Post-Janus power shift of California’s private and public sector unions

Public sector unions in California enjoy an advantage over private sector unions in their ability to pursue their goals. This is because there are built-in statutory, constitutional and other legal protections that benefit public sector unions and employees. There are also differences in how a public sector employer operates compared to the private sector. In many regards, these protections are necessary and appropriate. However, there exists a corresponding impact on public sector employers' management rights. As private sector management rights grow, public sector employers are seeing a growing imbalance.

Consider the elected/appointed body of officials who are responsible for determining the fiscal policies and objectives of a public agency. In many jurisdictions, unions have direct access to appeal to the interests of those officials. Unions in these situations can exert not only political pressure, but also can use the democratic process to leverage change. Public sector unions, for example, can endorse measures and officials, and in many states (including California), can make records requests on almost any matter relating to the public's business and participate in noticed meetings and make public comment. This type of setting is simply not available to most private sector unions.

Public sector unions often benefit (rightfully) in being able to advocate for the rights and benefits that most employee protection laws grant, regardless of the size of the employer, which is not always the case in the private realm. Further, public sector employees enjoy state and federal constitutional protections while an employee even if they are acting as a private citizen on a matter of public concern. Consider, for example, that it is common for public sector employees to be afforded an array of due process and statutory job protections. It is often becoming the presumption that public sector employees have property interest rights to their job, while, by default, most private sector employees are at-will.

This disparity is not by accident, but a direct effect of a concerted strategy crossing local, state and even national efforts. Look at California's response to the U.S. Supreme Court's decision in Janus v. AFSCME, 138 S. Ct. 2448. In that 2018 decision, the court found that it was unconstitutional to require a public sector employee to pay union "fair share" fees as a condition of employment. The decision allowed public sector employees across the country to affirmatively "opt in" to paying union dues rather than becoming members by default. Within several hours of the decision, the California Legislature passed urgency legislation, and the governor signed into law Senate Bill 866. This bill added significant new limitations to what were long held to be management rights, including: (1) an automatic obligation for public employers to administer membership dues from employee wages; (2) employers losing the ability to oversee, manage and maintain union membership authorizations, including the process by which employees stop their union membership; (3) restrictions on an employer's ability to provide mass communications to inform its employees or applicants about the right to join or not join an employee organization; and (4) obligations on an employer's administrative abilities during new employee orientations, including requiring union speaking time and requiring that such meetings be confidential.

California also passed SB 846 in September 2018 (as urgency legislation), which protects public employers and unions from liability for any claims or actions involving the deduction or charging of fair-share fees from public employees. This bill was especially significant and timely considering that after Janus plaintiffs across the country filed lawsuits seeking monetary relief and recovery of previously collected fees, as well as attorney fees and expenses. Several circuit courts, including the 7th U.S. Circuit Court of Appeals in Janus v. AFSCME, 19-1553, and the 9th Circuit in Danielson v. Inslee, 2019 DJDAR 12037, have rejected these type of claims. Additionally, California passed SB 1085 in 2018, which requires employers to grant paid leaves of absence to employees to serve in union leadership positions, if requested by the union.

In contrast, employer rights have been strengthened in the private sector. Take, for example, the National Labor Relations Board, which enforces nation-wide laws governing private sector labor relations. In Caesars Entertainment d/b/a/ Rio All-Suites Hotel and Casino, 368 NLRB No. 143 (2019), the NLRB reestablished the right of an employer to restrict an employee organization's use of its email system for union business. In Boeing Company, 365 NLRB No. 154 (2017), the NLRB established a reasonableness standard that is more deferential when reviewing an employer's policies or handbook provisions. It is unlikely that these national decisions will be followed in California.

We appear to have a stark dichotomy regarding employer rights and obligations in California. Private sector employers are seeing an easing of restrictions that have inhibited their ability run their day-to-day business in the past years. Public sector agencies are having their management rights curtailed and obligations to employee organizations increased.

To a great extent, this divergence in management rights is due to the additional statutory and political pressures that public agencies must endure. 