California’s New Union Gag Order Violates 1st Amendment
2020-07-15 · Guest: Terry Pell and Jeffrey Barke (Center for Individual Rights and School Board Member) · 52:18
California Section 3550 and Public Official Free Speech
Bob Zadek discusses California’s Section 3550, a statute that prohibits public officials from making statements that might “deter or discourage” union membership. Guests Terry Pell of the Center for Individual Rights and school board member Jeffrey Barke explain how this “gag order” violates the First Amendment rights of both officials and the citizens they serve. The conversation covers the fallout of the Supreme Court’s Janus decision, the extreme political demands of teachers’ unions, and the spread of “Labor Peace Agreements” in the private sector.
Topics: First Amendment, Free Speech, Public Sector Unions, Janus v. AFSCME, Section 3550, Labor Peace Agreements, California Law, School Boards, Center for Individual Rights
Speakers:
- Bob Zadek – Host
- Jeffrey Barke – Plaintiff and School Board Member, Los Alamitos Unified School District
- Terry Pell – President, Center for Individual Rights (CIR)
12 Angry Men and the Right to Speak [00:15]
Bob Zadek: Good morning, everyone. Welcome to The Bob Zadek Show, the longest-running live libertarian talk radio show in all of radio. Thank you so much for listening this Sunday morning. We are, this morning and always, the show of ideas, never once the show of attitude.
As a first for my show this morning, I’d like to start off with a movie review of sorts. One of the greatest American movies ever made, in my opinion, is a movie called 12 Angry Men, made in the ’50s. It was made by Henry Fonda; he funded it. It had a budget of $700,000. It was, if you want to find one movie that is supportive and respectful of American values, besides being a beautifully written movie, 12 Angry Men is the movie to watch.
The whole movie takes place in a jury room, and the jurors—I’m not going to go into the plot; the plot isn’t much, it’s the principle that’s important. In the movie, we have 12 jurors who are asked to decide the fate of a minority young man who is accused of committing a murder. And the jurors are a wonderful cross-section of American—it happened to be all male, but that’s besides the point—of American men, various walks of life.
And when the movie starts, the jurors are pretty convinced that the murder was done. And they take a first vote, and it’s 11 to 1 in favor of conviction, which would have been death to the alleged perpetrator. A discussion starts, and there’s a lot of bias in the movie. There are some of the characters who are strongly biased against the minority alleged perpetrator. Others are more neutral, but it’s 11 to 1.
And when some of the jurors start to express their opinion as to why they think, “Well, let’s go slow, let’s look at the evidence,” the more bigoted of the jurors start to say, “No, no, no, come on, we all know he’s guilty,” in a very aggressive way. And some of the jurors in the middle—one in particular, a kind of a meek middle-aged man—says the words which are the theme for this morning’s show. He speaks up, kind of meekly, but he speaks up and he says to the bigot, “No, no. Let this man speak. I want to hear. Let this man speak.”
And I won’t be a spoiler; I won’t tell you the plot—you probably can guess—but it’s those words, “Let this man speak,” that are the theme of this morning’s show. Implicit in that request, “Let this person speak,” implicit in that is the need for fairness, for democracy, for civilization to go forward. Speakers must have the right to speak, and far more importantly to this morning’s show, listeners have a right to learn what the speaker wants to say. Once we start denying the speaker the right to speak and the listener the right to listen and the right to have access to the information, we’re doomed.
Introduction to Section 3550 [05:41]
Bob Zadek: This show is about government preventing speakers from the right to speak about important issues and the listeners, the voters, the citizens, the right to hear. With that introduction, I’m delighted and indeed proud to welcome to the show this morning Terry Pell and Jeffrey Barke. They will tell us a story of what is going on in the American labor movement, the result of which is existing and, dare I say, growing body of law that prevents public officials, employees of the government, to speak about issues that they think the voters must know about. And I really mean prevent them from speaking.
In this case, the issue is the organization of unions or the relationship between public service workers and public service unions. We will learn about a trend which is going on in California and throughout the country, and we will learn about something even more sinister, or perhaps as sinister, a phrase you know nothing about, but you will shortly: LPA, Labor Peace Agreements. If ever there was a misnomer, it is that. With that weighty introduction, I’m delighted to welcome Terry Pell and Jeffrey Barke. Jeff and Terry, good morning.
Jeffrey Barke: Good morning, Bob.
Terry Pell: Good morning, Bob.
Bob Zadek: Now, Jeff, the subject this morning is going to sound sort of legal in nature. We’re going to talk about—we’re going to start, but go well beyond it—we’re going to start a California piece of California legislation that was effective, if I’m not mistaken, on January 1st, 2020. No, scratch that. We are talking about legislation that was enacted in 2017 while the Janus case was working its way through the courts.
We’ve discussed the Janus case on the show in—we had Rebecca Friedrichs as a guest a bunch of years ago. I invite our listeners to listen to that show if you’re interested in the subject matter this morning. But we’re not talking about that. We are talking about the relationship between unions, public service unions, and the government, and what is being done to stifle speech about whether public service workers should be unionized. So, Jeff, if you will, I’ll ask you and Terry to tell us the story of—start with Janus, although my listeners, I suspect, know about Janus, but just give them the one or two sentence headline about the Janus case, which the Supreme Court recently decided—not in this past term, but the term before that—and tell us how that fits in with California AB Section 3550 and tell us—introduce us to this morning’s topic, if you would.
Jeffrey Barke: Oh, absolutely. Well, first of all, Bob, thank you so much for having me on. And most importantly, thank you from my wife and I because we now have a movie to watch on Netflix tonight, and that will be 12 Angry Men. I don’t think I’ve seen that before, and I look forward to watching it.
Okay, so the Janus case—Mark Janus was a plaintiff, and this case went all the way to the Supreme Court. And the end result was that it ended with that public employees that are in unions, as a condition of employment, was no longer required to join a union. And the reason why I’m involved is because I was an elected school board member for 12 years with Los Alamitos Unified School District. And like every school district in Orange County and in California—there’s over 1,000 independent school districts—with very rare exception, they’re all unionized.
And so what this Janus case did that the Supreme Court ruled in June of 2018 is it said if you’re a member of the union, you no longer have to pay union dues as a condition of being an employee of that particular school district. Now, that’s fine, and we celebrated that. We thought it was the right decision. But at the same time, a section was passed by the California legislature, signed into law, and that’s the name 3550. And basically what it said is elected officials need to tread very lightly. You’re not allowed to have a conversation that could potentially deter or discourage a member from joining the union.
Janus as a Free Speech Case [10:30]
Bob Zadek: Now, Jeff, I just want to interrupt for a second just to add a little bit of context. It sounds like the Janus case was simply an economic case—you didn’t have to pay union dues, you couldn’t be compelled to pay union dues. It was really a free speech case because the Supreme Court has long held that if you’re compelled to give money to support an organization that is expressing a political view which you may not agree with, that compelled contribution in effect compels you to speak through the union against your will. And compelled speech is exactly as prohibited as is denial of speech. So the Janus case is not a dues case; it is a free speech case. And that’s why it was so important, and that’s why it went to the Supreme Court. Sorry, Jeff, I just wanted to make sure our friends out there could follow that.
Jeffrey Barke: No, excellent, Bob. And that’s a great background for this. I agree with you completely that it was about free speech. The union is free to use their union dues for political speech, and employees now have the right to opt in or not to that participation by their dollars to that free speech. And that’s really what the Janus case was about.
And then ultimately the gag order, if you will, that was put on by the legislature, the 3550, that said if you’re an elected official, you no longer have the right to be able to speak freely about the Janus case or about any other union activity because if you do, you could be hit with an unfair labor practice lawsuit. Whatever that is, I’m not an attorney. None of my board members were attorneys. But it seemed onerous that if I bump into somebody at the supermarket and we have a conversation and I’m an elected board member, that if I got to be careful what I say or I might be sued, and the board might be sued, and the district might be sued for an unfair labor practice.
And then we would be using our very limited general funds to now defend a lawsuit when I’m not an attorney and now I’m being prohibited from speaking freely to my constituents, many of whom are teachers in our district and employees in our district. So I have to now be careful about my free speech or I could end up with a lawsuit against my district for something that I said. And I don’t think that’s right. I can’t imagine anybody believes that the government—and in this case, the state government—should be allowed to tell me as an elected official what I can say or not say to my constituents. That’s just wrong, and that’s why I’m part of this suit moving forward.
The Right to Listen [13:42]
Bob Zadek: Now, just to put this in—really to drill down to a level everybody can empathize with and understand. So here you are, you are a—I’ll say volunteer, if you get paid a small stipend or whatever, it’s irrelevant. You are acting as a volunteer, simply doing what citizens ought to be expected to do, which is serve your community. And in this case, you’re serving your community by being on a school board. But of course, this could be any governmental function at the lowest level or the highest level.
So here you are, and your job is to do the best job of voting intelligently in the interest of your constituents. And if an issue comes up, the first thing you want to do is you want your constituents to understand the issue and understand why you are taking the position, so your constituents can say, “Well, we don’t agree, Jeff, get out of here,” and vote you out of office, or “You’re right on, Jeff, we support you,” and at election time, if you want to run for re-election, we will support your re-election.
So this is about getting information to the voters. And as I said at the outset, while yes, it is Jeff and his tens of thousands, probably hundreds of thousands of school board members and millions if you include all the other governmental functions, this is about, on the one hand, Jeff being able to speak without fear of terrible repercussions—in this case for his school district, which is a lawsuit started by the union. But more importantly, more importantly—and I say more importantly, even though I am quite respectful of Jeff as a speaker, Jeff’s right to speak—and this is not depriving him the right; this is in effect creating consequences that discourage him from speaking.
But I’m much more concerned, and the reason this is a big issue, not just an issue about school board members, because voters have to have information. Imagine if you are required—if you want to vote and you are denied access to one side of an argument you’re voting on. You are denied access. So now it’s not the freedom to speak; it is the freedom to listen. And everybody needs to be able to listen and have access to information. So, Jeff, tell now—this seems like, if you read the words as many of these pieces of legislation are, it seems kind of neutral. It seems like if one would read the statute, one would say with a shrug, “Well, what’s the big deal? So you can’t discourage union membership.” Now, tell us how in the day-to-day life, the minutiae, the waiting online at the supermarket, the visiting with friends on a Saturday afternoon, tell us how school board—you specifically, you and Terry explained—you specifically or the hundreds of thousands of school board members, if this statute were the law of the land, how would your day-to-day interactions with your friends, your neighbors, your constituents be affected by this legislation?
The Doctor/Patient Analogy [17:18]
Jeffrey Barke: Well, that’s a good question. And Bob, it is the law of the land, at least in California. You know, I’m a physician, that’s what I do for a living. And imagine this—I like to put this in terms of my practice. So imagine that you came in, Bob, and we were talking about a prescription that I was going to give you for a particular condition. And when I do that, normally I would review what are the benefits of this medication and what are the potential side effects of this medication.
But only now under this law, if we use the medical equivalent, I would be allowed to tell you what the benefits of this medication are, but I would be prohibited from telling you about the potential side effects and downside of the medication. So similarly with this 3550 ruling about the Janus law, I could have a conversation about what the upside of being in a union and the various functions of the union and what they pay for and what they don’t pay for, but I would not be able to say, “Hey, there are consequences for joining and union participation.” I wouldn’t be allowed to do that. And that I believe is an infringement of my free speech.
Now, when I’m at the—as an elected member of my community, most of the time—I mean, we have formal board meetings a couple times a month, but most of my conversation with my constituents aren’t in the formality of a board meeting. It’s being out and about in the community. I’ll go to the supermarket and bump into somebody that will have a question about the ongoing activities of the district—what are we building, how are we spending money, how are we hiring, and so forth. And now I have to be extra careful because I don’t want to invoke some sort of unfair labor practice lawsuit, whatever that is. And I’m worried.
And we were told by counsel as part of our school board that we could not communicate with our teachers and classified staff and so forth because we were worried that we would be sued. And we didn’t have the funds and didn’t want to use general fund money—we want that to go to the kids, not to the lawyers. And so we were advised not to have a conversation with our employees about their rights under Janus. And unfortunately, I think that’s the wrong thing for this 3550 to do. You know, we’ve got coronavirus going on right now, and it’s like putting a mask, if you will, on the board members and other elected officials so their speech can’t be heard. And I don’t think that’s right.
Terry Pell and the Center for Individual Rights [20:47]
Bob Zadek: Now, Terry is—let me just introduce you, Terry. Terry is an attorney and he is counsel for Jeff in this lawsuit challenging 3550 in California. The lawsuit is in its early stages right now; it’s in the procedural stage. Terry is president of CIR, the Center for Individual Rights, which is a nonprofit public interest law firm. And we on this show, we love and strongly support and do not pass up any opportunity to thank CIR and their counterparts around the country, these public interest law firms that are working so gosh-darn hard to protect our rights. These are rights that cannot be protected by individuals; they have to be protected by groups such as CIR. So I want to start—I want to do a shout-out at the beginning to Terry for CIR’s work in general and this case in particular.
Now, Terry, without intruding on attorney-client privileged information, of which I am of course quite respectful, but tell us the kind of advice, if you were counsel to a school board, what would you have to tell school board members when the school board is confronted with an attempt by a union to unionize the teachers or the support staff or the admin staff in the school district? And now we have a bunch of volunteer citizen school board members who have to decide what should be our position with the union. And of course, their constituents have never had an attempt at unionization, so they don’t know the pros and cons. So here we have citizens hungry for information, school board members who have studied the issue and want to share what they have learned with their constituents. Terry, what advice would you, as you play-act as counsel for a hypothetical school board or as counsel for Jeff’s school board, what advice are you compelled to give them in terms of the everyday human-to-human interaction discussing this issue which is new to a school district?
”Deter or Discourage” [23:14]
Terry Pell: Well, as a lawyer, the first thing I would do is read the language of 3550, which says that elected board members, public employers, cannot say anything that would, quote, “deter or discourage” someone from union membership. So as a lawyer, I would look at that and I’d say, “Well, what could deter or discourage somebody from joining the union?” And I would quickly realize that almost anything could deter or discourage someone.
Just telling someone that they no longer are compelled to pay union dues, as the Janus decision ruled, could deter or discourage somebody from joining the union. If you think about it for a second, if you tell somebody they don’t have to pay these dues, they might decide, “Okay, well, I’m going to leave the union and stop paying the dues.” So even factual statements about a ruling of the Supreme Court are off-limits here. And if I were an attorney, I would advise the members of my board, or the board I was advising, to refrain from saying anything that might cast the union in a bad light or might suggest to someone that maybe they don’t want to be a member of the union or suggest that the union’s involved in some sort of controversial position.
For example, the California Teachers Association supports the sanctuary city laws. Well, if the members of the board I was advising were to point that fact out, it might deter or discourage some teachers and some other employees from joining the union. So the problem here is that the law is so vague, the only reasonable advice an attorney could give to elected officials is to refrain from saying anything. And what this does, as Jeff explained, is create a legal cloud over anyone who wants to even criticize the union along factual lines. Just saying what the union’s position is could create liability for the school.
But on the other hand, elected officials who support the union are completely free to say whatever they want without having to look over their shoulder or ask for legal advice or think twice about what they’re saying. So essentially there’s a double standard here. If you favor the union, you’re free to say whatever you want. If you disagree with the union or want to point out some of the problems with the union’s policies, you have to be very careful. And the odds are your board attorney’s going to tell you to just be quiet because it’s just not worth the tens of thousands of dollars it would cost to defend against an unfair labor practice.
The Imbalance of Power [25:52]
Bob Zadek: Now, what’s interesting is—and it’s of direct relevance this morning—is we all know, of course, there’s a battle around the country and great confusion as to whether to reopen schools given the pandemic in the fall. That is an ongoing debate in the public sphere. There’s enormous confusion, and parents and teachers and elected officials are trying to figure out what to do. Okay, that’s background.
In Los Angeles, just in the past couple of days, the—one of the most powerful teachers’ unions in the country has announced that they will not go back and teach in the fall unless the school district agreed to—and here it comes—a list of demands, which include equal pay, which includes Medicare for All, which includes income equality, which includes adherence to the Green New Deal. Yes, my friends, that’s the union’s demands. Now, imagine being in a school district in Los Angeles, and that’s what you are asked to do, and you cannot even speak out in opposition.
Look at the profound, profound imbalance in power given by statute. So we have the unions who have gotten legislation in effect prohibiting—now, it doesn’t say you cannot say something, but as Jeff explained so clearly, Jeff as a school board member is allowed to say it, but he better not show up at the next school board meeting because his school board members are going to say, “What in the world have you done? We are getting sued because of something you said.” So Jeff, being mindful of the budget and doesn’t want to be a pariah and doesn’t want to harm the school district just so he can say what he believes, he keeps quiet.
So here you are in the second biggest school district in the country. The union wants Green New Deal, economic equality in Afghanistan, and you can’t even speak out in opposition to it because your school district will get sued. It is—and one has to ask, one must ask, anybody who wants to stifle free speech, the automatic question has to be: what are they afraid of? I will say my point of view, they will say theirs, and the voters will decide. It’s “the voters will decide.” That’s what the unions and that’s what anybody who seeks to stifle free speech is afraid of. So Terry, am I getting too alarmist, or is that pretty much what’s going on now in jurisdictions that enact these, as you appropriately labeled it, gag bills?
Factual Debate vs. Coercion [29:10]
Terry Pell: No, I think you’re exactly right. I mean, look, there have been laws on the books for many, many years that prohibit public employers from employing threats or coercion against employees who might want to join the union. Everybody accepts that. That’s been the law for a long time. But the union isn’t really afraid of actual threats and coercion anymore. What they’re now afraid of is speech. They’re afraid of an honest debate. They’re afraid of facts being able to be reported that might put the union in a bad light.
So they’ve gone beyond ending threats or coercive behavior; now they’re trying to end speech that’s critical of the union. And it brings—it makes it difficult to discuss a wide range of issues. The examples you just mentioned are clear examples where a public official in a school district that’s trying to reopen and is faced with union demands like the ones you just mentioned is under an obligation to tell the constituents what’s at stake here and what the union is proposing and to point out the costs of the union’s demands on the education of the students in his district. Yet if he does that, he could trigger an unfair labor practice.
So essentially one side of this debate, a very important debate that requires decisions now and requires the public to be informed right now about what the union is saying, one side of the debate is shut down. And the First Amendment does not permit the government to play favorites among viewpoints. The government cannot pass—I mean, this is a well-accepted fundamental principle of the First Amendment. The government cannot pass laws that favor one side of the debate or another. The government has to be neutral, and this law violates the principle of viewpoint neutrality. And that’s what’s so, I think, threatening and alarming about it.
The Impact on Voters [31:13]
Bob Zadek: And what’s interesting is how one side of the political debate has used control of free speech to put their thumb on the scales. Jeff, who is a practicing physician, mentioned in his hypothetical that he is a doctor, or he asked us to imagine a doctor not being allowed to explain to a patient the downside of a prescribed medication or procedure. Well, that actually is happening. Some of you out there may recall that I believe it was Florida that compelled doctors to counsel patients—this is compelled speech—to counsel patients and to inquire about how guns are stored in your home and gun use. A Second Amendment issue, but those who propose to limit guns, use of guns, went to the physicians.
Attorneys—there is a movement afoot to require attorneys, in the sanctity of the attorney-client privilege, to now if they—and I’m going to be very general because I don’t have the legislation in front of me—but attorneys are now required in certain circumstances to violate the attorney-client relationship and to go to law enforcement if their clients are engaging or are considering engaging in bad acts, criminal acts. Now, that has always been the law to some degree if another person’s life is in danger or the client’s life is in danger, but never been extended to economic crimes before. So again, that is compelled speech.
So those people who would seek to tear down some of our basic values have realized that limiting free speech is a wonderful tool in their toolbox. And this is yet another example of not allowing all points of view to get into the marketplace so voters can decide, because voters know best. But rather to deny voters the information, which means legislature do not trust voters. It’s the same theme over and over again. Us voters cannot be trusted with the information that our elected officials would otherwise want to share. So Jeff, as a school board member, has studied the issue more, wants to share what he has learned, and he’s allowed to be wrong—he’s expressing an opinion. But Jeff, you sit there and you must bite your lips, if you will, and not share objective information that you believe to be true with your constituents. So it is your constituents, is it not, that are the ultimate victims of this insidious legislation?
UTLA’s Political Demands [34:23]
Jeffrey Barke: Well, ultimately my constituents have to decide whether they want me re-elected or elected in the first place. And as a voter, I make those decisions based on the policies and the information that I get from the people that I’m voting for and listen to them talk about the issues and so forth. And in this case, I’m not really allowed to talk about these issues. I may have strong opinions that are pro or anti-union, but I don’t have the ability to actually share truthfully my opinion so my constituents can make a decision.
And you know, UTLA, the union that represents the teachers in Los Angeles—LA is the second largest school district in the country—their demands, and you left this out and I think it’s important, their demands also, by the way, in order to open up schools regarding COVID—and this has nothing to do with COVID-19—is they want the police defunded and they want an elimination of all charter schools. Neither of those things have anything to do with COVID-19.
So as a school board member, my constituents to elect me and re-elect me, and the only way I can do that is share my opinion, share my perspective. And this 3550 law, if you will, prevents me from doing that. And if I do share my opinion and it’s perceived as anything that would deter or discourage somebody from joining the union, then we could be sued as a board, as a district. And we were advised basically to shut up. Don’t make any comments about the Janus decision. Be extraordinarily careful about what you say, or we could invoke an unfair labor practice lawsuit, and that could be detrimental and devastating to our district because we’re on a tight budget. The last thing we need is to start paying attorneys as opposed to putting that money in the classrooms to benefit the children. So I hope that makes sense, Bob.
Practical Examples of Silenced Speech [36:22]
Bob Zadek: It does. Now, give us some everyday examples of the kind of routine, just doing your job kind of decisions you would need to make and opinions you would need to share with your constituents. Just everyday stuff, no low drama, the kind of decisions that now you must keep your opinion to yourself. What are the types of decisions? Help us understand, help us get into the deliberations of a school board member and show us how basic you are denied or under a threat of a lawsuit, you are denied the ability to do your job effectively.
Jeffrey Barke: Excellent. So there’s a Target shopping center, Target store right up the street. My wife and I walk up there and go shopping there all the time. Common practice that while I’m wandering up and down the aisles, I’ll bump into a teacher that lives in our district, a bus driver that lives in our district, or a parent that lives in our district, and we’ll have a conversation. “Tell me about how you’re rebuilding a new gym. What are you doing from a funding standpoint for STEM—science, technology, engineering, and math? How are you guys utilizing a teacher here or there? Ratios in the classroom that affect our budgets.”
All those things I have to be extra careful because budgetary decisions are supported or not supported by the powerful union. The union will lobby for us to do X, Y, or Z with our money—give teachers raises above and beyond the automatic raises that they get by working an extra year, by getting a degree, the so-called step-and-column automatic raises. We have negotiations with our union about pay and benefit. And monies that go to employees for pay and benefits are monies that we don’t have to do other things with.
So as I’m discussing with teachers and parents and so forth, it inevitably comes up. If we give a 5% raise to our teachers, that’s 5% less money in our budget that we can do something else with. And those are conversations we have all the time. Conversations now in the back of my mind, I’ve got Terry or not Terry specifically, but the board attorney chiming in saying, “Barke, be careful, Barke, be careful, unfair labor practice.” I’m not an attorney. I don’t actually even know what that means, an unfair labor practice. But I’m told, because we had this discussion by the board, by the district, by our attorneys: “You guys need to be really careful. Don’t say anything that has anything to do with Janus. Don’t say anything that could”—I don’t even know what this means—“deter or discourage.” I don’t know what that means actually.
So now I’m thinking, “Oh my gosh, I have to be careful when I’m talking about the negotiations and are we going to give a raise and how are we going to spend our money,” because if there’s a union person around that hears that, I may be now slapped with a lawsuit. The district would be, and now we’re defending a lawsuit rather than defending our children and helping with their education. So I hope that makes sense, Bob.
The Lawsuit Against PERB [39:48]
Bob Zadek: It does. Now, Terry, tell us a bit about the lawsuit that you have brought. What is the theory of your lawsuit? And as an aside, I was sort of smiling when Jeff was speaking—you couldn’t have heard me, smiles are not very noisy on radio—but I was wondering to myself, and I’ll ask you, Terry, to speak to this, whether or not Jeff as a school board—as a hypothetical school board member—now whether Jeff could even tell a constituent about 3550 and what it does, whether he is denied even to mention those four numbers in sequence and what that bill does. So tell us about the lawsuit because it’s an interesting theory. And tell us about who was the defendant in the lawsuit and how did the unions react, because there’s an interesting story involved there.
Terry Pell: Sure. Well, we filed suit in February against the Public Employment Relations Board, which is the state agency that’s charged by law with enforcing 3550. PERB, as it’s called, is the agency that conducts these unfair labor practice investigations and decides as an administrative agency whether an unfair labor practice has occurred and then assesses a fine to the school district. So we sued PERB.
The theory of the lawsuit is that 3550 is so vague and difficult to apply in practice that it creates a chilling effect on speech that is protected by the First Amendment. And in our view, the speech of an elected representative who’s involved in political debate on important public policy issues deserves the highest level of First Amendment protection. And traditionally, that’s the way the courts have looked at speech of elected officials. So that’s what we’re saying here. You can’t hinder an elected official from expressing one point of view under the First Amendment.
So the theory is clear; it’s a federal First Amendment case. We brought suit. About a month later, five unions moved to intervene in the suit, and the judge agreed with that. And then about three weeks after that, the California Attorney General moved to intervene in the suit. What this means is originally the suit was between two parties—our plaintiffs and the defendant PERB. Now it involves our party, our plaintiffs, our clients, only now we’re fighting not only the Attorney General and PERB but five unions.
So what this tells us is that we, you know, hit a sensitive spot here. The unions have a lot invested in this law. They’re willing to spend a lot of money to defend it. And even the State Attorney General doesn’t—you know, there’s some disagreement among the state about who in the state, which state agency is best able to defend this law. Normally, you’re not allowed to intervene in a suit unless you can show the judge that your interests are not properly represented by the named defendant. So here we have this oddity where the state is saying that it doesn’t think its interests are adequately represented by PERB, and it wants the Attorney General to be an additional party in the case. So I guess there’s some confusion among the state agencies about what 3550 means and how best to defend it, which really supports our original view that 3550 is inherently vague. Not only do our clients have difficulty understanding what it means, but the state has some difficulty understanding what it means and how to defend it. So at any rate, we have a number of additional parties in the case now, and the judge has before her our motion for a preliminary injunction and the defendants’ motion to dismiss the case. So these are—we’re at a preliminary stage here. Once she decides those motions, then we will go into discovery and likely have a trial in 2021. So that’s where we are with the case.
Factual Information as “Unfair” [44:06]
Bob Zadek: My observations, Terry, my observations are—and they are many—number one, look at how much money the state is spending to protect their right to stifle speech. It’s incredible. Citizens of California are underwriting through tax dollars a bill which does nothing other than prevent people from speaking and, more importantly, prevent voters from listening, from getting access to information. Nothing could be more obscene than that.
Number two, the penalty, if you will, the adverse consequence of a school board or other governmental official—but we happen to be speaking about school boards—of a school board speaking is the adverse effects are an unfair labor practice. Unfair? What is unfair about voicing an opinion? How could that—how could that conceivably be unfair? Yet that is what the complaint will be: that it was unfair for Jeff to tell his neighbor about the consequences of union membership in his school district. Unfair to who? Unfair to one party, the unions, who are trying to persuade workers to join. How could it be unfair? You’re right, it hurts their efforts, but fair? Unfair? It’s inconceivable to me how you could even use that word. But am I missing something, Terry, or is the claim—because that’s what the cause of action would be—the claim is that somehow voicing an opinion on a subject which you have information and you must share with your constituents, that act alone, sharing an opinion, is unfair? Is that exactly what’s going on?
Terry Pell: No, that is exactly what’s going on. And I’ll give you one very clear example of how absurd this can get. PERB did investigate an unfair labor practice against one school where the school had given out factual information about the Janus decision. The administrative law judge agreed that the information was correct and that it was factual and that it was relevant, but said that the mere fact that school officials gave this information out was unfair to the union because it might have suggested to employees that they should go to the school officials to get information about Janus rather than to union officials. So the idea here is that it’s unfair to the union to have somebody else, some other government agency or public employer or elected official, talking about Janus rather than the union talking about Janus. That’s somehow unfair. Employees should only have one source of information about Janus, namely the union. So that’s what one administrative law judge thinks is unfair.
Labor Peace Agreements [47:26]
Bob Zadek: In preparing for this show this morning, as we regretfully are running out of time, in preparing for this show this morning, Terry and Jeff introduced me to a concept—maybe this is a confession—that I didn’t know much about, but I’m saying, “My goodness, I certainly should have.” And if you can in a couple of minutes, Terry, tell us about the related issue—and the reason I say related is the subject this morning is public officials being allowed to speak, in this case offer an opinion about unionization. So it’s in the public sphere. But the topic writ broad of gag orders and the like gets into the private sector as well through something I learned about called LPA, Labor Peace Agreements. Now, if you can in a couple of minutes, Terry, tell our friends out there about something I knew nothing about: labor peace. What a strange title. Labor Peace Agreements and how they affect the private sector and how this is a growing trend, at least in the union strongholds of the Northeast and the West Coast.
Terry Pell: Okay, sure. Well, let’s say you’re a developer and you want to develop a certain parcel of land that’s owned by a municipality. Well, in some municipalities, there’s a law that requires that before you can develop that land—I mean, you compete for it through a bidding process and all of that—but one of the legal requirements for the developer that gets the bid is that they, within a certain period of time, have to enter into a Labor Peace Agreement with whatever union is going to cover the employees of the project once it’s up and running.
And so if you’re building a theater or, you know, a convention center or something like that, there’s going to be unionized employees working at it. Well, to even build that, you have to agree to enter into a Labor Peace Agreement. And that basically means you have to find a union and negotiate a Labor Peace Agreement. And one of the provisions of these Labor Peace Agreements is that the employer agrees to remain, quote-unquote, “neutral” in any future effort to unionize the employees.
So a developer, as a condition of developing this thing, has to agree in advance to, quote, “remain neutral” to the union’s later efforts to unionize his or her employees. And what neutral means here is just like what 3550 means: the employer has to give up his First Amendment right to express his or her views about the union and just step into the background and not say anything that would interfere with the union’s efforts to organize the employees. And since these are private agreements, they vary quite a bit, but they very often tend to have these Labor Peace Agreements in them. These are essentially agreements that the developer has his hands tied behind his back. I mean, he has to enter into such an agreement to get his project to go forward. So it’s not freely negotiated; he’s got a gun to his head essentially. He’s got to accept the union’s demands, whatever they are, for the Labor Peace Agreement in order to get the project to move forward. So this is another example of the union trying to control speech. It’s working through a different means. And as you mentioned, these kinds of agreements are already in place in five or six states on both the West Coast and the East Coast, but this is a growing feature of labor law. More and more states are considering imposing a Labor Peace Agreement requirement on development projects in their state.
Bob Zadek: Terry, I hate to interrupt. We’re going to run out of time. I just want to thank Terry and Jeff for their work. Good luck in the lawsuit, and commend all of my friends out there to please listen, follow, and support the Center for Individual Rights, an important nonprofit public interest—that means us, the public—public interest law firm. Thanks a lot, guys, for all of your good work. Good luck in the litigation, and please, now more than ever, don’t give up the fight. Thanks a lot to my friends out there. I’ll be back again next Sunday. Have a good rest of the weekend. Thanks, Terry. Thanks, Jeff.
Terry Pell: Thank you, Bob. Appreciate it.