Freedom Foundation

Labor-backed bill to unionize administrative law judges passed by Washington Legislature

As public employees increasingly resign their union membership in the wake of the U.S. Supreme Court’s 2018 ruling in Janus v. AFSCME permitting them to do so, government unions in Washington state have supported legislation to unionize as many additional types of public employees as possible to increase their pool of potential members.

For example, the Washington Federation of State Employees (WFSE) experienced a 27.4 percent decline in financial supporters from July 2018 through June 2019.

To help offset these losses, union-backed state lawmakers in 2019 passed SB 5297, allowing WFSE to unionize about 600 assistant attorneys general.

This year, at WFSE’s urging, state legislators passed HB 2017 to provide for the unionization of the roughly 100 administrative law judges (ALJs) in the Office of Administrative Hearings (OAH).

The Freedom Foundation contended the legislation it should have been modified in three ways.

First, it should have protected ALJs’ constitutional right to make their own decisions about union membership and dues payment. To that end, the Freedom Foundation argued that union dues should only be deducted from an ALJ’s wages if the judge freely and affirmatively authorizes the deductions and knowingly waives their First Amendment right to refrain from such deductions, as recognized by the Supreme Court in Janus.

While Sen. Shelly Short (R-Addy) introduced an amendment to provide such protections for ALJs, a majority of the Democrat-controlled state Senate rejected it. Instead, ALJs will be subject to existing state law making it very easy for unions to initiate dues deductions from their wages and very difficult for ALJs to cancel such deductions.

Secondly, the Freedom Foundation argued the bill should impose certain transparency requirements on collective bargaining negotiations between the state and the union representing ALJs. Many states, including both Oregon and Idaho, provide for some level of public observation of collective bargaining between government entities and unions representing public employees. Transparent bargaining encourages all parties to behave reasonably and reach agreement without undue conflict. It permits employees to judge for themselves the union’s negotiation on their behalf and allows taxpayers and the media the ability to evaluate and monitor the proceedings for issues that may be important to them.

Unfortunately for ALJs and taxpayers, an amendment introduced by Sen. Short to require a level of collective bargaining transparency was also rejected by the Senate majority.

Finally, the Freedom Foundation argued that ALJs deserved a right to vote on union representation in a secret ballot election administered by the Washington Public Employment Relations Commission (PERC). An amendment introduced by Sen. Curtis King (R-Yakima) to guarantee such a right to ALJs generated the most discussion on the Senate floor.

Historically in Washington, unions could be certified to represent a group of public employees by either: (1) Winning a majority of employee votes in a secret-ballot election run by PERC; or, (2) Submitting to PERC cards signed by a majority of employees indicating a desire to be union represented.

The latter method is referred to as “cross check” in state law because it involves PERC “cross-checking” the signed cards it receives with the list of public employees in the bargaining unit to determine whether the union secured a majority. However, the process is commonly referred to as “card check” as that is how it is described in private-sector labor law.

While both secret-ballot elections and cross check were historically common in Washington, legislation passed in 2019 effectively made cross check the default option for unions seeking to organize new bargaining units of public employees. When WFSE unionized AAGs in late 2019, cross check was the method used. Presumably, WFSE will seek to unionize ALJs in the same manner, which is why Sen. King’s amendment generated such a stir.

Sen. King explained that, under card check,

“…You can envision three or four people coming up to an individual and saying, ‘Hey, would you like to be a member of this union?’ Well, it’s intimidating. At the very least, it’s intimidating. And all we’re saying here is, once you do this — once you talk to these people — give them a chance to do it by secret ballot.”

The only articulated opposition to Sen. King’s amendment came from Sen. Karen Keiser (D-Des Moines), former communications director for the Washington State Labor Council, who argued:

“I really don’t think our members of the administrative law judge organization would be intimidated when someone asks whether they want to join a union and would they like to sign a (union membership) card. I think that’s just a normal kind of discussion that happens in workplaces. And it happens all over our state government… And, if you think about it — in a lot of ways it’s kind of what we do with mail ballots now… We send a ballot in. Same thing can happen with card check.”

Of course, as Sen. John Braun (R-Centralia) sarcastically explained in reply, that’s not at all how card check works in practice:

“So that was quite an explanation of card check. I’ve never heard such a thing. Apparently, in the future for your ballot, someone — a couple folks — will come to your home, talk to you about how one side of the ballot is really important to vote for, encourage you to do it right there in front of them, not seal it up, and carry it with them to deliver it for you. That’s how card check works. I haven’t voted for a month or two, but I don’t think that’s how the mail-in ballots work…”

He’s absolutely right. There is simply no reason card check is superior to a secret ballot election. Unions only prefer it because it’s easier for them to secure a majority that way, whether by merely badgering employees until they sign a card or through the use of more sinister means.

The most that can be said for card check is that, in some cases, a majority of employees may genuinely want to unionize and are, therefore, not harmed by the lack of a secret-ballot vote. But, in such cases, a secret-ballot election would be an equally viable way for employees to express their view while also providing systemic procedural protections against coercion in case employees are less enthusiastic about unionization.

The fact that the Senate majority voted against the amendment sends a pretty strong signal that union-backed lawmakers are more interested in boosting the membership of their political ally, WFSE, than they are about actually benefiting ALJs.