The law was originally passed in 2017 to prohibit state and local agencies and officials from preventing or discouraging workers from joining a union. After the U.S. Supreme Court ruled in 2018 that non-union government employees in about two dozen states, including California, could not be required to pay fees to unions for the costs of representing them in labor negotiations, state lawmakers added a ban on discouraging public workers from paying fees to unions.
The law was challenged by seven city council members and school officials in Southern California, who said it violated their freedom of speech. They said they had previously discussed labor-management issues at public hearings and election campaign appearances, but have refrained from mentioning unions or related subjects in public since 2017-18 for fear that their positions would be attributed to their employers, who could face penalties under the law.
But the Ninth U.S. Circuit Court of Appeals in San Francisco said the suit was based on speculation and was premature, at best, because the law does not apply to individuals like the seven public officials.
The state Public Employment Relations Board, which enforces the law, declared in a court filing that comments by an individual elected official at a campaign event "cannot reasonably be viewed as the speech of a public employer," the court said. It said the filing made the same disclaimer for remarks at a meeting of a public agency such as a school board, as long as other board members are present and the individual is not speaking for the entire board.
There is no evidence of a "credible threat" that the law would be enforced against the individuals who challenged it, the panel said in a 3-0 ruling that upheld a federal judge's dismissal of the suit. The court said they could file a new suit if they were actually faced with enforcement.
The panel consisted of Judges Consuelo Callahan, John Owens and Danielle Forrest.
A lawyer for the local officials said the ruling was disappointing but not a total defeat.
"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," said Terence Pell, president of the Center for Individual Rights. "The bad news is that elected officials can be subject to state investigation any time a union wants to file a complaint."
For example, said David Schwarz, another attorney for the local officials, last March the Public Employment Relations Board prohibited University of California regents or their representatives from "deterring or discouraging" UC employees or job applicants from joining a union or authorizing union dues or fees.
The officials were members of city councils in San Clemente and Mission Viejo, both in Orange County; the Capistrano Unified School District and the Rancho Santiago Commuity College District, also in Orange County; the Whittier Union High School District in Los Angeles County; the Ramona Unified School District in San Diego County, and the Rossmoor Community Services District in Orange County.
Matthew Murray, a lawyers for unions in the case, declined to comment on the ruling.
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