Complaint alleges WA state employees union lied about not using public records for commercial purposes

Complaint alleges WA state employees union lied about not using public records for commercial purposes

Complaint alleges WA state employees union lied about not using public records for commercial purposes

The largest union of Washington state employees is selling more than just memberships.

A Freedom Foundation complaint just filed with the Office of Financial Management (OFM) and Thurston County Prosecuting Attorney’s Office alleges the Washington Federation of State Employees/American Federation of State, County and Municipal Employees Council 28 (WFSE) submitted false legal declarations to OFM and other state agencies to obtain lists of certain state employees under the Public Records Act (PRA) that it hopes to unionize and market paid memberships to.

Washington law prohibits government entities from disclosing lists of public employees if the requester intends to use the list for a “commercial purpose.” Accordingly, it is standard practice for agencies processing such requests to require the requester to complete a legal declaration swearing under oath the list will not be used to “generate revenue or financial benefit.”

Such a requirement, however, impedes WFSE’s efforts to unionize and solicit paid memberships from employees in the Washington Management Service (WMS), the cadre of about 5,700 managerial personnel running state agencies.

Stinging from sustained membership declines since the U.S. Supreme Court made union dues payment optional for public employees with its 2018 ruling in Janus v. AFSCME, WFSE is desperate to find new revenue streams.

Washington’s union-aligned legislature and governor have been only too happy to oblige, passing legislation to unionize groups of generally well-compensated professionals in state government for whom union representation was not traditionally viewed as necessary or appropriate — assistant attorneys general in 2019, administrative law judges in 2020, legislative staff in 2022 and WMS employees in 2023.

So far, however, these efforts have failed to fully offset WFSE’s membership losses.

Despite organizing thousands of additional employees, the number of state agency employees paying dues to WFSE declined from 31,539 in May 2018 — the month before Janus — to 24,469 in May 2024, leaving it with a membership rate of only about 60 percent, according to payroll information obtained from OFM by the Freedom Foundation under the PRA. Adjusted for inflation, WFSE’s monthly dues revenue from state agency workers remains several hundred thousand dollars below its pre-Janus level.

The Freedom Foundation has worked diligently since Janus to educate government employees about their right to refrain from joining and paying dues to a union and has assisted thousands of WFSE-represented workers in cancelling unwanted memberships. Organizing the WMS workforce could help backfill the losses.

Since WFSE membership dues are set at 1.5 percent of members’ gross wages and WMS employees are relatively well-paid, with salary bands topping out in the six-figures, even a small number of new WMS members would provide a disproportionate revenue boost for the beleaguered union.

To make that happen, WFSE must first be certified to represent WMS personnel, a process that involves the union either: (1) getting at least 30 percent of WMS employees to petition for a secret-ballot union representation election in which the union wins a majority of the vote; or, (2) collecting signed union cards from a majority of the employees it seeks to unionize, in which case it will receive state certification without an election taking place. In this case, the latter option — the notoriously coercive “card check” process — appears to be WFSE’s preference.

Either way, to collect the necessary signatures from WMS employees, WFSE must first identify who they are.

Accordingly, WFSE has submitted a series of public records requests to state agencies for lists of WMS personnel. The largest request — to OFM, which “manages statewide human resource policy functions” and labor relations — remains outstanding.

As part of its request, WFSE submitted a legal declaration under oath and penalty of perjury claiming the purpose of the request was “union research” and promising that it would neither “generate revenue or financial benefit directly from the list” nor “solicit money or financial support from any of the individuals identified in the list.”

But, as the Freedom Foundation documents in its complaint, WFSE has recently submitted similar declarations pursuant to list requests to other agencies, such as the Department of Licensing, only to turn around and begin soliciting WMS personnel for paid union memberships.

If, as is likely, the WFSE employee(s) submitting the declarations knew the lists would be used to sell union memberships, it could constitute the crime of false swearing, a gross misdemeanor.

Citing past state court rulings finding that, an “agency must investigate when it has some indication that the list might be used for commercial purposes,” the Freedom Foundation’s complaint asks that OFM postpone disclosure of the WMS list to WFSE until it can undertake a thorough investigation to ensure the records won’t be used for commercial purposes like selling paid union memberships.

Ironically, the court ruling in question stemmed from a failed union attempt to prevent the Freedom Foundation from obtaining a list of unionized home care workers for the purpose of informing them of their right not to pay union dues, an activity which the union contended was an impermissible “commercial purpose” but which the court recognized provided no direct financial benefit to the Freedom Foundation.

Since that 2016 decision, however, WFSE and allied government unions have launched repeated broadsides against the PRA via ballot measures and state legislation. While cloaked under the guise of protecting public employees’ privacy and security, these efforts have been exposed as simply attempts to prevent the Freedom Foundation from identifying and distributing communications to government workers about their civil right to refrain from union membership and dues payment.

At the same time, union-backed legislation passed in 2023 requires government agencies to turn over employees’ personal contact information to unions — but only if their staff are already union-represented. For new organizing efforts like those targeting WMS, WFSE must rely on requests submitted under the PRA.

Of course, WFSE doesn’t have to use the lists of WMS employees to distribute union organizing cards that double as paid membership forms. But WFSE’s overriding concern isn’t representing workers but making money, so the petition forms it distributes authorize the state to deduct union dues from the signer’s paychecks.

That should disqualify WFSE from obtaining the requested lists from the state, but the union apparently believes it is above compliance with the law. Unless the authorities act, WFSE may well be proven right.

Director of Research and Government Affairs
As the Freedom Foundation’s Director of Research and Government Affairs, Maxford Nelsen leads the team working to advance the Freedom Foundation’s mission through strategic research, public policy advocacy, and labor relations. Max regularly testifies on labor issues before legislative bodies and his research has formed the basis of several briefs submitted to the U.S. Supreme Court. Max’s work has been published in local newspapers around the country and in national outlets like the Wall Street Journal, Forbes, The Hill, National Review, and the American Spectator. His work on labor policy issues has been featured in media outlets like the New York Times, Fox News, and PBS News Hour. He is a frequent guest on local radio stations like 770 KTTH and 570 KVI. From 2019-21, Max was a presidential appointee to the Federal Service Impasses Panel within the Federal Labor Relations Authority, which resolves contract negotiation disputes between federal agencies and labor unions. Prior to joining the Freedom Foundation in 2013, Max worked for and the Washington Policy Center and interned with the Heritage Foundation. Max holds a labor relations certificate from the University of Wisconsin-Madison and graduated magna cum laude from Whitworth University with a bachelor’s degree in political science. A Washington native, he lives in Olympia with his wife and sons.