Supreme Court Grants Review on Whether Right to Privacy Prevents Release of Non-Member Employee Addresses to Union

County of Los Angeles v. Los Angeles County Employee Relations Commission (Supreme Court Case No. S191944) (Reviewed granted on 6/16/11)

I discussed this case in a couple of prior blog posts. (Click here and here for prior posts.) The Court of Appeal decision held that under California’s right to privacy, non-union members of a bargaining unit (i.e. agency fee payers) have a reasonable expectation of privacy that their personal information will remain confidential. The Court held that before the home addresses of non-union members can be released, the employer must provide these employees with notice and an opportunity to object to the disclosure of their personal information.

On June 16, 2011, the Supreme Court granted review of this case. The specific issues that the Court granted review on are:

(1) Under the state Constitution (Cal. Const., art. I, § 1), do the interests of non-union-member public employees in the privacy of their personal contact information outweigh the interests of the union representing their bargaining unit in obtaining that information in furtherance of its duties as a matter of labor law to provide fair and equal representation of union-member and non-union-member employees within the bargaining unit? (2) Did the Court of Appeal err in remanding to the trial court with directions to apply a specific notice procedure to protect such employees' privacy rights instead of permitting the parties to determine the proper procedure for doing so?

DPA Director Ron Yank to Speak at IRANC Luncheon on July 14

If you're going to be in Sacramento on July 14, 2011, please come hear Department of Personnel Administration (DPA) Director Ron Yank speak at a luncheon sponsored by the Industrial Relations Association of Northern California (IRANC). As DPA Director, Ron Yank is Governor Jerry Brown’s Chief Labor Negotiator. Prior to becoming DPA Director, Mr. Yank was a well-known labor lawyer at Carroll Burdick & McDonough LLP where he represented employees and unions in all areas labor relations.

Here are the details:

• Date: Thursday, July 14, 2011
• Time: 11:30 A.M. Registration & Networking; Noon – Lunch & Speaker; 1:00 P.M. Adjourn
• Location: Firehouse Restaurant, Golden Eagle Room, 1112 Second Street, Old Sacramento, CA 95814
• Menu: Choice of 1) Pork Tenderloin Puttanesca; 2) Salmon Nantua; or 3) French Onion Steak Sandwich
• Cost: Reservation by July 5 = $20.00 Members, $30.00 Non Members; After July 5 or at the Door = $25.00 Members, $35.00 Non Members

RSVP by Tuesday, July 5 to Marcia Mooney (916) 928-0399 or email mmooney@local39.org with lunch choice.  Make checks payable to IRANC and mail to 1017 L Street #159, Sacramento, CA 95814-3805.

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:

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.