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Six Ways SEIU 775 Is Getting Around Harris v. Quinn

Six Ways SEIU 775 Is Getting Around Harris v. Quinn

May 18, 2016

This post will be updated periodically to reflect the latest developments.

During the period of intense handwringing that went on throughout the labor movement as the U.S. Supreme Court considered the Friedrichs v. California Teachers Association case—which could have given public employees around the country the ability to choose for themselves whether to join and pay dues to a labor union—SEIU 775 president David Rolf advised his fellow labor leaders about how not to respond if the court ruled against the unions.

Writing for The Nation in February, Rolf warned,

"After Friedrichs, unions will be tempted to react in all of the wrong ways: engaging in non-strategic mergers, circling the wagons around current members and contracts, isolating themselves further from the larger non-union workforce, and desperately attempting to preserve yesterday's fading status quo in the few pockets of remaining union strength. These are the natural impulses of organizations and movements in crisis. But such fear-based, conservative, and restorationist impulses can only serve to hasten our already advanced decline."

While Justice Antonin Scalia's unfortunate passing staved off a likely defeat for the unions in Friedrichs, Rolf's union of 35,000 state-paid individual provider home care aides (IPs) was already dealing with the fallout from a similar decision issued in June 2014. In Harris v. Quinn, the Supreme Court ruled it was unconstitutional to force "partial public employees"—like the IPs represented by SEIU 775—to pay union dues or fees against their will.

Interestingly, in the nearly two years since the Harris decision, Rolf doesn't seem to have taken his own advice. With substantial assistance from Gov. Jay Inslee's administration, SEIU 775 has "attempted to preserve yesterday's fading status quo" with an array of policies designed to lock down its membership and prevent IPs from learning of and exercising their constitutional right to leave the union.

SEIU 775 has employed six primary strategies in its attempt to skirt the Harris decision:

  • Preventing IPs from learning of their First Amendment rights
  • Taking dues from IPs without their permission
  • Requiring IPs to attend coercive union meetings
  • Limiting IPs' ability to resign from the union to a 15-day annual window
  • Using state resources to promote union membership
  • Signing IPs up for union membership electronically and telephonically

Despite its best efforts, the number of IPs leaving the union continues to gradually, but steadily, increase.

Preventing IPs from learning of their First Amendment rights

SEIU 775 knows IPs can't exercise a right they don't know they have. In the months following Harris, it quickly became clear that neither the state nor SEIU 775 were going to make any genuine, non-deceptive effort to inform caregivers of their right to leave the union.

Consequently, in July 2014, the Freedom Foundation requested the list of IPs from the Department of Social and Health Services (DSHS), which is disclosable under the state Public Records Act (PRA), in order to inform them directly of their new options regarding union membership. But rather than turn over the list, DSHS delayed the release of the records long enough to allow SEIU 775 to file a lawsuit seeking to block its release (SEIU 775 v. DSHS and Freedom Foundation, Case No. 46797-6-II).

A Thurston County judge ruled in October 2014 that, as the Freedom Foundation contended, the list was disclosable under the PRA. The union appealed the decision.

SEIU 775's efforts to "(keep) workers in the dark about their rights" drew the condemnation of former state Attorney General Rob McKenna, who described the union's lawsuit as "weak," "unseemly," "a stalling measure" and "silly."

Having lost the first round in court, SEIU 775 turned its attention to a stealthy attempt to simply re-write the PRA in its favor during the 2015 legislative session.

Touted as a measure to protect Department of Corrections (DOC) workers from retaliation, SB 5678 was introduced by three Republicans and a Democrat in the state Senate. A companion bill, HB 1349, was introduced by Rep. Sam Hunt (D-Olympia) in the House. While Teamsters 117, which represents DOC employees, took point lobbying for the bills, SEIU was nowhere to be seen, at least publicly.

The Freedom Foundation mobilized against both bills, which would have done nothing substantive to protect DOC staff. For practical purposes, the bills may as well have just said, "the Freedom Foundation shall not use lists of employees obtained from the state for the purpose of informing them of their ability to resign union membership."

Documents obtained by the Freedom Foundation from the governor's office via a public records request after the session confirmed SEIU 775 as the force behind both bills.  

On Jan. 30, SEIU 775's general counsel, Judith Krebs, forwarded an email to SEIU 775 Secretary-Treasurer Adam Glickman, SEIU 775's lobbyists and Teamsters 117 lobbyist Brenda Wiest. The subject line read, "SEIU 775 / Proposed Legislation Consult," and the email included a legal analysis of a proposed amendment to SB 5678/HB1349 performed by the law firm Bean, Gentry, Wheeler & Peternell on behalf of SEIU 775 and Teamsters 117. Glickman then forwarded the email and analysis to Aisling Kerins, Gov. Inslee's director of external relations, requesting that the Office of Financial Management (OFM) weigh in supporting the amendment.

HB 1349 eventually passed out of the Democrat-controlled House on a party-line vote, with all Republicans voting against it, and died in the Senate. While Sen. Pam Roach (R-Auburn) spirited SB 5678 through her committee before it could be amended by the sponsor to address the Freedom Foundation's concerns, the bill never made it to the Senate floor for a vote.

While its appeal dragged on in court, SEIU 775 made another run at the PRA during the 2016 legislative session. This time, the union jettisoned the stealth approach in favor of a higher profile pressure campaign to pass SB 6542, introduced by Sen. Don Benton (R-Vancouver). In an email sent to IPs on Feb. 11, SEIU 775 pulled out all the stops in its attempt to make the situation sound as dire as possible and get caregivers to contact the Legislature in support of the bill, claiming:

"Believe it or not, our state's Public Records Act has a loophole that lets anyone obtain our personal contact information. And its happened. Caregivers across the state have been targeted by the Freedom Foundation, an extremist group that lobbied against funding the raises in our union contract and opposed caregivers getting a retirement benefit… The Legislature needs to close this dangerous loophole so that caregivers and other public service workers like us can do our jobs without fear of harassment."

For the record, the Freedom Foundation has never opposed raises and retirement benefits for IPs and, at this point in time, the Freedom Foundation had still not done any comprehensive outreach to IPs. Additionally, the vast majority of IPs "personal contact information" is already exempt from disclosure under the PRA. The Freedom Foundation is seeking only a list of names. SEIU 775 also neglected to mention the fact that, in accordance with Article 5.1 of the collective bargaining agreement (CBA), the state provides SEIU 775 with monthly updates of all IPs' personal information, including not just names, but date of birth, physical and mailing addresses, email addresses, phone numbers, marital status, language preference and even Social Security Numbers, all in spite of the PRA's prohibition against the information's release.

Despite Sen. Benton's misguided insistence on standing by the legislation, the Freedom Foundation again blew the whistle on the bill. It died in the Senate without receiving a hearing.

The union's failed legislative efforts came with a high price tag. Between 2015 and 2016, SEIU 775 spent a total of $927,634.13 on lobbying and political contributions to advance its agenda.

In another setback, a state appeals court ruled unanimously against SEIU 775 in April 2016 and upheld the trial court's decision finding the list of IPs is disclosable to the Freedom Foundation under the PRA. The union is currently appealing the decision to the state Supreme Court. Federal records indicate that between 2014 and 2015, SEIU 775 paid the two Seattle law firms representing the union in the lawsuit (Schwerin, Campbell, Barnard, Iglitzen & Lavitt, and Frank, Freed, Subit & Thomas) a total of $788,100.

Having failed twice in the Legislature and twice in the courts, but successfully put off the day of reckoning for another two years, SEIU 775 appears to have now turned to the ballot box for relief.

Initiative 1501, filed in March, would reform the PRA to bar the release of IPs' names and reinforce the statutes already exempting the rest of their personal information from disclosure. It would also block the release of the names and contact information of SEIU 925-represented family child care providers, who also may stop paying union dues under Harris. Federal records indicate SEIU 775 paid the Seattle law firm that filed the initiative, Smith & Lowney, $21,532 in November 2015, likely to draft the initiative.

Unsurprisingly, Section 11(d) of I-1501 allows for all detailed personal contact information of IPs and family child care providers to be released to "a representative certified or recognized under RCW 41.56.080," the statute governing the unions that represent IPs and family child care providers. So while SEIU 775 and SEIU 925—both private organizations—will still be able to get caregivers' detailed personal information, groups like the Freedom Foundation and even other caregivers, will not be able to even get a list of names.

The rest of the initiative contains just enough window-dressing language and minor adjustments to identity theft laws to obscure the measure's real purpose and provide cover for a favorable ballot title:

"This measure would increase the penalties for criminal identity theft and civil consumer fraud targeted at seniors or vulnerable individuals; and exempt certain information of vulnerable individuals and in-home caregivers from public disclosure."

So far, the so-called "Campaign to Prevent Fraud and Protect Seniors," run by SEIU 775's Adam Glickman, has received $1,406,491.39 in cash and in-kind contributions from SEIU, the measure's sole financial backer.

Between SEIU 775's litigation to block disclosure of the list of IPs, lobbying efforts to rewrite the PRA in its favor, and support for I-1501, the union has spent as much as $3 million to date on efforts to prevent the Freedom Foundation from informing IPs of their constitutional rights.

Taking dues from IPs without their permission

Prior to the June 2014 Harris decision, state law authorized the inclusion of a "union security" provision in SEIU 775's CBA with the state mandating that all IPs pay union dues or fees as a condition of employment. The language remains on the books, though the Harris decision effectively made it inoperative.

In the summer and fall of 2014, the state negotiated new CBAs with the four unions representing workers in Washington affected by the decision: SEIU 775 represented IPs, SEIU 925 represented family child care providers, Washington Federation of State Employees (WFSE) represented language access providers, and Washington State Residential Care Council represented adult family home providers. Each was approved by the Legislature and took effect on July 1, 2015.

Because of Harris, the union security provisions were removed from each of the new CBAs. Gov. Inslee's labor negotiators at OFM did the right thing for three of the four Washington unions affected by the decision. The new language covering dues deduction for family child care providers (Article 5.3A), language access providers (Article 12.1A) and adult family home providers (Article 13.1A) all specified that the state would only withhold union dues from providers who had authorized the deductions.  

However, SEIU 775—the largest and most politically potent of the Harris-affected unions—received special treatment. While the state's initial bargaining position was that it would also only deduct SEIU 775 dues from IPs who had first provided "proper authorization," the final CBA required the state to automatically withhold dues from all IPs unless the caregiver demanded in writing that the deductions cease (Article 4.1).

According to a court declaration made by Adam Glickman, the union is currently taking money without permission from about 6,000 IPs who never signed a union membership card.

The union's arrangement is not only outrageous but violates both state and federal law. State law clearly states that, in the absence of a "union security" provision requiring mandatory dues payment, the state can only collect union fees from IPs who have provided written authorization. The Freedom Foundation is currently representing a group of IPs in litigation in state court seeking to end SEIU 775's illegal dues deduction practices (Thorpe v. Inslee and SEIU 775, Case No. 92912-2).

Additionally, the Freedom Foundation recently filed litigation against SEIU 775 in federal court on behalf of another group of IPs arguing that the union's dues deduction scheme violates IPs' First Amendment rights as recognized by Harris v. Quinn and Knox v. SEIU Local 1000 (Smith v. Inslee and SEIU 775, Case No. 3:16-cv-05359).

No IP should have union dues withheld from their pay without their express permission.

Requiring IPs to attend coercive union meetings

In addition to requiring IPs to opt-out of union dues rather than opt-in, SEIU 775's latest CBA with the state contained several measures designed to assist the union in maintaining its membership. Most prominent is the requirement that new IPs sit through two union presentations as part of their state-mandated training and certification process.

One of the first steps a person seeking to become an IP must complete is a DSHS-administered contracting appointment, where the individual signs their contract with the state and receives an orientation from DSHS staff about the steps involved in completing their training and certification. Article 2.3 of the current CBA directs DSHS to consolidate contracting appointments as much as possible and grants SEIU 775 "…fifteen (15) minutes for a Union representative to meet with the individual provider(s) participating in the contracting appointments."

After their contracting appointment, incoming IPs must complete 70 hours of state-required and funded training through the SEIU Healthcare NW Training Partnership, a non-profit organization established by, but legally separate from, SEIU 775 which state law specifies is the only entity permitted to provide IPs' training. State law also requires IPs to complete 12 hours of continuing education through the Partnership each year.

Article 15.13 of the CBA provides the union with access to both IPs' initial training and continuing education courses:

"The parties agree that the Training Partnership shall provide the Union with reasonable access to its training classes, including providing the Union with technical support for online learning, in order for the Union to make presentation on Union issues. The Employer agrees to compensate up to thirty (30) minutes of time for a presentation on Union issues to all individual providers receiving the Union portion of required basic training. The Employer agrees to compensate up to fifteen (15) minutes of time annually for a presentation on Union issues to all individual providers receiving the Union portion of required continuing education. Any additional time for a presentation on Union issues agreed upon between the Union and the Partnership shall not be paid by the Employer."

Since implementation of the CBA, reports from IPs indicate SEIU 775 has used these mandatory union presentations to coerce IPs into signing membership cards and contributing extra funds to the national SEIU's political action committee (SEIU 775 admits that 40 percent of IPs' regular dues are already spent on political activity). IPs are left with the false impression that union membership is mandatory. In one case, an SEIU trainer was caught on tape falsely telling a class of IPs they had to be part of the union. 

SEIU 775's illegal practice of deducting dues automatically from all IPs allows union organizers to tell incoming IPs that they may as well sign the membership card and have a voice in the union's internal affairs, since they're going to pay the same amount of money even if they refuse to sign.

The Freedom Foundation is currently representing a group of IPs in a federal lawsuit against SEIU 775 and the state on the grounds that the coercive "captive audience" meetings violate IPs' First Amendment rights (Alvarez v. Inslee and SEIU 775, Case No. 3:16-cv-5111-RJB).

In a clear admission of wrongdoing, SEIU 775 and the state negotiated a memorandum of understanding shortly after the lawsuit was filed which modified the terms of the CBA to make attendance at the union presentations optional, instead of mandatory, and specifying that the orientations shall not contain political content. It is unclear how the MOU has changed the practice on the ground, if at all. Multiple legal issues remain and the litigation is ongoing.

Limiting IPs' ability to resign from the union to a 15-day annual window

SEIU 775 recently placed a strict limitation on IPs' ability to resign from the union and cease paying dues. After the Harris decision, SEIU 775 altered the fine print on its membership cards to eliminate the ability of any card-signer to cease paying dues unless they submit a written demand during the 15 day period occurring between 45 and 30 days prior to the annual anniversary of the day the IP signed the card. The exact text reads:

"I authorize my employer(s) to deduct from my wages all Union dues and other fees or assessments as shall be certified by 775 under its Constitution and Bylaws and to remit those amounts to 775. This authorization is irrevocable for a period of one year from the date of execution and from year to year thereafter, regardless of my membership status, unless not less than thirty (30) and not more than forty-five (45) days prior to the annual anniversary date of this authorization or the termination of the contract between my employer and the Union, whichever occurs first, I notify the Union and my employer in writing, with my valid signature, of my desire to revoke this authorization."

Beginning around March 2016, the Freedom Foundation started hearing from IPs who tried to opt out of paying dues and received a letter from the union stating, 

"Because you have revoked your authorization outside the window period, Union dues and all other fees or assessments that SEIU 775 has certified under its Constitution and Bylaws will continue to be deducted from your paycheck until your window period even through you are no longer a member."

The arbitrary window period is different for each IP and serves only to limit IPs' ability to exercise their constitutional right to cease paying dues to SEIU 775 against their will and give the union more time to talk them back into formal membership.

Article 4.1(C) of SEIU 775's current CBA with the state set the stage for the enforcement of the window period by providing:

"…the Union reserves the right to enforce the terms and conditions of each home worker's signed membership card with regard to when authorizations for deductions may be revoked. The Employer shall honor the terms and conditions of each home care worker's signed membership card."

True, each IP bound to the window had signed a membership card. However, because of SEIU 775's misinformation and coercion, most IPs are under the false impression they have to sign the membership card and are unaware of their rights.

Using state resources to promote union membership

In addition to having access to IPs' mandatory training and certification classes and orientations, the CBA permits SEIU 775 to co-opt a host of state tools and resources to promote union membership, disseminate union information, boost the union's lobbying efforts and solicit contributions to the national SEIU PAC.

  • Article 2.4 of the CBA gives the union "a right to bulletin board space in the offices of the Employer, its agencies, contractors, or subcontractors that individual providers necessarily frequent due to work-related business."
  • Article 2.5 of the CBA requires all DSHS websites "that individual providers might reasonably access to seek employment-related information" to "contain a link to the Union's website."
  • Article 2.6 requires the state to distribute "union membership applications and union orientation materials" to IPs. Copies of all such documents distributed since 2014 were obtained from the state by a Freedom Foundation public records request. The documents include an SEIU 775 membership card which includes a solicitation for donations to the national SEIU PAC to "hold politicians accountable to working families."
  • Article 2.7 requires the state to include SEIU 775 materials in the pay envelopes mailed to IPs. The Freedom Foundation also obtained all such documents from the state. The documents tout the 2015-17 CBA as the "best home care contract in the nation" and call on the Legislature to "approve and fund our contract."
  • Article 2.8 requires the new IP payroll website to include a link to the union's website. It also specifies that the union may send messages to IPs through the site and requires that, "When a home care worker logs into the payroll website, the initial screen will include a notification of new message(s) from the Union."

The Freedom Foundation is challenging the appropriateness of this use of state resources to promote a private special interest group in the same lawsuit that contests the constitutionality of the state-facilitated union presentations IPs attend as part of their mandatory certification and training (Alvarez v. Inslee and SEIU 775, Case No. 3:16-cv-5111-RJB).

Signing IPs up for union membership electronically and telephonically

While SEIU 775 specifies that requests to cease paying union dues must be submitted in writing during a 15-day annual window period, the union permits IPs to sign up for membership online, over the phone and in writing at any time. Documents obtained by the Freedom Foundation from Gov. Inslee's office in fall 2014 revealed that his administration was "cooperating with the unions' actions" to have the state recognize "electronic signatures" and "taped declarations" indicating union membership.  

Since that time, the Freedom Foundation has heard from multiple IPs who claim they were misled into agreeing to union membership and dues payment electronically and over the phone. An anonymous letter recently sent to the Freedom Foundation by someone who claimed to work in SEIU 775's call center (known as the "Member Resource Center," or "MRC"), says employees are instructed to do anything necessary to sign up IPs for membership over the phone.

The author explains (errors in original):

"When SEIU775 call center hires, they never tell to the New Hires that job is not really to help union members with training and health benefits, but to record legal script on the phone to every member who calls for help; even if this member does not understand English or legal language. Most MRC employers understand it is wrong and disgusting… but employers afraid to say anything, because they will be fired same moment. SEIU775 fire quick if you disagree with their policy… [SEIU775 MRC director Jennifer Rodgers forces] call center employers, under the threat of being fired, to solicit and lie to members, to record membership messages and obtain signature over the phone using deceptive way."

SEIU 775 is willing to use any means necessary to get an IP signed up for membership and prevent them from learning of their constitutional rights, but will only permit IPs to resign in writing during an arbitrary 15-day window period. Private businesses that employed such underhanded and legally questionable behavior would be widely and rightly condemned. So should SEIU 775.

Conclusion

Any IP who wishes to join a union should be free to do so. Thankfully, the U.S. Supreme Court has recognized that the First Amendment demands this same freedom to choose be extended to those IPs who do not want to join and pay dues to SEIU 775.

However, to paraphrase Winston Churchill, Harris was not the end of the battle to do away with compulsory unionism for Washington IPs, but it was perhaps the end of the beginning.

With Freedom Foundation assistance, increasing numbers of IPs are gradually learning of their rights, opting out of SEIU 775 and fighting back against the union's illegal and unethical practices. State payroll records obtained by the Freedom Foundation indicate that, despite SEIU 775's "Hotel California"-style arrangements, the number of IPs leaving the union is slowly, but steadily increasing.

Moving forward, the Freedom Foundation is committed to ensuring that SEIU 775's coercive, illegal, and abusive efforts to prevent IPs from learning of and exercising their constitutional rights are put to a decisive end.

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