June 27, already the anniversary of the U.S. Supreme Court’s landmark ruling in Janus v. AFSCME, might one day also be remembered in the annals of organized labor as the date on which Washington bureaucrats blundered their way into another costly lawsuit for trying to prevent public employees from learning about their newly affirmed rights under Janus.
The Freedom Foundation, an Olympia-based free-market public policy advocate, on Oct. 2 filed a federal lawsuit with the U.S. Western District Court in Tacoma against the state’s Department of Labor and Industries and its assistant director of human resources, Heather Normoyle.
The complaint alleges the agency denied Freedom Foundation canvassers the same access to the public areas of its headquarters building (located in Tumwater, Wash.) that is routinely granted to other organizations — including labor unions.
The Freedom Foundation’s forte is informing government employees about the Janus ruling, which prohibited mandatory union membership or dues in the public workplace. In pursuit of that mission, one of its canvassing teams paid a visit to the L&I headquarters building on the one-year anniversary of the court’s June 27, 2018, decision.
They informed the building’s receptionist they intended to hand out informational materials explaining that, under Janus, forcing workers to join — or pay dues to — a labor union is a violation of their First Amendment rights to free speech and association, and she granted them permission to proceed.
After about 40 minutes, however, Ms. Normoyle arrived with several Washington State Patrol troopers and ordered the visitors to leave. One of the troopers also allegedly demanded the Freedom Foundation staffers stop documenting the action with photographs. Normoyle said the decision to deny the Freedom Foundation access was based on departmental policy requiring prior approval. When asked to produce a written copy of the rule, she agreed to send it by email — which she did later that day. But on its face, the policy does not prohibit anyone — not even the Freedom Foundation — from leafletting or speaking in the areas where the canvassers were located.
“Even if the agency had a written policy covering this, it can’t be worded or interpreted so narrowly that it allows one group access to the building’s public spaces but denies another,” said Maxford Nelsen, the organization’s director of labor policy and one of those expelled from the department’s building. “Obviously the union representing L&I employees is pressuring the agency to deny the Freedom Foundation’s First Amendment right to share a message it doesn’t want its members to hear.”
Nelsen said a group of LGBT activists had already set up a display in the same area when he and the Freedom Foundation canvassers arrived. It and other organizations — including labor unions — are routinely allowed to pass out literature and interact freely with L&I employees without even seeking, much less obtaining, a permit first. The Freedom Foundation seems to be the only organization excluded.
As a result of this clear discrimination and violation of the Freedom Foundation’s fundamental rights, the lawsuit seeks:
- a declaration from the state that the actions of L&I and Ms. Normoyle violated the Freedom Foundation’s First Amendment rights;
- an injunction to ensure the agency will not try to deny the Freedom Foundation access to the workers in the future; and,
- damages to be determined at court, in addition to court costs and attorney fees.
“(T)he department’s and Ms. Normoyle’s reliance upon the policy is a mere pretext for intentional, viewpoint-based discrimination against the Freedom Foundation and its message, aimed at a critical time for the dissemination of that message (i.e., the anniversary of the Janus decision),” the Freedom Foundation’s lawsuit states. “At the very least, the department and Ms. Normoyle have not consistently enforced the policy against speakers in the past, including LGBT advocacy groups and/or speakers representing unions’ point of view.”
Unfortunately, it is clear that for the Freedom Foundation to have the same rights to speak with public employees as other groups enjoy, the intervention of the courts will, again, be necessary.