Last week, the Ninth Circuit Court of Appeals upheld a statute passed in 2017 that states, “[a] public employer shall not deter or discourage public employees or applicants…from becoming or remaining members of an employee organization.” (Barke, et al. v. Banks, et al., 9th Cir., Feb. 7, 2022, No. 20-56075). Several elected public officials challenged the law, California Government Code Section 3550, arguing that it chilled their rights to free speech by threatening to attribute their comments to the public employer. The court rejected the contention, accepting the acknowledgment of California’s Public Employment Relations Board that individual officials could not be sanctioned for speech in their personal capacity, and concluding that the plaintiffs lacked standing to sue as they had not suffered an injury by enforcement of the law against them. Depending on future application of Section 3550, challenges may be brought if personal comments on public policy are attributed to the public employers. The law originally was passed in anticipation of the U.S. Supreme Court decision banning compulsory union membership and agency fees for public sector employees in Janus v. AFSCME, 138 S.Ct. 2448 (2018).
Grievances alleging a violation of the statute might arise where the statute was expressly incorporated in a collective bargaining agreement or where the union alleges a violation of a broad “union rights” clause.
For further discussion see Union Station: Ninth Circuit panel upholds California law prohibiting public employers from discouraging union membership or dues authorizations, Ballotpedia News (2/11/2022)