouraging public employees from becoming or remaining members of an employee organization. Employers are already forced to be extremely careful how they communicate the pros and cons of unionization, but now they’ll be even more hamstrung, while the unions have full access to employees to argue and advocate their position. Worse, this bill would grant the Public Employment Relations Board jurisdiction over alleged violations of its provisions instead of the courts. This board, PERB for short (see footnotes; “PERB Board”), is stacked with labor activists and is very unlikely to ever rule in favor of a public employer vs. a union.
SB-550 Public school employment: meeting and negotiating: legal actions: settlement offer: attorney’s fees – enacted
In this law, from now on, if a union makes an offer to settle a dispute alleging an employer’s failure to provide wages, benefits, or working conditions, and if the employer does not accept the offer and fails to obtain a more favorable judgment, the employer must pay the union’s attorney’s fees and expenses incurred after the offer was made. Note this “loser pays” provision only applies to the employer, not the union. This legislation puts tremendous pressure on agencies to agree to union demands in order to avoid court, especially those smaller agencies, cities and counties that don’t have deep pockets like the unions.
CALIFORNIA’S PENDING ANTI-JANUS LEGISLATION
AB-1937 Public employment: payroll deductions – passed Assembly
This bill appears to be designed to prevent local jurisdictions from enacting measures that might expedite an individual employee’s decision to stop paying union dues. Reading through the introductory text of the bill, here is a key excerpt: “…the bill would authorize employee organizations and bona fide associations to request payroll deductions and would require public employers to honor these requests. The bill would authorize public employers to make rules and regulations for the administration of specified payroll deductions, subject to meeting and conferring with the applicable employee organizations.” Notice that it is the union, not the employee, who will notify the employer to start dues deductions, and notice that any rules the employer may wish to apply to the administration of union dues deductions has to be cleared (meet and confer) with the union.
AB-2017 Public employers: employee organizations – passed Assembly
Similar to SB 285, This bill broadens the definition of employer to “those employers of excluded supervisory employees and judicial council employees.” It then “prohibits a public employer from deterring or discouraging prospective public employees, as defined, from becoming or remaining members of an employee organization.” The operative words are discourage and deter, which can be quite broadly interpreted. For example, even an employer stating that an employee does not have to join a union might “deter” them from doing so. The intent of this bill is to deter employers from saying anything to employees about unionization, with no such restrictions on the unions.
AB-2049 Classified school and community college employees: payroll deductions for employee organization dues – passed Assembly
Similar to AB 1937, but even more explicit, “this bill would authorize school districts and community colleges to rely on labor unions when determining whether a request to discontinue payroll deductions for union dues is in conformity with the requirements established in the initial payroll deduction authorization.” The intent is to make it harder to get out of paying union dues by adding layers of union bureaucracy to the process.
Concurrent with ensuring the union, and not the agency, has the final say in suspending dues withholding, the unions are revising these “initial payroll deduction authorizations.”
Take a look at this photo of a union contract (below). Note how it states “this authorization shall renew annually, irrespective of my membership status,” and “a revocation must be mailed… postmarked between 75 days and 45 days before such annual renewal date.” There are at least two gotchas here. First, automatic renewal of payroll deductions “irrespective of membership status” means that someone wanting to stop paying union dues has to opt out every year. Second, if they neglect to opt-out, via mail within the exact window of time and in advance of the automatic renewal, they will have to pay dues for another year.
No wonder the unions want themselves, and not the agency, to have the ability to say whether dues will stop being withheld. In any city or county with local elected officials willing to stand up to their unions (admittedly a rare occasion), ordinances could be passed allowing an employee to simply inform their payroll department that they don’t want to pay union dues. That will be impossible under these laws.
The Hotel California Contract – You Can Check In, But Checking Out…
AB-2886 Public Employee Relations Board: Orange County Transportation Authority: San Joaquin Regional Transit District – passed Assembly
Because the above named agencies were not previously required to resolve labor disputes using the Public Employment Relations Board (PERB), this bill changes that so they will have to use PERB. By moving the dispute resolution process out of the courts and instead putting them under the jurisdiction of PERB, the unions improve the probability of winning these disputes.
AB-3034 Public transit employer-employee relations: San Francisco Bay Area Rapid Transit District – passed Assembly
This bill, similar in concept to AB 83 and SB 201, allows the unions to collect their cut from yet another category of public payroll, in this case BART supervisors, by allowing them to unionize.
SUMMARY OF ANTI-JANUS LEGISLATION
So in response to Janus, California’s unions representing public servants are doing the following:
4 – Making employers pay union legal fees if they lose in litigation but not making unions pay employer costs if the unions lose – SB 550
This catalog of countermeasures to Janus is undoubtedly incomplete. A few enacted in 2017 have probably slipped under our radar, and there will be many more crafted in the coming months and years, especially if there is a strong ruling in favor of the plaintiff. But California’s unions have been doing this for years. Whether it’s charter schools, “release time,” transparency in government, charter cities, public education reform, budget and tax issues, project labor agreements, or pension reform, the agenda of the union always comes first in Sacramento.
When it comes to protecting the government union agenda in California, pro-union legislation is fast and furious, belying the more common political reality of gridlock.
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California’s Public Employment Relations Board – 2018, at least 3-2 stacked for unions
- Arthur A. Krantz “represented unions, employees and nonprofits in litigation, arbitration and administrative cases, and he worked on law reform, organizing, negotiation, and strategic campaigns to effect social change. Krantz did this work as an associate and partner at Leonard Carder, LLP.” San Francisco based Leonard Carder, LLP‘s home page states: “As one of the oldest and most renowned law firms representing labor unions and employees, Leonard Carder’s focus is to provide top-flight legal representation to the labor movement.”
- Priscilla Winslow‘s “career in public sector labor law spans over 30 years, during which time she served for 15 years as Assistant Chief Counsel for the California Teachers Association where she litigated and advised on a variety of labor, education, and constitutional law issues.”
- Eric Banks “served in multiple positions at the Service Employees International Union, Local 221 from 2001 to 2013, including Advisor to the President, President, and Director of Government and Community Relations.”
The other two:
- Erich Shiners: “Prior to his service on the Board, Erich Shiners represented and advised public agency employers in labor and employment matters, including many cases before PERB. Most recently he was Senior Counsel at Liebert Cassidy Whitmore.” Liebert Cassidy Whitmore represents itself as California’s preeminent public management employment law firm with over 80 attorneys in five offices.
- Mark C. Gregersen‘s “career in public sector labor relations spans over 35 years. Prior to his appointment to the California Public Employment Relations Board, he has served as director of labor and work force strategy for the City of Sacramento and director of human resources for a number of California cities and counties.”
A Post-Janus Agenda for California’s Public Sector Unions, February 2018