On Feb. 7, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit upheld a California law prohibiting public employers from discouraging union membership or dues deduction authorizations.
About the ruling
On Feb. 21, 2020, seven plaintiffs—”elected members of various local California government bodies, including city councils, school boards, and community college and special purpose districts”—filed a complaint in the U.S. District Court for the Central District of California challenging California Government Code Section 3550. The defendants were the members and general counsel of the California Public Employment Relations Board (PERB).
The law in question states:
“A public employer shall not deter or discourage public employees or applicants to be public employees from becoming or remaining members of an employee organization, or from authorizing representation by an employee organization, or from authorizing dues or fee deductions to an employee organization. This is declaratory of existing law.”
The plaintiffs said the law’s “threat of liability, coupled with a complete lack of guidance as to compliance” was “chilling the ability of elected officials … to speak freely about public employee unions and the implications of collective bargaining proposals coming before the city councils or boards on which they serve.” The plaintiffs alleged the law violated the First Amendment and asked the court to declare it unconstitutional.
On Aug. 25, 2020, Judge Josephine Staton ruled in favor of the defendants and dismissed the case. President Barack Obama (D) nominated Staton to the court in 2010.
The plaintiffs appealed to the Ninth Circuit in October 2020. Oral arguments were held on Oct. 21, 2021. In a unanimous ruling on Feb. 7, a three-judge panel—Judges Consuelo M. Callahan, John B. Owens, and Danielle J. Forrest—affirmed Staton’s decision. According to the court’s summary:
“The panel determined that section 3550 does not regulate Plaintiffs’ individual speech, and any restrictions the statute does impose on Plaintiffs’ ability to speak on behalf of their employers did not injure Plaintiffs’ constitutionally protected individual interests. The panel held that Plaintiffs had not shown that they had a well-founded fear that PERB would impute statements made by Plaintiffs in their individual capacities to Plaintiffs’ public employers, particularly in light of concessions made by PERB in this litigation. The panel concluded that Plaintiffs had failed to demonstrate that they have suffered an injury in fact sufficient to establish their standing to pursue their pre-enforcement challenge.”
President George W. Bush (R) nominated Callahan to the court, Obama nominated Owens, and President Donald Trump (R) nominated Forrest.
According to the San Francisco Chronicle’s Bob Egelko, “A lawyer for the local officials said the ruling was disappointing but not a total defeat.” Center for Individual Rights president Terence Pell said, “The good news is that the court clarified elected officials can criticize union policies at public hearings, on the campaign trail and in discussions with constituents. … The bad news is that elected officials can be subject to state investigation any time a union wants to file a complaint.”
The case name and number are Jeffrey Barke, et al. v. Eric Banks, et al. (20-56075).
About Section 3550
Section 3550 was enacted in 2017 and amended in 2018. The 2017 version of the law said, “A public employer shall not deter or discourage public employees from becoming or remaining members of an employee organization.”
Senate Bill No. 866 was a budget trailer bill introduced in January 2018. Among its provisions was an amendment to Section 3550 prohibiting public employers from discouraging employees from authorizing union representation or from authorizing union dues or fee deductions. Gov. Jerry Brown (D) signed Senate Bill 866 into law on June 27, 2018, the same day as the U.S. Supreme Court’s ruling in Janus v. AFSCME.
What we’re reading
- Roll Call, “Hill staffers are organizing. What could their unions look like?” Feb. 9, 2022
- Florida Politics, “Bill to tighten union regulations heads to final House committee,” Feb. 8, 2022
- Reuters, “Marathon 9th Circ. session will focus on public workers’ bid to exit unions,” Feb. 8, 2022
- The New York Times, “President Biden adopts steps for promoting union membership,” Feb. 7, 2022
The big picture
Number of relevant bills by state
We are currently tracking 100 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking.
Number of relevant bills by current legislative status
Number of relevant bills by partisan status of sponsor(s)
Recent legislative actions
Below is a complete list of relevant legislative actions taken since our last issue.
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California SB931: This bill would allow a union to bring a claim before the Public Employment Relations Board against a public employer allegedly in violation of California Government Code Section 3550 and would set civil penalties for violations. Section 3550 prohibits public employers from discouraging union membership.
- Democratic sponsorship.
- Introduced Feb. 7, Senate voted to suspend Joint Rule 55.
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Colorado SB109: This bill would prohibit public employees and unions from carrying out certain actions including strikes and work slowdowns. It would give public employers permission to seek a court injunction against such actions.
- Republican sponsorship.
- Senate State, Veterans, & Military Affairs Committee hearing scheduled for Feb. 15.
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Florida H1197: This bill would require certain public employees to sign an authorization form before joining a union acknowledging that union membership is not a condition for employment and that membership and dues are voluntary. It would require unions to allow certain public employees to end their membership by a written request. The bill would also prevent employers from deducting dues from certain employees’ paychecks. It would also amend requirements for bargaining agent recertification and union registration renewal.
- Republican sponsorship.
- Reported out of House State Administration & Technology Appropriations Subcommittee Feb. 8, now in House State Affairs Committee.
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Illinois HB4960: This bill would apply the definitions of “confidential employee,” “managerial employee,” and “supervisor” in the Illinois Public Labor Relations Act to all public employees. It would prevent any public employee position from being excluded from a bargaining unit before the position is filled.
- Democratic sponsorship.
- Assigned to House Labor & Commerce Committee Feb. 9, hearing scheduled for Feb. 16.
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Illinois HB5009: This bill would provide that terminations or more than 30-day suspensions of peace officers resulting from arbitration are subject to judicial review. It would set certain conditions of enforceability for written agreements about grievance procedures between law enforcement agencies and peace officer bargaining units. It would require the Illinois Labor Relations Board to adopt certain rules for law enforcement officers.
- Democratic sponsorship.
- Assigned to House Police & Fire Committee Feb. 9, hearing scheduled for Feb. 17.
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Indiana SB0297: This bill would amend the language of the authorization form school employees must sign before union dues may be deducted from their pay.
- Republican sponsorship.
- First reading, referred to House Employment, Labor and Pensions Committee on Feb. 8.
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Maryland HB458: This bill would require the involvement of a neutral arbitrator in the collective bargaining process for state employees.
- Democratic sponsorship.
- House Appropriations Committee hearing scheduled for Feb. 15.
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Maryland HB751: This bill would extend collective bargaining rights to certain graduate students within the University System of Maryland, Morgan State University, and St. Mary’s College of Maryland.
- Democratic sponsorship.
- House Appropriations Committee hearing scheduled for Feb. 15.
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Maryland SB472: This bill would require the involvement of a neutral arbitrator in the collective bargaining process for state employees.
- Democratic sponsorship.
- Senate Budget and Taxation Committee hearing scheduled for Feb. 16.
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Oklahoma SB1380: This bill would require school employees to sign an annual authorization form before school districts may deduct union dues or political contributions from employee paychecks. The bill would prescribe the wording of the authorization form. It would also require school districts to confirm authorizations by email before deducting dues.
- Republican sponsorship.
- First reading Feb. 7, second reading referred to Senate Education Committee Feb. 8.
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Oklahoma SB1404: This bill would require that school employee unions submit to secret-ballot elections in order to continue as collective bargaining agents. A majority of employees must vote in favor in order for the employee union to continue to represent the unit.
- Republican sponsorship.
- First reading Feb. 7, second reading referred to Senate Education Committee Feb. 8.
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Oklahoma SB1579: This bill would allow school boards to grant unpaid leaves of absence for employees to hold office in an employee association if certain criteria are met. An employee organization would be required to comply with this law in order to be recognized as the representative of a bargaining unit.
- Republican sponsorship.
- First reading Feb. 7, second reading referred to Senate Education Committee Feb. 8.
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Rhode Island S2244: This bill would establish a method of dispute arbitration for municipal employees, who are not allowed to strike. It would allow arbitration decisions to be petitioned to the Rhode Island Supreme Court.
- Democratic sponsorship.
- Introduced, referred to Senate Labor Committee on Feb. 8.
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Virginia HB336: This bill would require a 51% vote by public employees in a collective bargaining unit to certify a bargaining representative in localities that have authorized collective bargaining.
- Republican sponsorship.
- Subcommittee #1 recommends reporting with substitute on Feb. 8. House Commerce and Energy Committee reported with substitute Feb. 10. Committee substitute printed.
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Virginia HB337: This bill would prohibit collective bargaining agreements from having a public employer provide compensation or compensated leave time for union activities. It would require unions to compensate public employers if union activities infringe upon their time or resources.
- Republican sponsorship.
- Subcommittee #1 recommends reporting on Feb. 8. Reported from House Commerce and Energy Committee Feb. 10.
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Virginia HB341: This bill would give public employees the right to resign from a union and stop paying dues at any time. It would require public employees to give written consent before employers may deduct union dues from their pay, and it would prescribe the wording of the authorization form. The bill would require annual reconfirmation of consent for union membership and dues deductions. The bill would also require employers to annually notify employees they have the right to resign from a union and provide an average of the dues they would pay.
- Republican sponsorship.
- Subcommittee #1 recommends reporting with substitute on Feb. 8. House Commerce and Energy Committee reported with substitute Feb. 10. Committee substitute printed.
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Virginia HB790: This bill would prevent localities from entering collective bargaining agreements with law enforcement employee associations if the agreements do not meet certain criteria.
- Republican sponsorship.
- Subcommittee #1 recommends reporting on Feb. 8. Reported from House Commerce and Energy Committee Feb. 10.
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Virginia HB883: This bill would repeal provisions allowing local governments to bargain collectively with their employees upon adopting an authorizing ordinance or resolution.
- Republican sponsorship.
- Subcommittee #1 recommends reporting with substitute on Feb. 8. House Commerce and Energy Committee reported with substitute Feb. 10. Committee substitute printed.
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Washington HB1764: This bill would stipulate new requirements for collective bargaining negotiations and arbitration between the University of Washington School of Medicine and residents and fellows who have the right to bargain collectively.
- Democratic sponsorship.
- House Appropriations Committee voted do pass second substitute bill Feb. 4. Referred to Rules 2 Review Feb. 7.
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Washington HB1806: This bill would give state legislative branch employees the right to bargain collectively.
- Democratic sponsorship.
- House Appropriations Committee voted do pass second substitute bill Feb. 4. Referred to Rules 2 Review Feb. 7.
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