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Aug. 13, 2020

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Will the court break public-sector unions?

Those for, against unions anxiously await U.S. Supreme Court ruling on if mandatory dues violate rights

By , Columbian political reporter
Published:
3 Photos
Ben Olson of Camas, left, poses for a family photo. A state-paid caregiver for his medically fragile son, he became disillusioned with the Service Employees International Union.
Ben Olson of Camas, left, poses for a family photo. A state-paid caregiver for his medically fragile son, he became disillusioned with the Service Employees International Union. Contributed photo Photo Gallery

When Monica Stonier first started working full time as a teacher in 2001, she was more focused on learning her students’ names than about her union, the Washington Education Association. But now Stonier, who has since been elected as a Democratic state representative for Vancouver, gives more thought to the future of organized labor.

Stonier said that somehow the Freedom Foundation, an Olympia-based conservative think tank, found her home address. Like thousands of other public employees, she receives a letter each year reminding her that she can limit her financial support for her union.

In recent years, the U.S. Supreme Court has ruled on a series of cases that right-to-work advocates hope will further the decline of organized labor (particularly among public-sector employees).

The Freedom Foundation has actively sought to reduce the power of public-sector unions using these rulings. Last legislative session, Stonier, and other like-minded lawmakers, passed legislation intended to minimize the impact of court rulings unfriendly to unions. This legislation could soon be put to the test.

In June, the court is expected to rule on Janus v. AFSCME. The case is centered on an Illinois state employee who is arguing that being forced to pay fees to a union for representation violates his civil rights. A ruling in favor of Janus would overturn a decades-old precedent and could significantly peel back support for politically influential public-sector unions.

“Janus is the newest attempt to undermine and destroy public-sector unions,” said Gov. Jay Inslee and state Attorney General Bob Ferguson, both Democrats, in a press release. “If Janus succeeds, it will be a win for powerful special interests and another setback for the struggling American middle class.”

Democrats could have reason to worry about the outcome of Janus. In 2011, Wisconsin’s Republican governor signed sweeping legislation that later undercut the finances and political influence of that state’s public-sector unions. Union membership plummeted and the once-dominant Democratic Party saw its influence wane.

Earlier this year, a paper published by scholars from Columbia University, Boston University and the Brookings Institution found that states that passed right-to-work legislation saw the Democratic share of the presidential vote drop by 3.5 percentage points. The study found similar effects down ballot.

But if the court rules for Janus, it won’t necessarily mean that Washington’s public-sector unions will follow Wisconsin’s. During the last legislative session, the Democratic-led Legislature passed bills intended to shore up support for unions. But even with a sympathetic Legislature, union advocates say that organized labor will have to prove its worth to its members if the court rules for Janus.

“I think we have enough history in this country and enough support, particularly in this state, to show that our unions have provided a higher standard of living and safer work environment for those represented by unions,” said Stonier.

Maxford Nelsen, labor policy director for the Freedom Foundation, said that while Supreme Court rulings tend to be thought of as the final word, they often don’t get into details or practical reality. He said that how a ruling for Janus plays out hinges on how unions respond.

“The interesting thing is, the fact that we even have to ask that question highlights some of the injustice of the current system,” he said.

Reframing the debate

In 1977, the U.S. Supreme Court set a precedent with Abood v. Detroit Board of Education. In the case, the court ruled that public-sector unions can’t force employees to join a union or contribute to its political activity. However, the court upheld that unions could require employees to pay fees to cover collective-bargaining costs.

The ruling concluded that compelling the payments wouldn’t violate employees’ free speech rights. The fees would also address “free riders,” employees who benefit from protections and higher wages secured by the union but won’t pay for them.

Recent court rulings have chipped away at this precedent. In the 2014 case Harris v. Quinn, the court found that home health care workers, assistants to needy people paid with public funds but hired by their patients, were not fully public employees and couldn’t be compelled to pay fees to a union.

By the numbers

Unionization rates of local governments.

Evergreen Public Schools.

Total employees: 3,610

Percent unionized: 96 percent

Clark County

Total employees: 1,619

Percent unionized: 69 percent

City of Vancouver

Total employees (not counting temporary workers): 1,409

Percent unionized: 77 percent

Since then, President Donald Trump has appointed Neil Gorsuch, a conservative jurist, to the Supreme Court. Conservatives are optimistic that the court’s new composition will issue a ruling in the Janus case that will decimate public-sector unions.

The case concerns Mark Janus, a child support specialist for the Illinois Department of Healthcare and Family Services whose cause is backed by multiple conservative organizations. Janus has argued that collective bargaining by public-sector unions is essentially political because it influences the allocation of state resources. He’s argued that being compelled to pay fees to these unions violates his First Amendment rights and is asking the court to overturn the Abood decision.

Nelsen said that the Janus case is a needed re-examination of the role of public-sector unions. He said public employees may disagree with the activities of their unions but are still forced to contribute.

“The reason this is a civil rights issue is because unions are co-opting the voices of people who disagree with them to boost their own political influence,” he said.

But Stonier said if the union secures benefits for all of the workers it represents, then all of its workers should contribute. She said that unions have been a vehicle for better pay and working conditions, especially for minorities. She framed preserving the viability of unions as a civil rights issues.

“That’s the civil rights violation I’m concerned about,” she said.

Back in the union

When Calvin Ravencraft got divorced decades ago, he promised his disabled daughter that she would see his face every morning. Through a program offered by the state Department of Social and Health Services, Ravencraft is paid more than $4,000 a month to take care of his adult daughter full time.

In their home in Battle Ground, Ravencraft brushes her teeth. He feeds and bathes her. He wants to keep her safe and happy. He doesn’t want her to live in a home with strangers taking care of her. He said it makes no sense for him to join a union.

“What am I supposed to do when we go on strike?” said Ravencraft, 62. “Picket and not feed her? File an unfair labor practices complaint against my daughter?”

But Ravencraft expects to again be represented by a union as the result of a bill passed last legislative session.

As a partial public employee of the state, he was required to contribute to Service Employees International Union 775NW local to represent workers like him.

The Supreme Court’s Harris ruling allowed him to opt out. A little over a year ago, Ravencraft, who describes himself as “very conservative” politically, got a letter from SEIU asking him to support Democratic candidates and he decided to opt out. He also said the $160 to $200 he spent a month on the union could be better spent at home.

In a contentious vote last session, the Legislature, under full Democratic control for the first time since 2012, passed Senate Bill 6199. The bill was requested by the Department of Social and Health Services. Currently, partial public employees, like Ravencraft, contract with the department. The bill directs the department to contract with a separate “consumer-directed employer,” a private company that would directly employ caregivers.

Department officials have stated that the legislation will create efficiencies that will save money.

“I think it’s hard to take that argument seriously,” said Nelsen, of the Freedom Foundation, who noted that the bill will cost tens of millions to implement.

Once the legislation is implemented (which could happen as early as 2020), caregivers like Ravencraft will no longer be partial public employees and the Harris ruling will no longer apply to them. It also means SEIU could negotiate a “closed shop,” meaning employees will be required to join or pay fees to the union.

Using public records, the Freedom Foundation has actively sought out partial public employees and contacted them about their options under Harris. Nelsen said SEIU 775 has lost about 10 percent of its membership because of Harris. He said SEIU 925, which represents partial public employee child care providers paid by the department, has lost two-thirds. He said that the union is still politically influential and the real motivation of the bill is to prevent it from losing more members.

Nina Jenkins, spokeswoman for SEIU 775, said that the fact that 90 percent of members didn’t opt out despite the Freedom Foundation’s aggressive campaign shows the union’s value.

“We fight hard for our workers,” said Jenkins. She pointed out that since the union formed in 2002, wages have doubled. She also said caregivers have received paid mileage, sick leave and retirement benefits thanks to the union.

Linda Lee, 65, has worked as a caregiver for over a quarter-century. She said that SEIU gave her hope and empowerment for a job she described as a “calling” but was hard to get by on.

When the state began its caregiver program she made about $3.58 an hour and had to use food stamps and Medicaid. Now, she makes $16.25 and has benefits and training. She said she and other caregivers have been paid late under the current system and expects the reorganization under Senate Bill 6199 to help.

She said she sees newer caregivers with pamphlets from the Freedom Foundation and is frustrated.

“I tell them that we worked hard to get where we are and we want them to join us in improving care for our clients,” she said.

But Ben Olson, a resident of Camas and a state-paid caregiver for his medically fragile son, is unconvinced. In 2009, he became an active member of SEIU, helping campaign for candidates backed by the union.

But he said he steadily became disillusioned after the union supported candidates he disagreed with. He also said members were treated like “cattle.” Tired after attending a union convention all day in Seattle, Olson said he was loaded on a bus and taken to a protest that he was told to either join or wait inside for hours.

After someone from the Freedom Foundation handed him a pamphlet at an SEIU convention, Olson opted out of the union in 2015. He said he used the money he saved on dues to pay bills and start a retirement account. But he still attends trainings offered by SEIU.

“There are things I support but I don’t support them taking over our voice,” he said.

Preparing for Janus

Growing up in Northeast Portland, Patricia Loving recalled her post office worker father’s career advice: “Get a union job.”

After working at nonunion jobs in customer service and banking (where she got laid off), she landed a union position at the Oregon Department of Human Services. She was later hired at the Vancouver branch of the Washington Department of Social and Health Services, helping needy individuals navigate social services. Lacking a college degree, she spent 21 years working her way into a comfortable position.

Speaking outside her office in east Vancouver, Loving, 48, wore hoop earrings and a bright green shirt for her union, the American Federation of State, County and Municipal Employees. She said that her union has had her back with disputes with management and negotiated for security guards at work. She said the union also helped secure pay increases she uses to care of her family. She earns $4,292 a month.

“If the union wasn’t here we wouldn’t get what we do,” she said.

Loving said the Janus case could put the union in jeopardy. Sharing her concerns, last legislative session Democratic lawmakers passed laws meant to shore up support for unions in anticipation of the Janus ruling, according to Nelsen.

Included in that legislation was House Bill 2751, sponsored by Stonier. It requires government employers to deduct union dues (or fees for nonmembers) from workers’ pay even without their authorization. If the court rules for Janus, the workers would have to affirmatively opt out of having the payment automatically deducted.

The Legislature also passed Senate Bill 6229. The law requires state employers to allow union representatives access to new employees to present them information.

“In my personal experience and in stories I’ve heard around the state, a lot of time people don’t recognize the value of their union until they need it,” said Stonier.

She said that these presentations will mean that new state workers will know what they would be opting out of and choose to support the union.

But Nelsen criticized the legislation, saying that it will give unions a chance to “pressure and coerce” employees and it could be used to create a hurdle to keep them from opting out.

“A business that engaged in anything similar would be subject to a lot of criticism,” he said.

Stonier said she’s confident public-sector unions will prove their worth to workers and doesn’t expect a ruling for Janus to change much in Washington.

“Our union is strong and going to stay strong,” said Loving.

Loving is similarly optimistic but is still being proactive. Holding a leadership position in her union, Loving is preparing to travel the state to meet with other state workers to remind them of the union’s benefits in hopes they won’t opt out.

“Our union is no stronger than our members,” she said.

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