Freedom Foundation

Anti-Janus omnibus bill introduced in Washington Legislature

To no one’s surprise, a group of union-affiliated state lawmakers this week introduced legislation designed to undermine the U.S. Supreme Court’s June 2018 decision in Janus v. AFSCME, which held it is unconstitutional to force public employees to pay union dues or fees as a condition of employment.

House Bill 1575 and its doppelganger Senate Bill 5623 are a grab-bag of government union priorities designed to help maximize their dues collection ability. It continues efforts by Democrats in Olympia to protect some of their biggest political allies at the expense of public employees’ rights.

During the 2018 legislative session, narrow Democrat majorities in the state House and Senate passed two bills designed to preemptively insulate government unions against an expected loss for unions in Janus. One bill, HB 2751, sought to require government employers to collect union dues from all public employees’ wages automatically and without authorization in the event mandatory union dues were stuck down.

Thankfully, the Supreme Court not only struck down mandatory union dues for public employees but clarified that unions could not seize any funds from a public employee “unless the employee affirmatively consents to pay.” The added clarification adopted a recommendation made by the Freedom Foundation in one of its two amicus curiae briefs submitted to the court in support of plaintiff Mark Janus.

The other bill, SB 6229, granted union organizers access to newly hired public employees for at least 30 minutes in a captive-audience setting for the purposes of soliciting membership and was largely unaffected by Janus.

Despite self-reassuring claims by Washington unions that Janus had little effect on them, some unions have lost 20 percent or more of their dues payers since the decision as employees learn about their rights (often through Freedom Foundation outreach) and decide to take action.

HB 1575/SB 5623 is a transparent attempt to take away in practice the rights and choices public employees were granted in principle by Janus. The bill:

Makes it easier for unions deduct dues from public employees’ wages and harder for public employees to cancel such deductions.

Current state laws require government employers to deduct union dues from an employee’s wages only upon written authorization by the employee. HB 1575/SB 5623 requires government employers to also begin dues deduction upon electronic or “recorded voice” authorization by an employee.

SEIU 775, which represents Washington’s individual provider home care aides (IPs), began an effort to sign IPs up for union membership over the phone after the U.S. Supreme Court made union membership optional for IPs in Harris v. Quinn in 2014. The program has operated without legal authority for years, and IPs report the telephonic membership solicitations are quite deceptive. An anonymous letter sent to the Freedom Foundation allegedly from an employee in SEIU 775’s call center claimed the employee was directed, “under threat of being fired,” to “solicit and lie to members, to record messages and obtain signature over the phone using deceptive way” (errors in original).

Allowing additional methods of authorizing union dues deductions, even if deceptive, would not be as objectionable if employees could use the same means to cancel the deduction of dues from their wages. But HB 1575/SB 5623 specifically requires,

“An employee’s request to revoke authorization for payroll deductions must be in writing and submitted by the employee to the exclusive bargaining representative in accordance with the terms and conditions of the authorization.” (emphasis added)

There’s quite a bit packed into that one sentence. Dues deductions can be initiated using just about any method but can only be cancelled in writing. Employees cannot approach their employer directly about cancelling their dues deductions but must get their union to instruct the employer to cancel the deductions.

This is significant because most government unions have inserted irrevocability provisions into their dues deduction authorizations. The provisions generally obligate the employee to pay union dues for at least one year and limit the signer’s ability to cancel the deductions thereafter to a narrow annual window period usually between 10 and 15 days in length. Examples include the Washington Federation of State Employees, Teamsters Local 117, Public School Employees of Washington/SEIU 1948, and the Washington Public Employees Association/UFCW 365.

HB 1575/SB 5623 essentially gives unions complete control over government payroll deduction systems and allows them to veto any employee’s dues cancellation request if it does not meet the union’s arbitrary requirements.

This both harms public employees’ rights and exposes the state and local government employers to legal liability. Janus made it quite clear that public employers may not collect union dues from an employees’ wages without consent. Should a government employer fail to honor an employee’s revocation of consent for dues deductions, it would be vulnerable to federal civil rights litigation.

The Freedom Foundation is already representing state workers in a federal class action lawsuit against WFSE and the state for refusing to cancel the employees’ dues deductions upon request.

Undermines public employees’ ability to vote on union representation in secret ballot elections.

Current state laws allow for a union to be recognized to represent a bargaining unit of public employees in one of three ways: voluntary recognition, cross-check (also known as “card-check” in the private-sector) and secret-ballot election.  The state Public Employment Relations Commission (PERC) oversees union certification and related issues.

Voluntary recognition occurs when a union petitions a government employer to recognize and bargain with the union as the exclusive bargaining representative of certain employees. If the employer agrees, the employees are subject to union representation without a vote.

Under cross-check, a union gathers “showing of interest” cards from employees one-on-one and, if it can gather enough, submits the cards to PERC and is certified as the employees’ exclusive bargaining representative.

Existing state law specifically permits unions to organize most non-state public employees (RCW 41.56.060(1)) and faculty at state universities (RCW 41.76.020(6)) via cross-check and PERC notes it “has extended the cross check process to all other employee groups under its jurisdiction except for certificated teachers.” In most cases, a union must gather showing of interest cards from 70 percent of the employees in the bargaining unit to be certified via cross check (WAC 391-25-391), through the threshold is a simple majority for state employees (WAC 391-25-396).

HB 1575/SB 5623 would allow all public employees to be unionized via cross-check and set the threshold at 50 percent across the board. Unfortunately, union organizers often harass or mislead employees into signing showing of interest cards.

For instance, a Seattle housekeeper recently filed a complaint with the National Labor Relations Board after her workplace was unionized by UNITE HERE Local 8 via a coercive card check procedure. Among other things, union organizers allegedly misinformed employees about their right to revoke their showing of interest cards and prevented them from doing so.

Instead of standardizing cross-check across the board, the state should do away with this inherently flawed process and protect public employees’ ability to democratically vote on their union representation free from coercion in a secret-ballot election.

Eliminates unions’ legal liability under state law for the agency fees they unconstitutionally collected from nonmember public employees prior to Janus.

The Freedom Foundation is currently representing teachers represented by the Washington Education Association (WEA) and state workers represented by the Washington Federation of State Employees (WFSE) who were required to pay agency fees against their will prior to Janus in two federal class-action lawsuits seeking to force unions to refund the money unconstitutionally seized from their wages. These lawsuits are based primarily on federal civil rights law and would continue even if HB 1575/SB 5623 is passed.

Nonetheless, the fact that union-aligned legislators are attempting to protect their political allies from having to pay any penalty for their pervasive violations of public employees’ constitutional rights is troubling.

Removes clearly unenforceable state statutes requiring public employees to pay union fees as a condition of employment.

Striking these indisputably unconstitutional laws from the books is necessary and commendable. It’s just unfortunate they’re being replaced with different unconstitutional laws.

Both HB 1575 and SB 5623 are being introduced by legislators who have worked for or have close ties to labor unions.

The prime sponsor of HB 1575 is WEA-member Rep. Monica Stonier (D-Vancouver). Among the co-sponsors, Rep. Javier Valdez (D-Seattle) is the former president of the Washington State Council of County and City Employees; Rep. Mike Sells (D-Everett) is former president of the Everett Education Association (teachers union) and former secretary-treasurer of the Snohomish County Labor Council; Rep. Mike Chapman (D-Port Angeles) formerly worked as a union-represented police officer; and Rep. Eileen Cody (D-Seattle) was a “founding member” of SEIU 1199.

A union-represented fire fighter, Sen. Kevin Van De Wege (D-Sequim) is the prime sponsor of SB 5623. Co-sponsors include Sens. Jesse Salomon (D-Shoreline); a union-represented King County attorney; Karen Keiser (D-Kent), former communications director for the Washington State Labor Council; Rebecca Saldaña (D-Seattle), former SEIU 6 organizer; and Steve Conway (D-Tacoma), former business agent for UFCW Local 81.

The Freedom Foundation intends to oppose both pieces of legislation and work to prevent government unions and their political allies from undermining public employees’ First Amendment rights.