A case currently before the United States Supreme Court may soon determine whether public employees throughout the country have to pay union dues – even if they aren’t members. While the decision could have long-lasting influence on unions throughout the country, controversial state laws approved this legislative session would blunt that impact by forcing government workers to navigate extensive red tape before opting out of payments. And some worker rights advocates say even if the court rules that way, it will be a long journey to fully settle the issue.
In 2017, union members accounted for 18.8 percent of wage and salary workers in Washington. It’s an increase from the previous three years, but significantly down from its 23.8 percent peak in 1993. Washington’s union membership has been above the national average since 1989.
One of the largest is the Washington Education Association (WEA), a public school union with 85,000 members.
Washington is also one of the 25 states that do not have right to work laws. In 1997, the Supreme Court ruled in Abood v. Detroit Board of Education that while public workers can’t be compelled to join unions or participate in political activities, they can be required to pay union dues, also known as “agency fees,” for collective bargaining. There are 22 states with laws requiring just that.
However, those laws may be tossed out as a result of Janus v. American Federation of State, County and Municipal Employees (AFSCME), which was heard by the court earlier this year. Plaintiff Mark Janus argued that requiring him as a state worker to pay agency fees violates his right to free speech under the First Amendment by forcing him to associate with the union.
Washington Policy Center’s Director for Worker Rights Erin Shannon describes the ruling as a potential “gut blow” to public unions, particularly “if they won’t adapt” to a situation where membership is entirely voluntary.
“No one is prevented from unionizing,” she said. “It doesn’t in any way impact the ability of a union to function. It simply says you can’t force them.”
Runner-up to Janus was the 2014’s Harris v. Quinn decision, in which the Supreme Court ruled that unions couldn’t force home health care providers to pay agency fees because they were considered “partial public” or “quasi-government” workers. In response to that, the Washington state legislature passed a trio of bills, many of them sponsored by current or former union members and officials, intended to circumvent Harris while preemptively softening the potential blow of Janus.
SB 6199 outsourced the state’s contracting role to a private entity, placing the state’s 35,000 health care workers fully in the private sector and allowing SEIU 775 to compel union dues.
Another proposal approved by the legislature was SB 6229, requiring public employers to let unions conduct private meetings with newly hired employees lasting at least 30 minutes. The Washington-based Freedom Foundation has reported that emails obtained from the state Department of Social and Health Services (DSHS) revealed these meetings have been used by union officials to intimidate workers into signing membership cards.
A proposed amendment to SB 6229 would have required public employers to inform their workers that they are not required to attend these meetings, but it did not pass.
In anticipation of an unfavorable ruling with Janus, the legislature also approved SB 6296, which creates an affirmative opt-out policy for workers who don’t want to pay union dues. In other words, union dues are automatically deducted from their paychecks. Workers who want to change that have to go out of their way to do so.
“If your ‘T’ is not crossed and your ‘I’ is not dotted…it’s not accepted,” Shannon said. “It creates more layers to allow people to exercise that right. That’s not how a free society works, where you’re forced to be (a member) unless you say otherwise.”
However, the state lawmakers still won’t be able to prevent workers from denying public unions money they’ve collected in the past. Yet the fight over the right to work, even for public employees, won’t be over after Janus, says Freedom Foundations’ Director of Labor Policy Max Nelson. “One lesson we learned from Harris is that the Supreme Court decision makes it easy to think it’s the end of the debate on an issue. But here we are four years after the Harris case, we are still in court, we are still trying to educate workers about their rights.”
A lot of it depends on how the unions react, he added. “Unions have different leaders, and they have different strategies on how they respond. Some have provided better service. I think we may have particular unions that feel the pinch after Harris more accurately than others, and that’s obviously going to have some effect on the strength of those unions.”
He added: “We’re so far from being able to really gauge the impact of what Janus would be.”