SB 931: Prohibits Public Funds For “Union Avoidance” Campaigns

SB 931 was introduced by Senator Vargas on February 18, 2011 and amended on April 25, 2011. SB 931 would prohibit public agencies from using public funds to pay for what is sometimes euphemistically called a “union avoidance” campaign. Specifically, this bill would add language to EERA, HEERA, Dills, and the MMBA providing that:

“Public agencies shall not use public funds to pay outside consultants or legal advisors for the purpose of counseling the public employer about ways to minimize or deter the exercise of rights guaranteed under this chapter.”

The bill was amended on April 25th to clarify that:

“Nothing in this section shall be construed to apply to payments for representation of a public sector employer before any court, administrative agency, or tribunal of arbitration, or for payments for engaging in collective bargaining on behalf of the employer with respect to wages, hours, or other terms and conditions of employment.”

Comments:

SB 931 is the public sector progeny of AB 1889 which passed the Legislature and was signed by Governor Davis in 2000. AB 1889 prohibited government contractors receiving more than $50,000 in state funds (or $10,000 in certain situations) from using those funds “to assist, promote, or deter union organizing.” Private sector employers challenged the constitutionality of AB 1889 and the case eventually reached the United States Supreme Court. In Chamber of Commerce of U.S. v. Brown (2008) 554 U.S. 60, the Supreme Court held that the provisions of AB 1889 that applied to private sector employers (Gov. Code §§16645.2 and 16645.7) were invalid because they were preempted by the National Labor Relations Act.
One interesting note about AB1889 is that buried within the bill is a provision that applies to public employers. Specifically, Government Code section 16645.6 provides that: “(a) A public employer receiving state funds shall not use any of those funds to assist, promote, or deter union organizing. (b) Any public official who knowingly authorizes the use of state funds in violation of subdivision (a) shall be liable to the state for the amount of those funds.” In Chamber of Commerce of U.S. v. Brown, the Court only addressed the two provisions of AB 1889 that applied to private sector employers. Thus—as far as I can tell—Government Code section 16645.6 remains good law. However, because Government Code section 16645.6 is not incorporated into any of the acts administered by PERB, it cannot be enforced through PERB.
AB 931 goes beyond Government Code section 16645.6 by incorporating its provisions directly into EERA, HEERA, Dills, and the MMBA. Thus, a violation of AB 931 can be enforced by PERB.
However, AB 931 also goes beyond Government Code section 16645.6 in its scope. Section 16645.6 only applies to “state funds” received by public employers. In contrast, AB 931 applies to a public employer’s “public funds,” which presumably would mean all funds possessed by a public employer. In my opinion, the scope of AB 931 raises serious constitutional questions as applied to charter cities and counties and other public entities with constitutional spending authority. While the State can generally put restrictions on the use of its own money, it is a different thing to put restrictions on the use of someone else’s money. Not all money received by public employers are “state funds.” So to the extent a public employer receives non-State money, it’s not clear to me that the State can be restrictions on the use of those non-State funds in this manner.
According to the Legislative analysis, the sponsor of this bill is the American Federation of State, County and Municipal Employees. Other unions in support include the California Conference of Machinists and the California Nurses Association. Those in opposition include the California State Association of Counties and the League of California cities.