Lawmakers give California unions new protections as Supreme Court ruling looms

June 22, 2018

For the second straight year, the California Teachers Association and other public employee unions have successfully used the state budget process to insert language that will help them recruit and hold on to their members.

In 2017, the CTA and other unions persuaded Gov. Jerry Brown and legislative leaders to include in the budget “trailer bill” the requirement that public employers, like school districts, provide unions with contact information for all employees at least every 120 days and to give their employee unions regular opportunities to meet and sign up new workers, with at least 10 days’ notice.

The Legislature uses trailer bills to implement key sections of the state budget. Brown has two weeks to sign the trailer bills into law.

Once this year’s trailer bill is approved, the new language in the 2018-19 budget will add further protections  — prohibiting government agencies from publicly disclosing information about the site and time of new employee orientations. And it would mandate that unions, not employers, collect forms workers use to join a union or cancel their membership. Employers also would also have to confer with unions before sending out any “mass communications” about the Janus decision or other issues related to union membership.

The amendments are part of public employee unions’ effort to minimize the potential loss of money and members in the wake of an impending U.S. Supreme Court ruling that would outlaw the mandatory “agency fees” government workers currently pay to unions that represent them. These fees cover the costs of contract negotiations and representation.

The decision in the case Janus v. American Federation of State County and Municipal Employees is expected next week.

Update:  The Janus ruling was issued on June 27, 2018. 

If the court does what most anticipate and rules against the unions, the CTA will immediately lose an estimated $7.7 million annually it now receives from teachers who did not join the union but still must pay about $650 in agency fees per year. CTA officials estimate that these non-members account for just under 10 percent of teachers represented by the union.

Without this guaranteed income, public employee unions would have to devote significant resources to retaining and recruiting voluntary members. The worry among union leaders is that the well-funded conservative activist organizations behind Janus and other similar cases will ramp up their efforts to convince teachers and other government workers to not join a union. The provisions in the trailer bill will make it more difficult for these groups to find out where the new employee orientations are held.

Claudia Briggs, a spokeswoman for the California Teachers Association, the state’s largest teachers’ union, disputes the notion that the amendments create new laws for the benefit of unions. Rather, she said, they are clarifying existing law regarding access to new employees that has been passed in a piecemeal fashion over the years.

“It just re-affirms, modernizes and aligns existing law to ensure employee privacy and safety at new employee orientations,” Briggs said. “They are discussing confidential personnel issues and there is no need to provide advance public notice on a human resources matter.”

While the specific procedures have varied depending on the agency, unions have historically played a role in new-employee orientations – doing things like explaining the labor contract and going over employee safety rules — and will continue to have that access, Briggs said.

Some First Amendment and open government advocates disagree with Briggs’ characterization of the new law, which began as AB 2970 authored by Assemblyman Jim Cooper, D-Elk Grove. They take issue with the unions being able to use closed-door budget negotiations between Gov. Jerry Brown and legislative leaders to bypass the open lawmaking process.

While Cooper’s bill cited safety concerns in keeping the locations secret, David Snyder, executive director of the First Amendment Coalition in California, said the real intent appears “to prevent political speech” by preventing other voices from being heard. The bill “smells bad, from a First Amendment perspective” and cites no evidence to justify safety concerns, he said.

Cooper’s office did not return emails or calls seeking comment on his bill.

Briggs said there is a long history of violence and intimidation directed at government employees, and mentioned one recent report in Orange County of new employees being confronted by anti-union activists at the place where an orientation session was held. She added that the new provisions are a response to “years of attacks from all directions” on workers, not just the Janus case.

“Here in California we can’t allow this rollback of worker rights and must ensure all workers have a strong voice on the job,” Briggs said.

John Gray, president of School Services of California, Inc., a consulting firm for K-12 districts, criticized legislative leaders using the state budget to avoid a full public vetting of Cooper’s bill.

“These restrictions and conditions are not related to or required for the implementation of the state budget,” he wrote in summary of the bill. “Unfortunately, this is not the first time that controversial policy changes have sidestepped public scrutiny and been implemented through the trailer bill process.”

The new provisions would take effect immediately after Brown signs the trailer bill. Other conditions would prohibit school districts and other public employers from discouraging new employees from signing up for a union or trying to convince employees to leave the union. Finally, it would require employers to confer with unions before sending out any information to workers about union membership.

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