On October 7, 2017, the Governor signed SB 285 which provides that, “A public employer shall not deter or discourage public employees from becoming or remaining members of an employee organization.” Currently, Government Code section 16645.6 provides that, “A public employer receiving state funds shall not use any of those funds to assist, promote, or deter union organizing.” According to the author of SB 285, the loophole in Government Code section 16645.6 is that it only prohibits discouraging the unionization of unrepresented employees, and not whether individual employees should join the union once it is established. SB 285 is meant to close this “loophole.”
- In my opinion, this law is another preemptive measure by organized labor to deal with the potential loss of agency fees depending on the outcome of the Janus case.
- PERB has jurisdiction to enforce this new law.
- My initial concern with SB 285 was how broadly “deter” and “discourage” would be interpreted. For example, if an employee asks human resources how he or she can discontinue union membership, can human resources respond truthfully, even if it has the effect of deterring or discouraging union membership? Can a public employer put out truthful information about the benefits and costs of union membership? For example, can an employer inform employees how much in dues are collected from members? However, looking at the legislative history, my assumption is that NLRB and PERB precedent in this area will continue to be applied; namely, that employers will continue to have the right to non-coercive freedom of speech.
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