- The Washington Times - Friday, March 6, 2020

Seven elected officials in California have sued the state for violating their First Amendment rights by forbidding any talk about public employee unions that the union could interpret as negative.

At issue is Section 3550 of the California code that states that “a public employer shall not deter or discourage” talk of unions or even offer explanations of what is required of employees in terms of union dues and the like.

Opponents call it an egregious effort to undercut the Supreme Court’s 2018 decision in Janus v. AFSCME, which allows public employees to opt out of paying union dues. Indeed, Democratic lawmakers in Sacramento set about putting union protections in place when the justices agreed to hear the Janus case, and they reaffirmed Section 3550 in 2018 when the decision was looming.

“We don’t have to speculate that this will have a chilling effect on speech because we have already seen it in complaints filed to the California Public Employment Relations Board,” said Terry Pell, an attorney with the Center for Individual Rights that filed the lawsuit on behalf of the elected officials. “The union is taking a very broad view of what constitutes an unfair labor practice and they are using it to silence critics, to get people to shut up, essentially.”

A spokeswoman for the American Federation of State, County and Municipal Employees (AFSCME), the losing side in Janus, did not respond to questions about Section 3550 and the lawsuit but said unions are thriving post-Janus in terms of money and membership.



In addition to California, pro-public union politicians in New York, Illinois, Oregon and Washington have tried to blunt the blow from Janus to unions, a hit that has been less damaging than some believed it would be two years ago, according to people across the labor spectrum.

Still, Section 3550 has forced school board members and administrators to be much more circumspect, which is why the lawsuit’s plaintiffs include school board members and a mayor, with the defendant California’s Public Employment Relations Board.

“I campaigned not as a union-buster per se, but as someone who believes unions have assumed an outsized influence in our schools and education,” said Jim Reardon, the president of the Capistrano Unified School District and a plaintiff who is running for reelection in November. “Now, if I make those comments as president of the board or as a candidate, I could get hit with a PERB complaint, whereas an opponent who might be backed by the union could say anything they want.”

Even reading the Supreme Court’s Janus opinion at a public hearing could result in a complaint of unfair union practices, which has led many in-house counsels to caution employers not to speak about union topics at all rather than face expensive litigation, Mr. Pell said.

One of the plaintiffs in the lawsuit, known as Barke v. Banks et al., is a school board member who says he no longer feels free to inform his constituents about union negotiating positions on issues that have significant consequences for his school system’s budget, including salaries, benefits, and seniority rules.

A city council member was threatened with a Section 3550 complaint because she posted to Facebook a letter questioning union support for a candidate to city council.

The United Teachers of Los Angeles group has filed several Section 3550 complaints, Mr. Pell said. The group did not respond to requests for comment.

One of the group’s bete noires in the Los Angeles area are schools run by the Alliance College Ready Public Charter Schools Corp. In one case attached to the lawsuit, the UTLA filed a Section 3550 complaint about an email sent to Alliance teachers and staffers before a school break, telling them they did not have to admit UTLA representatives into their homes during the vacation and urging them to read carefully anything the UTLA asked them to sign.

Another city council member posted a letter on Facebook that highlighted the union’s support for a competing council candidate, while the California School Boards Association issued a legal letter cautioning school board members to monitor their communications with employees, particularly as it related to the Janus ruling, for fear union complaints could trigger costly litigation.

Mr. Pell said that while Section 3550 was unconstitutional when the state legislature reaffirmed it in 2018, the plaintiffs waited to filed suit because they wanted to see how the law played out in practice.

The measure fails to pass constitutional muster on several fronts, Mr. Pell argued. For one thing, it is one-sided, handcuffing one side on matters of public importance. Secondly, the law singles out one group of people whose speech is curtailed — public employers.

The lawsuit involves one key part of a package of pro-labor laws California passed in response to Janus. In addition to Section 3550, California passed laws that guarantee unions access to employee orientation meetings and restrict the release of employee’s contact information to all organizations but unions.

The lawsuit is the latest event in a fight coast-to-coast between pro-union politicians and conservative or libertarian opponents. In New York, Democratic Gov. Andrew Cuomo made it clear he and Albany lawmakers would do everything they could to protect unions, while in Washington state, the Freedom Foundation said Democratic Gov. Jay Inslee “pushed legislation intended to undermine public employees’ First Amendment rights.”

“Gagging government employees from providing information about a public employee’s rights regarding union membership is just one of the many tactics public sector unions are using to subvert the U.S. Supreme Court’s Janus decision,” said Aaron Withe, Freedom Foundation national director.

“The extent of the government union efforts to force workers to stay in unions is staggering,” Mr. Withe added, noting his group has “60 ongoing cases against government unions and have filed 12 lawsuits in California alone.”

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