In Search of Public Employers Willing to Fight for Their Right to Free Speech

The recent Janus decision by the US Supreme Court gives public employees the right to quit union membership – or to never join a union in the first place. This sweeping ruling not only banned unions from requiring non-members to still pay so-called “agency fees,” but it required unions to obtain “affirmative consent” from public employees before enrolling them as members.

Needless to say, in states like California, where public sector unions exercise nearly absolute control over the state legislature, several laws were swiftly passed to thwart the impact of Janus. In terms of employer rights, two of these laws are particularly noteworthy:

SB 285 prohibits a public employer from “deterring or discouraging” public employees from becoming or remaining members of an employee organization. Public employers are already required 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 grants the Public Employment Relations Board jurisdiction over alleged violations of its provisions instead of the courts. This board is stacked with labor veterans and is very unlikely to ever rule in favor of a public employer vs. a union.

SB 550 requires employers to pay union legal fees if they lose in litigation vs. the unions.

Imagine the chilling effect these two laws are having on public employers. Can they say anything about union membership? What if they say “unions membership is good,” but because they didn’t say “union membership is great,” they deterred someone from joining the union, or renewing their union membership? Not only is SB 285 denying free speech to public employers, but it is so vaguely written that it is impossible for public employers to have any idea what might constitute a violation of the new law.

Moreover, if a union decides to make an example of any public employer whose communications with public employees are deemed transgressive, they will not be sued in a courtroom, but in an action before the biased Public Employment Relations Board.

CALLING ALL FREEDOM LOVING CALIFORNIA AGENCIES

If your school district, transit district, water district, city or county wants to challenge, or at least compel more clarity, with respect to the wording of SB 285, there is something you can do. Contact CLEO’s Matt Patterson, at matt@calpolicycenter.org, and let him know your agency is interested in fighting for employer free speech.

With only a few agencies as committed plaintiffs, it will be possible to go to court and ask for a declaration of rights, explicitly stating what an employer can and cannot say to a public employee regarding union membership. As it is, even saying nothing can put public agencies at risk.

Participation in this lawsuit will cost the plaintiffs nothing. It is an opportunity to clarify your rights as public employers.

REFERENCES

California’s Public Employment Relations Board – 2018, currently stacked 3-1 in favor of public sector unions 

The three:

• 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.
• The fifth position is currently open on PERB, meaning that right now there is a 3-1 advantage favoring board members with union affiliations. Just vacating the PERB board was a possibly neutral party, Mark C. Gregersen, who according to his biography on the PERB website had “a 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 SUMMARY OF CALIFORNIA’S ANTI-JANUS LEGISLATION

In response to Janus, California’s unions representing public servants are doing the following:

1 – Expanding the pool of public employees eligible to join unions – AB 83, SB 201, and AB 3034

2 – Making it difficult, if not impossible, for employers to discuss the pros and cons of unionization with employees – SB 285 and AB-2017

3 – Precluding local governments from unilaterally honoring employee requests to stop paying union dues – AB 1937 and AB-2049

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

5 – Moving the venue for dispute resolution from the courts to PERB, which is stacked with pro-union board members – SB 285 and AB 2886

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

ADDITIONAL READING

In Search of Government Union Transparency, July 2018

California’s Government Unions Collect An Estimated $800 Million Per Year, July 2018

How Government Unions Will Attack the Janus Ruling, June 2018

California’s Government Unions Take Steps to Obliterate Janus Impact, June 2018

A Catalog of California’s Anti-Janus Legislation, June 2018

Funding the Post-Janus Fight Against Government Unions, May 2018

Janus vs AFSCME Ruling Imminent – What will Change?, May 2018

A Post-Janus Agenda for California’s Public Sector Unions, February 2018

After Janus, Will Union Grassroots Members Assert their Political Voice?, December 2017

How Can Local Officials Prepare for the Upcoming Janus vs AFSCME Ruling?, October 2017