Following the U.S. Supreme Court’s Janus decision overturning required union dues for government workers, the Washington-based Freedom Foundation has filed a class-action lawsuit on behalf of state workers to recover some of the money paid by certain in-home care providers.
Within the larger context of Washington’s labor laws, however, the fallout from Janus is unlikely to affect the collection of agency fees by private sector unions due to the legal argument involved. In fact, the state legislature’s current makeup indicates a push in the upcoming session to downplay the ruling’s effect in Washington.
“The court’s reasoning was pretty directly focused on public sector labor unions,” Freedom Foundation Labor Expert Maxford Nelsen said. However, he added “it certainly helps extends the precedent for that as policy….”
As of 2017, there were an estimated 290,000 public employees in Washington state represented by a union. In Janus v. American Federation of State, County and Municipal Employees (AFSCME), the high court ruled that these workers could not be compelled to pay “agency fees” for collective bargaining with the government because it constituted political speech. As a result, agency fees violated their right to free speech as articulated in the First Amendment.
However, that argument doesn’t work with private sector unions, Nelsen said. Although employees can’t be forced to pay union dues related to political activity, “in the private sector you’re not dealing with anything that touches on government policy. They can’t be forced to fund political activity, but they can be required to fund collective bargaining.”
The limited nature of the ruling’s impact was explained prior to the decision by plaintiff Mark Janus, an Illinois state child support specialist who recently spoke at two Washington Policy Center (WPC) Policy Summits.
WPC Director for Workers Rights Erin Shannon told Lens that in the long-term Janus could have an impact if public sector union priorities eventually shift to entice government employees into joining.
If that happens, it could create “a little wedge between the two (public versus private unions) because they deal with different realities. They will need to become more responsive, more accountable.”
According to the Bureau of Labor Statistics, in 2017 union members accounted for 18.8 percent of wage and salary workers in Washington. Although it’s an increase from 2014 when it was only 16.8 percent, it’s lower than the 1993 peak of 23.8 percent. The largest private sector union in Washington state is the United Food and Commercial Workers (UFCW) Local 21, with over 46,000 members. The largest public sector union is the Washington Education Association is the largest public school union in the state, with 85,000 members.
Private sector union policy is governed by the National Labor Relations Act (NLRA) passed by Congress in 1935. The federal legislation allows unions to collect agency dues but doesn’t require it. Washington state law allows unions to require these dues via collective bargaining agreements with the employer.
Barring a Janus-like U.S. court decision regarding private sector union dues, the only way for Washington’s law to change is either through the legislature or a ballot initiative, though both options are political nonstarters for now.
Earlier this year the legislature and Governor Jay Inslee passed several bills intended to protect public sector unions in anticipation of a Janus ruling. One of those laws set up an affirmative opt-out policy for public workers who don’t want to pay union dues – a policy overturned by Janus. The other requires government employers to allow private meetings between unions and newly hired employees for at least 30 minutes.
Meanwhile, efforts in the past to get right to work policies on the books have floundered. In 2015, Initiative 1395 failed to make the November ballot. A Senate proposal introduced in 2013 via SB 5935 would have made Washington a right-to-work state if workers’ compensation costs continued to increase, but it failed to receive a committee hearing.
However, Nelsen says right to work advocates shouldn’t hold their breath waiting for the U.S. Supreme court to change that, either. “I’m not aware of any legal theories at this point that would even go there or make a constitutional argument. Not to say somebody won’t come up with one. I just don’t think it’s very likely.”
If anything, Janus “legitimizes the concept” of right to work, he added. “More union representatives have this option than they did before. It provides support for expanding that into the private sector, (but) it doesn’t make any of the pathways doing that any easier.”
Shannon anticipates a renewed push to mitigate the effects of Janus in Washington state. If they’re successful Janus “will never be a toothless ruling because it’s the law, but it won’t be as significant a victory as some folks think it is.”