Case Status: Loss

Jeffrey Barke et. al v. Eric Banks et al.

  • Federal Appellate Courts

CIR represented seven California elected officials in an effort stop the enforcement of Section 3550, a California law that prohibits public employers from criticizing public employee unions.

Section 3550 was enacted to prevent public employers from making statements that could discourage union membership.  California originally passed Section 3550 in 2017 in anticipation of the Supreme Court’s consideration of Friedrichs v. CTAThe state re-enacted the law in 2018 as “declaratory of existing law” in anticipation of the Janus v. AFSCME ruling that compulsory public employee union dues are unconstitutional.  California intended the law to counteract efforts to encourage public employees from leaving the union.

Section 3550 empowers union officials to file unfair labor practice charges with the Public Employment Relations Board (“PERB”) whenever a public official makes a statement that could “deter or discourage” union membership.  These charges may take years of litigation and tens of thousands of tax dollars to resolve.  Not surprisingly, school boards and local municipal governments have advised elected officials to steer clear of public comments on union-related issues to avoid triggering a complaint.

Meanwhile, public officials who support union policies or promote unionization and encourage their employees to become dues-paying union members face no risk that advocating for those positions will trigger an unfair labor practice charge.  This one-sided speech restriction deprives the public of important information and skews public debate to favor union policies.

Silencing Elected Officials

CIR and CPC represent seven public officials whose speech is being chilled by Section 3550.  These officials have documented numerous instances where the viewpoint discrimination and chilling effect of Section 3550 limited their ability to participate in public discussion over serious political issues:

  • A school board member reports that 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.
  • In one small community, a school board member reports that he feels that he may no longer may be able to engage in informal discussions with his constituents about matters that touch on union policies for fear of triggering a Section 3550 charge.
  • An elected official who ran on a platform of countering union demands for increases in salaries, pensions, and other benefits was troubled to learn that he might trigger a 3550 charge if he shares with his constituents and employees the basic fact that increased benefits for union employees would mean lower salaries for all. Nor can he mention the fact that union seniority policies tend to disfavor younger workers. Publicizing either fact might well deter or discourage union membership.
  • One official reports that he cannot inform employees that they have a First Amendment right to leave their union — or not to join one at all — without having to pay further mandatory dues.  Simply restating the Supreme Court’s 2018 decision in Janus v. AFSCME could trigger a charge of an unfair labor practice because it could “deter or discourage” individuals from membership.
  • Several elected officials report that Section 3550 makes it difficult to respond to constituents’ questions posed at regular public meetings since they cannot know in advance what questions their constituents will be ask. Once at the podium, they cannot consult with counsel to determine which answers the PERB might later construe as “deterring or discouraging” union membership.  As a result, they have been advised to avoid discussion of many issues relevant to their constituents’ questions.
  • The California School Boards Association (“CSBA”), a nonprofit education association representing the elected officials who govern public school districts and county offices of education, issued a legal advice letter counseling school Board members to be mindful of their communications with the public and school employees. It called for particular caution when discussing the Janus decision or making comments that one could construe as deterring or discouraging union participation

Why Section 3550 is Unconstitutional

The courts have long held that the federal and state governments may not favor or disfavor speech based on the point of view of the speaker.  Yet Section 3550 clearly punishes one side of the debate about union policies.  It imposes penalties on speech that the unions consider unfavorable while leaving untouched speech that is supportive of the unions.

It is also well settled that speech restrictions must make clear what speech is covered so that individuals can reasonably determine in advance what is out of bounds.  A vague or overbroad speech restriction inevitably chills permissible speech since individuals must err on the side of restraint.

Section 3550 is both vague and overbroad.  First, it is impossible for a public official to know in advance which statements might “deter or discourage” union membership.  A public official can trigger a penalty for a purely innocuous statement that the PERB later determines had a deterring or discouraging effect.  As a result, Section 3550 encourages public agencies to instruct elected officials to refrain from any statement that might possibly discourage union membership, including statements that the First Amendment clearly protects.

Second, Section 3550 is overbroad.  It is clear that the First Amendment protects some, perhaps much, speech that deters or discourages union membership.  Many important public issues concern union policies, and public officials have a legitimate, protected right under the First Amendment to discuss those issues fully and candidly without fear of legal retribution.

Section 3550 Silences Discussion of Important Issues of Public Concern

For example, Section 3550 prevents elected school officials from criticizing union positions on issues like tenure, class size, or school assignment policies — positions with which many employees disagree.  Each of these issues is the subject of longstanding debate among American educational professionals, yet full discussion of them might well deter or discourage some employees from joining or remaining in the union.

Govrenor Jerry Brown signed Section 3550 into law following the Supreme Court decision in Janus v. AFSCME.

In addition to school officials, Section 3550 interferes with the speech of elected officials of municipal governments. Discussions of the budgetary consequences of union pension policies — which are critical to the budgets of many local municipalities — could trigger an unfair labor practice complaint. While proponents of union positions have a free hand in the discussion, those who simply state facts such as that union pension demands mean fewer dollars for parks, libraries, and other local priorities could trigger legal scrutiny and possibly liability.

Section 3550 reaches speech well beyond bread and butter union issues like educational policy or pension costs.  It also chills speech on such issues as sanctuary city laws and even same-sex marriage — two areas where some large public employee unions have well-defined views.  A public official who merely publicizes union positions on these issues — positions likely controversial with many public employees — could  trigger a Section 3550 complaint for deterring or discouraging union membership.

Section 3550 Violates Well Accepted First Amendment Rights

The First Amendment accords a high level of protection to the speech of elected public officials, which is central to their representative and legislative duties.  Public officials have the responsibility to represent their constituents and to explain publicly what it is that they advocate.  Laws that constrain public officials’ ability to speak freely on issues of political concern, impair the democratic process, the public suffers as a result.  A law that burdens speech of elected officials based solely on the point of view expressed cannot survive First Amendment scrutiny.

Moreover, assuming the state has any legitimate interest in suppressing speech that is critical of public employee unions, it must draw any such law narrowly and make clear exactly what speech is off-limits.  Prohibiting any speech that “deters or discourages” union membership is either so vague as to invite arbitrary enforcement or so broad as to prohibit a wide range of clearly protected speech.

CIR filed the suit in the federal district court for the Southern District of California.  It asks the court to enjoin enforcement of the law on grounds that it violates the First and Fourteenth Amendments of the U.S. Constitution. A victory in Barke v. Banks will re-affirm First Amendment protections for the expression of differing views, particularly by elected officials.

Cooperating Counsel

  • David Schwarz, Sheppard Mullin LLC, Los Angeles

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