Defendants File Motion to Dismiss in Gag Law Case

The defendants in Barke v. Banks — members of the Public Employment Relations Board — have filed a motion to dismiss CIR’s complaint, challenging California’s union gag law.  The defendants argue that the plaintiffs — seven city council and school board members — lack standing to challenge Section 3550, which prohibits public employers from making statements that “deter or discourage” union membership.

According to the defendants’ theory, only school boards and city councils are regulated by Section 3550.  Individual council and board members are not directly regulated.  The defendants therefore argue that individual members cannot challenge the constitutionality of Section 3550, even though the law prohibits them exercising their right to free speech.  CIR will respond to this motion in the coming weeks.

Meanwhile, five unions have filed a motion to intervene as defendants.  If granted, the unions will be parties in the case going forward.  To succeed, the unions must show that they have a unique interest in Section 3550 that the PERB cannot adequately defend.  Courts presume that government agencies are capable of defending the statutes with which they are entrusted, so the unions will need to provide strong evidence.

The unions’ attempt to intervene is noteworthy.  California law already protects public employees from any threats or coercion aimed at interfering with union membership.  It is difficult to imagine why unions would invest time and money on this lawsuit, unless they recognize that Section 3550 goes far beyond protecting employees from coercive practices. A hearing on the motion to intervene will be held May 8.

Photo: Courthouse for the Central District of California in Los Angeles