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In New Lawsuit, Foundation Represents Homecare Worker Who Seeks To Strike Down Washington's "Opt-Out" Scheme

In New Lawsuit, Foundation Represents Homecare Worker Who Seeks To Strike Down Washington's "Opt-Out" Scheme

October 22, 2015

What do unions do when their cash flows are challenged by workers' constitutional rights? They simply find more devious ways to violate those rights.

SEIU 775, the Washington political juggernaut that rakes in tens of millions of dollars in annual dues from care providers making approximately $11 per hour, made the economically shrewd yet morally stunted decision last September to institute a scheme by which thousands of workers' pay union dues automatically unless they've gone through the process of formally "opting out."

The Legal Situation

The collective bargaining agreements negotiated by SEIU 775 and the state of Washington have always contained "union security" provisions that require every worker covered by the contract to either join or financially support the union or lose their jobs.

For homecare workers, this meant that if a provider failed to financially support a union, he or she became ineligible to continue receiving welfare payments from the state. In turn, SEIU 775 was able to extort union dues from providers for a decade by threatening to remove their financial security.

However, in June 2014, the U.S. Supreme Court ruled in Harris v. Quinn that care providers, like those represented by SEIU 775, cannot be forced to financially support a union. SEIU 775 represents over 30,000 such providers—and that representation produces approximately $25 million in annual dues revenue.

The Current Circumstances

Now, common sense and decency tell us that in response to such a Supreme Court decision, a union like SEIU should simply have stopped taking dues from the thousands of providers who never joined the union or authorized dues deductions. But SEIU 775's instincts are anything but common or decent. In predictably calculated and unethical fashion, the union simply altered the dues-capture structure and continued to siphon dues from providers' humble salaries.

Obviously, SEIU was highly motivated to avoid the financial implications associated with actually honoring workers' rights, so the "opt-out" scheme seemed a desirable alternative. Unfortunately, the state of Washington was all too happy to play along.

In September, several months after Harris, SEIU 775 and the state re-convened at the bargaining table to hash out the "uncertainty" wrought by the Supreme Court's decision. Instead of immediately stopping dues deductions from homecare workers, they agreed to remove the union security provision and replace it with an "opt-out" scheme.

Under this new scheme, the state still captures full union dues from the payments to every home care provider and sends them to SEIU 775. But if a provider objects to the union deductions by informing SEIU 775 by letter, the state and union will permit that provider to cease paying dues.

How gracious of them.

This amended scheme was simply inserted into the now-active CBA that remains in effect until June 2017. In other words, thousands of providers who never signed membership and payroll deduction authorization cards continue to have dues taken out.

The only problem is that the "opt-out" scheme implemented by the state and SEIU 775 plainly violate state law.

The Lawsuit

RCW 41.56.113(1) states that "Upon the written authorization of an individual provider... the state... shall... deduct from the payments to an individual provider... the monthly amount of dues as certified by the... [union] and shall transmit the same to the... [union]."

Pretty clear, right? The state has to have written authorization from a provider before seizing union deductions from their paychecks.

There is an exception to the written authorization requirement. The law goes on to say that the state can take union fees from providers who have not given written authorization if — and only if — the governing collective bargaining agreement contains a union security provision.

Wait. Remember what the state and SEIU 775 explicitly removed from their contract in September 2014? The union security provision.

As of that date — Sept. 26, 2014, to be specific — the law's general rule applied with no exceptions: The state must get written authorization from every provider before seizing union deductions from their paychecks.

But both the state and union have flouted the law. In sworn testimony from March in a federal lawsuit, SEIU 775 Secretary-Treasurer Adam Glickman admitted that the state still seizes dues from approximately 6,000 homecare providers who have never provided written authorization.

Let's put this in financial perspective. Each homecare provider is forced to pay about $585 per year to the union. Multiply that by 6,000 non-authorizing providers, and you get a whopping $3.5 million in annual union revenue collected illegally.

Even more important than the money — which is extremely important — state law protects the basic right of homecare providers to make their own decision about union membership and union fees.

That is why Freedom Foundation recently filed suit on behalf of Miranda Thorpe, a homecare provider who cares for her daughter. Miranda also never provided written authorization to the State for union deductions. Yet the state took full union dues from her payments, every month, without her consent.

Miranda's lawsuit asks the court to declare illegal those portions of the current collective bargaining agreement that direct the state to seize union dues from providers who did not first authorize those deductions in writing.

Very simply, Miranda wants to force the State to obey the law.

NO WRITTEN AUTHORIZATION = NO UNION DEDUCTIONS 

The choice belongs to providers, not the government. And the government should know better than to enter a contract it knows will force it to break binding law.

The things you do for friends...

When the state of Washington is willing to break the law and enter an illegal agreement in order to shield SEIU 775 from the "undesirable" results of homecare providers' constitutional rights, someone has to stand up and demand better.

That's why we're proud to represent Miranda in her effort to force the State to stop facilitating this plainly illegal "opt-out" scheme.

Stay tuned. This is going to get interesting very quickly.

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