Public Workers Could Stand to Benefit from Janus v. AFSCME

By George Will

Saturday, December 23, 2017

Seattle — It is protected by Washington state’s lopsidedly Democratic political class, which knows who butters its bread. It has been provided with bespoke law, tailored for its comfort. Nevertheless, the Service Employees International Union (SEIU) has been so avaricious in its objectives and so thuggish in its methods that it has been bested by the Freedom Foundation.

This small conservative outfit, which punches above its weight and is led by Tom McCabe, relishes the SEIU’s accusation that it has committed “tortious interference” with “business expectancy.” This melodious legalese means that the Foundation is guilty of informing SEIU members and fee-payers — many of them reluctant participants — of their right not to fill the SEIU’s coffers, from which flow contributions to Democrats.

“Individual providers” (IPs) are home health-care workers employed by those receiving the care — often the caregivers’ loved ones — who use their Medicaid stipends to pay the caregivers. In 2003, the Democratic-controlled Illinois state government imperiously declared thousands of these workers to be government employees simply because their pay comes from Medicaid, and gave the SEIU and a rival union the names and addresses of the workers to facilitate herding them into a union. The SEIU prevailed, often with duplicitousness, and began collecting a portion of the Medicaid payments as dues.

In 2014, however, the Supreme Court held that IPs, not being “full-fledged” government employees, have First Amendment rights of freedom of association and speech to choose not to support financially a union with whose activities they disagree. Washington’s state government makes IPs’ receipt of Medicaid subsidies contingent on association with the SEIU as their bargaining representative. So, the Foundation began notifying IPs of their right to opt out of SEIU fees — the state deducts the money and sends it to the union — that totaled $20.2 million in 2016.

When the Foundation sought information that is supposed to be public — lists of recipients of public funds — state agencies that are supposed to provide such lists “promptly” instead provided outdated lists 819 days later. Then the SEIU concocted a ballot initiative to carve an exemption from public-disclosure laws in order to keep IPs’ identities secret. The Democratic attorney general, exercising his power to write tendentious titles for ballot questions, labeled this a measure to “increase the penalties for criminal identity theft and civil consumer fraud targeted at seniors or vulnerable individuals.” Actually, it was designed to protect the SEIU from seniors and vulnerable individuals understanding and exercising their rights. It passed, thanks to more than $2 million of SEIU spending.

But former employees of SEIU and its “training” organization gave the Foundation some lists of IPs. The Foundation’s outreach to IPs and other SEIU-represented caregivers caused the union to hemorrhage up to 400 opt-outs a day, and eventually a total of 10,000. SEIU lawyers, evidently hoping to bankrupt the Foundation with litigation expenses, filed three basically identical lawsuits — they deposed Foundation staff 15 times — forcing the Foundation to spend $1.5 million defending itself. But the “tortious interference” argument failed in court, and now the Foundation is suing SEIU for abusing the judicial process, and is seeking reimbursement.

Out of court, the SEIU made the opt-out process opaque and burdensome for IPs, many of whom are unsophisticated, and tried to frighten them with false claims that their health care was endangered. The union called, and sent mailings to, McCabe’s neighbors and members of his church, telling them that he is “anti-worker” and — the Left’s McCarthyite accusation nowadays, regardless of context — ”anti-LGBT.” McCabe’s neighbors are mostly not kindred political spirits, but he has lived among them for 28 years and they remain unconvinced that he is Lucifer, son of the morning, fallen from Heaven.

The Democratic party and government-employees’ unions have a mutually lucrative relationship, so some blue states are shrouding in secrecy the identities of all public employees, lest the employees be made inconveniently aware of their rights. However, by next June, those rights might be enhanced.

The U.S. Supreme Court probably will overturn a 1977 ruling that extracting compulsory union “agency fees” from public employees does not violate their First Amendment rights if the fees do not finance political activities. (A meaningless demarcation: All government-union activities are inherently political; besides, money is fungible.) In Janus v. AFSCME, the court probably will recognize for all public employees the rights that the court’s 2014 decision protected for those who are less than “full-fledged” government workers. The unions will call this tortious interference with their business expectancies. Disinterested people will call it an affirmation of individuals’ constitutional rights.