A silly SEIU argument to keep workers in the dark

A big change may be coming to the coercive relationship between public employee unions and employees who don’t want to be represented by them. The U.S. Supreme Court is currently considering a case (Friedrichs v. California Teachers Association) that seeks to do away with forced “agency fee” payments to unions by employees who choose not to join. Currently, public workers can opt out of being union members but can still be compelled to pay agency fees to a union for collective bargaining representation.

Reading the court’s tea leaves based on oral argument is always a hazardous business, but based on the questions justices asked, it’s likely the court will say agency fees violate public employees’ First Amendment rights. One SCOTUSblog analyst wrote that some justices’ focus on respecting precedent, rather than the substantive arguments, “suggests that the more liberal Justices realized that the battle on the merits of the case was not one that they could win.” The case could have far-reaching impacts here in Washington.

Union doesn’t want workers to know they can leave
A ruling affirming workers’ First Amendment rights would build off one from summer 2014 (Harris v. Quinn) that said “quasi-public” employees, such as home health care workers, cannot be forced to join a union or pay agency fees to one. That ruling directly affects 35,000 home health care workers, among others, in our state.

Those workers pay dues to SEIU 775 – but after the court’s ruling, they don’t have to any more. That is not news the union is anxious for them to hear about. It could mean losing out on millions of dollars in dues money, 40% of which SEIU spends on political activities.

The Freedom Foundation does think these workers should hear the news. After the June 2014 Harris ruling, it filed a public records request with the state Department of Social and Health Services for names (not contact info, just names) of the government-paid home health care workers. The agency stalled, SEIU sued to stop the release, and the matter is still tied up in the courts.

We shouldn’t expect anything other than self-interest and self-preservation to guide SEIU’s decisions, I suppose. But think about what SEIU is doing: it is suing to prevent its members from finding out about their constitutional right. That might be in the union’s financial interest, but it certainly qualifies as unseemly.

A weak argument
Already by October 2014 a Thurston County judge ruled against SEIU, deciding that the records the Freedom Foundation sought could be released. SEIU appealed, and the appeals court allowed an injunction to block the release for the time being. The court finally heard oral arguments two weeks ago, well over a year after the trial court ruling. The case will likely head to the state Supreme Court.

Everyone deserves their day in court, but it’s tough to see SEIU’s conduct as anything but a stalling measure. It wants to delay, for as long as possible, home health care workers being informed that they can quit the union with no penalties.

SEIU’s case is weak. It hinges on interpretation of a state prohibition on obtaining names from public records requests for “commercial purposes.” SEIU is essentially arguing that if the information is released to the Freedom Foundation, the foundation will contact workers, leading some of them to quit the union and deprive it of dues it would otherwise receive. That, in this silly argument, would therefore have a commercial effect, so the records request is for a “commercial purpose” and can’t be disclosed under state law.

That’s a ridiculous tack to take. One could surmise that it’s not a real argument, just a stalling tactic. And why not stall? There are millions of dollars at stake for the union – specifically, 3.2% of wages x 35,000 workers who aren’t required to pay those dues. If keeping workers in the dark about their rights to opt out is what it takes to keep the dues money flowing, SEIU’s attitude seems to be, then so be it.

The case is unfortunate and the outcome is not much in doubt. Also, if the courts accept SEIU’s argument about “commercial purposes,” it would blast a huge hole in our state Public Records Act. Any monetary impact from a public records request could be used as an excuse to not release legitimate public records. For that and many other reasons, hopefully the courts get this one right.
-Rob McKenna

Learn more:
SEIU’s dues collection from home-care workers is illegal

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Rob McKenna
Rob served two terms as Washington’s Attorney General, from 2005 to 2013. He successfully argued three cases before the U.S. Supreme Court and negotiated three of the largest consumer financial protection settlements in national history, all involving mortgage lending and servicing. He is a recognized leader in the development of consumer protections on the internet, in data protection and privacy regulation.