Since the U.S. Supreme Court’s Janus decision one year ago in which the court ruled that requiring public employees to pay union dues violated the right to free speech, the state legislature has attempted to blunt the effects of the ruling on public unions, while right-to-work advocates have filed lawsuits in response to some of that legislation.
It remains to be seen what direction political fight will go in the future and whether it will extend to the private sector.
Washington Policy Center’s (WPC) Director for Worker Rights Erin Shannon told Lens that the “political landscape does not exist in Washington currently for right to work to happen in the private sector. I just don’t see that landscape changing anytime in the near future, but that doesn’t mean that it couldn’t happen. If it could happen in Michigan, it could happen anywhere, but I don’t think we’re quite there in Washington yet.”
The impact of Janus on Washington’s public unions is not easy to gauge due to state legislation making it easier for the organizations to sign up members and harder for members to leave. According to the latest figures from the Bureau of Labor Statistics, union members made up 19.8 percent of all Washington workers, compared to 18.8 percent in 2017. There are now roughly 649,000 union members in Washington. The only states with higher percentages of the workforce in unions is Hawaii (21.3 percent) and New York (23.8 percent).
However, the figures include both private and public union members; the Janus decision only affected government workers. According to the Freedom Foundation, the Washington Federation of State Employees (WFSE) has had a 25 percent reduction in membership in the past year; it is one of the largest public unions in the state.
The Washington-based organization was among those who filed an amicus brief in the SCOTUS case in favor of plaintiff Mark Janus, an Illinois state child support specialist. The organization claims to have helped more than 50,000 government employees on the West Coast to opt out of union dues.
Freedom Foundation CEO Tom McCabe said in a statement that “Janus had one purpose only — to free public employees from forced union dues. Anything else is secondary.”
In anticipation of Janus, the Washington legislature last year passed several bills along party lines intended to bolster public unions after the SCOTUS 2014 Harris v. Quinn ruling that concluded unions couldn’t force home health care providers to pay dues or fees because they were “quasi-government” workers.
SB 6199 placed the state’s 35,000 health care workers completely in the private sector where unions can still force workers to pay dues. The other bill passed by the legislature was SB 6229, which mandated public employers allow unions at least 30 minutes with new government workers. HB 2751 attempted to make union membership a mandated “opt-out” system, but it was overturned by the Janus ruling.
These efforts continued into this year’s session during which state lawmakers approved SSHB 1575 that shields public sector unions and state agencies from public employees attempting to collect union fees paid prior to the Janus ruling; the Freedom Foundation filed a lawsuit to do just that shortly after the Janus decision. That case is currently pending in the 9th Circuit Court of Appeals.
SSHB 1575 also allows public unions to obtain consent from public workers to withdraw dues from their paychecks through recorded voice authorization, but it requires workers to cancel those withdrawals through written documentation and to adhere to the stipulations created by the union as part of the membership agreement. In the case of the Washington Federation of State Employees (WFSE), the provisions restrict members from opting out to a timeframe of 10 days annually once withdrawals have been authorized.
Freedom Foundation Director of Labor Policy Max Nelson told Lens the bill is designed “to make it as easy as possible for unions to initiate deductions from an employee’s wages and as difficult as possible (for them) to leave.”
Whether Freedom Foundation or the public unions involved in these lawsuits prevail, as Shannon contends, there’s nothing yet to suggest fallout from Janus will spill over to the private sector. Elsewhere in the country, there have been lawsuits filed against public sector unions alleging violations of the Janus decision. In May, the National Right to Work Foundation that represented Janus in his court case successfully got the Communication Workers of America (CWA) to settle a class action lawsuit filed in Ohio over an “escape period policy” clause. These lawsuits will likely lead to what Shannon described as a Janus 2.0 decision.
However, any case regarding private workers would be a separate argument, Nelson said. Also, the policy regarding private union dues has a longer history going all the way back to the 1935 National Labor Relations Act signed by President Franklin Roosevelt.
The challenge is that private sector workers have less of a leg to stand on, Shannon said. “Everything a public union does is inherently political. It’s compelled speech. It’s forcing us to pay for political speech. You can’t have that claim at all in the private sector. Therein lies the difference.”