Ninth Circuit Rejects Challenge to California Law That Prohibits Public Employers from Deterring or Discouraging Union Membership

On February 7, 2022, the Ninth Circuit Court of Appeals in Barke v. Banks affirmed the dismissal of claims brought by a group of individual local government elected officials challenging California Government Code Section 3550.  That law provides that a “public employer” shall not “deter or discourage” public employees from becoming or remaining union members or from authorizing membership dues deductions.  The plaintiffs brought a pre-enforcement suit against the members of California’s Public Employment Relations Board (PERB), alleging that the plaintiffs’ First Amendment rights were chilled because they feared Section 3550 would be enforced against them.

Altshuler Berzon LLP represented California Teachers Association, SEIU California State Council, the California Federation of Teachers, the California School Employees Association, and the California Labor Federation, as intervenor-defendants in both the district court and the Ninth Circuit, and presented oral argument on appeal.

The Ninth Circuit held that the plaintiffs had no standing to bring this pre-enforcement challenge because, as individual local government board members, they are not “public employers” subject to regulation under Section 3550.  The Court recognized that “section 3550 does not regulate Plaintiffs’ individual speech, and any restrictions the statute does impose on Plaintiffs’ ability to speak on behalf of their employers do not injure Plaintiffs’ constitutionally protected individual interests” because the First Amendment does not restrict the state from regulating the government speech of public employers or their agents when speaking on behalf of the government.

A copy of the Court’s opinion can be found here.