SCOTUS halts rules protecting union conscription
"Relax," said the night man, "We are programmed to receive.
You can check out any time you like, but you can never leave!"
— “Hotel California,” Eagles
Recent Supreme Court decisions are eroding the ability of public sector labor unions to compel workers into paying dues, sometimes using deceptive practices. But labor leaders have shown they won’t go quietly in this fight.
Gaining much attention was the U.S. Supreme Court’s Janus v. AFSCME decision that barred public-sector labor unions from forcing non-members to pay agency fees. What is less well-known is that the decision also mandated prior consent to any continuing fee payments. This "opt-in" requirement had been missing from the court's 2014 opinion in Harris v. Quinn. That earlier case applied the same forced-fee prohibition to a special sub-category of public-sector unions, so-called “partial public employees” (PPEs) unions.
Before Harris, the PPE unions had been collecting dues from workers on the mere presumption they were members, even though many hadn’t signed union cards. Dues were taken unless those workers "opted out" by written request. In that case they still had to pay fees as nonmembers. Many PPE unions continued this practice after the Harris ruling, even presuming that nonmembers had consented to continued payment of fees unless and until they opted out of those separately.
Partial public employees include home health aides and in-home child care providers. They are private-sector workers, but are paid using state benefit funds. Some states dubiously categorized them as public employees for collective-bargaining purposes.
Because of the peculiar nature of PPE unions and the fact that the state automatically deducted dues and fees from these workers’ paychecks, many did not even know they had been unionized. The opt-out procedure didn’t require the unions to enlighten them, and the unions didn’t. The priority, it appeared, was preserving the flow of dues and fees into union coffers.
Connecticut and Malloy
A review of the behavior of PPE unions since 2014 makes clear why it was so important for the court to mandate "opt-in" for all public-sector unions in Janus. Most PPE unions were the product of political maneuvering, mainly through executive orders by Democratic governors mandating a union election be conducted with only the loosest of rules. In Connecticut, Gov. Dannel P. Malloy issued such orders in September 2011, and SEIU was certified to represent about 6,500 home health aides on the strength of just 1,228 yes votes out of 1,593 cast. With such low participation, many aides did not know they’d been unionized.
In Washington state, SEIU 775 collected dues from about 36,000 in-home health aides, despite the fact that thousands had not signed union cards. Then, in reaction to Harris, SEIU adopted a cunningly circular logic, according to Max Nelsen of the Freedom Foundation in Washington. The union amended its bylaws to classify anyone paying dues as a “member” − and thus as someone from whom, under Harris, the union could continue to collect money. So workers were “members” because they paid dues, and they paid dues because they were “members.” And all this transpired without most workers’ knowledge.
Then, SEIU 775 tightened resignation rules to lock in those who might become aware of their Harris rights. A member could resign, and a non-member could opt out, only by giving written notice to both the union and the state within 15 days after his or her anniversary date of joining the union. Behold SEIU’s Hotel California rules.
The Freedom Foundation, a west coast nonprofit, decided that workers should know their rights. It requested a list of workers − contact information only, nothing personal − under Washington’s open public-records law.
SEIU 775 sued in state court to block the release of the list. It lost and its subsequent appeals failed, including with the Washington Supreme Court, which declined to hear the appeal. The courts stayed release of the list during the two years of appeals, a time SEIU spent pursuing a parallel legislative strategy. The Washington legislature rejected its initiatives.
In 2016, having exhausted all other options, SEIU 775 spent $2 million on a successful ballot initiative exempting PPE contact information from the public-records law. State and national newspapers condemned the initiative for its deceptive language and for its only exception: the union can still get a list. Under the ordinance, even other PPEs could not obtain contact information for fellow PPEs if, say, they wanted to collect the signatures required to call for a new union election.
Because of this a group of PPEs filed suit in federal court to challenge the law resulting from the ballot initiative. The case, Boardman v Inslee, is pending in the Western District of Washington.
Lesson for union bosses
SEIU 775’s machinations proved remarkably successful. Two years after Harris, it retained 94 percent of its membership, according to data the Freedom Foundation obtained from the state. Contrast this with the experience of SEIU 775’s sister union representing child-care providers in Washington, SEIU 925: It adopted an opt-in policy immediately after Harris and lost 60 percent of its membership over the next two years.
The lesson for union bosses would seem to be that non-transparency with workers pays. Janus correctly blocked this option. But the battle continues. Unions have proven that they can develop unscrupulous tactics to hoodwink the workers they claim to represent and to evade the impact of Supreme Court decisions.
Their future tactics will likely trigger more litigation, but the better alternative would be for the courts to enlist allies in monitoring compliance. The best way to do this is to strike down the barriers that unions and their political enablers have erected to prevent other parties from communicating directly with public-sector workers, namely the exemptions from public records laws.
The Washington District Court might begin with the Boardman case, which could enable the Freedom Foundation to communicate directly with SEIU 775 members and offer another source of information and another perspective.
More work remains to dismantle labor’s Hotel California.
Red Jahncke is the president of Townsend Group Intl, LLC, and a freelance opinion writer. A prior version of this column appeared in National Review.
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