Aug 2019 LL pages by Freedom Foundation

F R E E D O M F O U N D A T I O N T A K E S O N 5 S T A T E S [ 5 ] C E L E B R A T I N G T H E ‘J A N I V E R S A R Y ’ [ 6 ] U N I O N S E Y E P O R T L A N D F A S T - F O O D W O R K E R S [ 8 ]

LIVINGLIBERTY A PUBLICATION OF THE FREEDOM FOUNDATION | AUGUST 2019

INVALIDATED LAWSUITS HAVE THE POTENTIAL TO VOID NEARLY EVERY UNION MEMBERSHIP

Electronic Service Requested

Freedom Foundation PO Box 552 Olympia, WA 98507

cclass-action lawsuit filed during July by the Freedom Foundation and the National Right to Work Legal Defense Foundation on behalf of several California In-Home Supportive Service (IHSS) providers will provide the latest test of whether the U.S. Supreme Court’s 2018 ruling in Janus v. AFSCME invalidated the membership card of virtually every unionized public-sector worker in the country. The suit, filed on July 10 in U.S. District Court for the Southern District of California, names United Domestic Workers (UDW) AFSCME Local 3930 and California State Controller Betty Yee as defendants. It is one of several such actions filed in Washington, California and Oregon in the year since the Janus ruling was issued asserting it placed stringent new demands on how unions can recruit and retain members — limits the unions vehemently deny because they threaten their very existence. The courts have recognized since at least 2014 that compulsory union dues and fees violate the First Amendment rights of individual providers being compensated by Medicaid to care for a loved one. But last

By ASHLEY VARNER VP for Communications

summer’s hotly contested Janus decision affirming the same protections for all public employees included additional verbiage stipulating that unions must inform those who agree to pay dues that their decision amounts to a waiver of their Constitutional rights. Not coincidentally, that language was lifted almost word for word from an amicus brief submitted by the Freedom Foundation encouraging the justices to not only recognize the right of government workers to eschew union dues and fees, but ensure the ruling is enforced, too. The Freedom Foundation and the Right to Work Legal Defense Foundation filed the first lawsuit in the nation based on that argument last August — barely a month after Janus — in Belgau v. Inslee, et. al, on behalf of six Washington state workers. “The wording in Janus is unambiguous,” said Eric Stahlfeld, chief litigation counsel for the Freedom Foundation. “A public employee allowing his or her dues to be taken is waiving a constitutional right, which can only be done voluntarily and knowingly.” And since it’s impossible for a worker to have knowingly waived a right that wasn’t articulated by the court until the Janus ruling was issued, it follows that all union membership cards signed prior to June 27, 2018, are invalid — as are those signed after the ruling, unless it can be shown the worker was fully informed of the consequences of his or her decision. “The unions could see the handwriting on the wall,” Stahlfeld said. “When they realized the ruling in Janus wasn’t going to go in their favor, they launched a campaign to sign up as many new members as See VOID Page 4

VOLUME 30 | ISSUE 8

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Publisher: Tom McCabe Editor: Jeff Rhodes

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LIVING LIBERTY

A PUBLI CAT I ON OF T HE FREED OM FOU NDATION

CONTENTS PAGE 3

PAGE 4

THE CASE FOR FREEDOM

LEADERSHIP MEMO

By KRIS MAHER Reprinted from the WALL STREET JOURNAL

By TOM McCABE We Don’t Bust Unions. We Just Make It Easier forThem to Bust Themselves.

New Rule to Test Union Memberhip, Finances. STAFF REPORTS Suit Argues Califonia Law Can’t Trump SCOTUS.

PAGE 5

What They Said & What They Meant

LITIGATING FREEDOM By JEFF RHODES Freedom Foundation Taking On Five States Over Dues-Skimming.

PAGES 6-7

JANI-

VERSARY

Freedom Foundation marks the one-year anniversary of the U.S. Supreme Court ruling in Janus v. AFSCME by educating public employees in three states.

PAGE 8

OREGON UPDATE

By BOAZ DILLON Unions Eye Portland Fast-Food Workers. By JASON DUDASH Freedom Foundation Reaches Out to Teachers on Summer Vacation.

“We’ve got to realize the people who brought us the weekend – unions – are going to bring us a long overdue raise in America. And I’m proud of standing up for unions. I have a plan to reinvigorate collective bargaining so we can increase wages, finally.” JAY INSLEE

Washington Governor/ Candidate for President, in his very first answer during the Democratic candidate debate. June 25, 2019

Nothing in this publication should be construed as an attempt to aid or hinder the election of any elected official or candidate.

STAFF REPORTS Withe Appointed to Oregon Civil Rights Advisory Board Position.

PAGE 9

BEST OF THE BLOG

PAGE 10 FREEDOM IN ACTION

By JEFF RHODES Reprinted from RED STATE

A Year After Janus, Unions Fighting Even Dirtier for Their Very Survival.

By TREY KOVACS

Reprinted from the Competitive Enterprise Institute

State Legislatures Seeking to Undermine Supreme Court’s Janus Ruling.

Freedom Foundation’s Friends, Foes Weigh in On Our Actions.

PAGE 11

FREEDOM IN THE NEWS

PAGE 12

ACTION TIMELINE

A PUBLI CATION OF THE FREED OM FOU NDATION

WE DON’T BUST UNIONS. WE JUST MAKE IT EASIER FOR

UNIONS TO BUST THEMSELVES

he Freedom Foundation is often accused of being in the union-busting business. We are, after all, locked in a life-or-death struggle with the unions representing government workers over the future direction of this country, and much of the rhetoric coming from both sides happily anticipates a day when the other is no longer around to resist. I’m certainly no stranger to hyperbole, but as an organization, our official position is slightly more nuanced. As a practical matter, the Freedom Foundation does not have — nor will it ever have — the power to bust unions. In fact, as a passionate advocate for free choice, we would almost certainly oppose any law that prevented workers from organizing or bargaining collectively. But the rights of those who choose not to are just as sacred, and it’s they who currently need the Freedom Foundation’s help to defend them. Our only weapon in this struggle is the truth. And we’re confident that by wielding it often and well, unions will eventually bust themselves far more effectively than we ever could. Government employee unions have always been on the Freedom Foundation’s radar screen because, by definition, they depend for their very existence on policies that grow the size and limit the transparency of government. In 2007, for example, the Freedom Foundation represented the plaintiff in Davenport v. Washington Education Association, a landmark labor reform lawsuit in which the U.S. Supreme Court unanimously held that the First Amendment allows a state to require public-sector unions collecting “agency” fees from non-union employees to obtain permission from the employees before using the money for political purposes. By current standards, the result of the case was a concession so insignificant you almost wonder why the teachers’ union fought it all the way to the highest court in the land. But when you’re relying on a dam of lies to confine millions of dues-paying workers in a pool of servitude, no breach is too small to warrant attention. Recognizing that every governmental reform they sought would ultimately be thwarted by public-sector unions for whom “limited, accountable government” pose an existential threat, the leaders of the Freedom Foundation had already made exposing the abuses of government unions the organization’s primary objective even before I arrived as CEO in 2013. Even so, my first act upon arriving was to narrow our focus even further. Nowadays, it’s the only thing we do. It’s important to note, however, our beef is with public-sector — not private-sector — unions, because the two are fundamentally different animals.

In theory, at least, a company in the private sector can decide for itself whether to By TOM McCABE, CEO negotiate with a union over the wages and working conditions of its employees. But both sides understand going in that there are limits. As much as they’d love to ask for the moon, privatesector union leaders understand that increased wages can only be absorbed or passed on to the consumer for so long before the employer loses market share to its competitors and profits shrink. And without profits, there can be no business, no employees and no union. Such limits, however, do not exist in government. No competitor can offer its services at a cheaper rate, and wages aren’t tied to profits. Instead, they’re tied to taxes, which can seemingly always be raised — particularly when the union hedges its bets by using the majority of what it siphons off in dues money to grease the palms of politicians eager to do their bidding rather than the public’s. Which brings us back to the question of union busting. Is it our goal to destroy unions? Not necessarily. What were really trying to do is reduce their operating margins. When union membership is no longer mandatory and workers are free to exercise real choice, unions will have to resort to the standard techniques of improving service and lowering costs to attract and retain consumers. As much as they may wail about it, unions could easily cut their overhead costs by 80 to 90 percent just by getting out of politics and confining their activities to representing their members in collective bargaining. And we’d be perfectly happy with that. Unfortunately, unions are no more willing to accept an arrangement that reduces their political clout than leftist politicians are with being denied access to an unlimited supply of someone else’s dues dollars. We’re all about free choice, and ultimately the choice of whether to play by the same rules as everyone else and survive is up to the unions. Or they can continue down the same road they’re on now — in which case it will be their own hubris, not the Freedom Foundation, that busts them.

LEADERSHIP

MEMO

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We’re all about free choice. And ultimately the choice of whether to play by the same rules as everyone else and survive is up to the unions.

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THE CASE FOR FREEDOM NEW RULE TO TEST UNION MEMBERSHIP, FINANCES By KRIS MAHER Reprinted from the WALL STREET JOURNAL July 3, 2019

wo of the nation’s most powerful unions face a potential loss of members and millions of dollars when a Trump administration rule takes effect Friday in the latest big test for organized labor. The rule will prohibit states from automatically collecting dues from home-care workers’ paychecks. About eight states currently allow the unionization of people who provide in-home care to the disabled and elderly and whose pay is subsidized by the government. The Service Employees International Union and American Federation of State, County and Municipal Employees represent the vast majority of unionized home-care workers. The Trump administration announced its plan in May to undo a 2014 rule that permitted the collection of dues through automatic payroll deductions from workers paid through Medicaid. Conservative groups have long argued that home-care workers are often coerced into joining unions. “If unions lose the ability to collect dues via payroll deductions, caregivers will have much more control over whether they choose to financially support a union or not,” said Maxford Nelsen, director of labor policy for the Freedom Foundation, a conservative group in Olympia, Wash. The SEIU, which represents 800,000 home-care workers, said it doesn’t coerce people into joining. It helps raise pay and provide training for one of the nation’s fastest-growing jobs, it said. The new rule is “a very transparent attack on a particular group of workers,” said Meghan Finegan, a spokeswoman for SEIU. “Other workers who are paid with public dollars and are part of a union like

police and firefighters also use payroll deduction.” Changes to how fees are collected can have a big impact on union finances and membership. The Supreme Court last June banned the mandatory collection of dues from public employees in unionized workplaces. Since then, the number of government workers belonging to unions has edged down slightly, based on the latest government data. It is too soon to know whether states that currently collect dues from home-care workers, including California, Washington, Illinois, Minnesota and Vermont, will stop doing so. The attorney general in California, joined by attorneys general in four other states, sued the Trump administration in federal court in San Francisco in May to block the new rule. That case is pending. A spokeswoman for the Department of Health and Human Services declined to comment on the lawsuit. The administrator of the Centers for Medicare and Medicaid Services said in May that the new rule was intended to ensure that providers received their full payment. Mr. Nelsen, the conservative group’s policy director, said he was combing through the federal code two years ago when he found a 1972 law that said Medicaid payments must be paid directly to providers. He said he brought the law to the attention of Trump administration officials. The 1972 law was intended to prevent fraud, but it also makes it illegal

VOID: LAWSUITS COULD INVALIDATE MILLIONS OF UNION MEMBERSHIPS Continued from page 1 possible and pressured current members to sign renewal cards.” When workers subsequently learned about the Janus ruling, many decided to exercise their newly recognized right to opt out of union participation. In such cases, however, standard practice for the union was to terminate the requester’s membership but continue deducting dues as long as there was a signed membership card in force. The worker was usually told he or she could cease dues payments only by re-applying during a narrow window of a few days in conjunction with the anniversary of their having signed a membership card. “The unions assert that a signed membership card empowers the state to deduct dues on their behalf for as long as the contract is in force,” Stahlfeld explained. “We maintain such contracts were never valid in the first place unless the union made a

point of informing the worker about the rights they were waiving — something they almost never do.” To prove the point, the California suit includes one plaintiff who signed her membership card nine years prior to the Janus ruling and three others coerced to sign in the months after it was issued. The Freedom Foundation, which has offices in California, Oregon and Washington, has filed similar lawsuits in all three states. “Union dues for millions of public employees have been mandatory in many states for decades,” Stahlfeld said. “Janus affirmed they must be voluntary — a move that could potentially cost the unions billions of dollars every year. “They’re desperate to keep the spigot of other people’s money open,” he said. “But the wishes of a powerful special interest don’t entitle it to simply ignore the clear intent of a long-overdue Supreme Court ruling.”

to deduct dues on behalf of a union, Mr. Nelsen said. According to a study by the group, eight states received nearly $150 million in dues from 358,000 home-care workers receiving Medicaid payments in 2017. Miranda Thorpe, 54 years old, of Redwood, Wash., said she had dues that amounted to 3 percent of her wages withheld without her consent four years ago when she was taking care of her daughter who was born with a developmental disability. “The money is going to the state, and the state is making sure that the union is getting a part of it,” said Ms. Thorpe. When she complained that she didn’t want to belong to the union, the dues collection stopped, she said. Others say they need the union’s support. Adarra Benjamin, 25, of Chicago, said she got a check for $1,200 in back pay this year thanks to the SEIU. The union had successfully negotiated with the state legislature in 2017 to give 49,000 home-care workers a 48-cent-an-hour raise, but the increase had been blocked from taking effect by former Gov. Bruce Rauner. In March, Gov. J.B. Pritzker’s administration agreed to pay the wage increase and back pay amounting to $30 million, according to the union. Ms. Benjamin, who cares for her greatgrandmother and a client with cerebral palsy, now earns $13.48 an hour. “Honestly, the back pay was wonderful,” said Ms. Benjamin. “Without the union, there is no way to have a voice.”

SUIT ARGUES CALIFORNIA LAW CAN’T TRUMP SCOTUS

ppair of California public employees filed suit on July 22 challenging whether last year’s landmark ruling by the U.S. Supreme Court in Janus v. AFSCME prohibiting mandatory union participation can be undercut by wording inserted into a standard collective bargaining agreement. Matthew Wilkins, an employee of the Ventura County Fire Department, and Anna Aguirre, who works for the Los Angeles County Department of Public Social Services, are seeking to drop out of SEIU 721, the union representing their respective bargaining units. Both signed membership cards with the union prior to the court’s June 27, 2018, decision in Janus but subsequently requested their release from the union and an end to all dues deductions. SEIU 721 refused to honor their request, citing a provision in its collective bargaining agreements with Los Angeles and Ventura counties that binds workers to the union as long as its current CBA remains in force. Wilkins and Aguirre were told SEIU 721 would continue taking dues unless they re-submitted their request during an arbitrarily determined opt-out window of a few days before and after their respective CBAs expired.

LIVING LIBERTY

A PUBLI CATION OF THE FREED OM FOU NDATION

LITIGATING FREEDOM

What They

What They What he said: “It’s strange that the Freedom Foundation has nothing to do with actual freedom of the overwhelming majority of our nation.”

FREEDOM FOUNDATION TAKING ON FIVE STATES OVER DUES SKIMMING

Ggroup of 10 West Coast home caregivers — five from California, three from Oregon and two from Washington — on June 20 took legal action to end the deduction of union dues and political contributions from their Medicaid payments. With joint legal representation from the Freedom Foundation and National Right to Work Legal Defense Foundation, the caregivers filed a motion to intervene in federal litigation brought by a coalition of states — including California, Oregon, Washington, Connecticut and Massachusetts — against the U.S. Department of Health and Human Services (HHS) in the Northern District of California. “The determination of these caregivers is truly inspiring,” said Maxford Nelsen, the Freedom Foundation’s director of labor policy. “It takes a lot of guts,” he said, “to stand up to the repeated attempts of thuggish unions like SEIU and AFSCME and their political cronies to bully and exploit those selflessly caring for the most vulnerable among us. Yet caregivers continue to courageously fight back.” The underlying lawsuit was filed by the California-led coalition after HHS in May formally repealed an illegal regulation that sought to allow states to divert money to unions from Medicaid payments to home caregivers serving elderly and disabled clients. It marked the 50th lawsuit California’s Attorney General, Xavier Becerra, has filed against the Trump administration. Since 1972, federal law has prohibited states from making payment for Medicaid services to anyone but the providers of those services. Beginning in the 1990s, however, certain states allowed the unionization of home caregivers and subsequently began deducting union dues and political contributions from their Medicaid payments. In 2017, at least eight states deducted $147 million in union dues from the Medicaid payments of nearly 360,000 caregivers. Between 2000 and 2017, about $1.4 billion was diverted to unions in this manner. While the U.S. Supreme Court in 2014 struck down states’ mandatory union dues requirements for home caregivers in its Harris v. Quinn ruling as an unconstitutional “scheme,” states and unions subsequently implemented additional coercive schemes to continue withholding funds from caregivers’ Medicaid reimbursements against their will. For instance, each of the caregivers filing to intervene currently has union dues and/or political contributions skimmed from their Medicaid payments against their will and has had their requests to cancel the deductions rejected by their union.

By JEFF RHODES Managing Editor

Many of the caregivers only authorized the deductions in the first place after being misled or pressured by union organizers at state-mandated, captive-audience meetings. Other caregivers have had their signatures forged on membership forms by union organizers, triggering nearly irrevocable dues deductions from their Medicaid payments. In Washington, SEIU 775 in April paid $28,000 to settle a federal lawsuit brought by a caregiver after a union organizer forged her signature. If the court grants their motion to intervene, the caregivers will contend the 2014 administrative regulation adopted by HHS was illegal to begin with because it contradicted a clear federal statute prohibiting the “reassignment” of Medicaid provider payments to third-parties like unions that provide no services to Medicaid clients. They will further seek to defend HHS’s decision to rescind the regulation. On the other side, two unions — SEIU Local 503 in Oregon and United Domestic Workers/ AFSCME Local 3930 in California — and nine caregivers (mostly current or former union officers) from various states have moved to intervene on behalf of the state coalition and seek to preserve states’ ability to divert funds from providers’ Medicaid payments to unions. If states and unions are forced to stop skimming funds from caregivers’ Medicaid payments via payroll deduction, nothing will prevent caregivers from choosing to pay union dues via credit/debit card, check or electronic funds transfer, just as most Americans pay most bills and memberships. During the public comment period last year, the Freedom Foundation submitted formal comments in support of HHS’s proposal to remove the illegal regulation and helped dozens of West Coast caregivers do the same. “It’s heartening to see federal regulators finally taking action to put a stop to the coercive and illegal practices enabled by payroll deduction of union dues from Medicaid payments,” said Nelsen. “Assuming federal courts find the law means what it says and HHS takes meaningful action to enforce it,” he added, “caregivers will soon have more control over their money and taxpayers can have greater confidence that Medicaid dollars are serving the intended beneficiaries and not subsidizing special interest groups.” The regulation at issue was formally repealed on July 5.

What he meant: “I either don’t understand or STEVE FAAS Seattle, Wash. I’m straight up lying. It couldn’t Facebook post, June 25, 2019 be more obvious the Freedom Foundation is all about freedom. The organization targets public-sector unions precisely because they deny freedom of choice to their members. But even worse, they use other people’s dues money to corrupt the governing process and advance an uber-liberal political agenda that would impose a laundry list of policies designed to constrain the liberty of the “overwhelming majority” of Americans.” n n n

She said: “(The Freedom Foundaiton) isn’t patriotic. If they were, they’d make sure every American was well taken care of instead of spending their wealth on power and the SHERRY CONWAY ruination of the USA.” Tacoma, Wash. Multicare Health System retiree Facebook post, June 20, 2019

She meant: “Natrually, in my concept of patriotism, I get to define what it means to be well-taken care of rather than the individual. Nothing would ruin the USA faster than letting people run their own lives.” n n n

She said: “Freedom Foundation = Ultra rightwing racists, sexists, terrorists, cowardly ( no other kind) bullies” She meant: “I don’t even know what the Freedom Foundation does DIANE NELSONSKI and I lack the Seattle, Wash. intellectual Facebook post June 12, 2019 curiosity to find out. So instead, I’ll just lob a few of the the usual liberal catch-all insults and call it a day.”

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WASHINGTON: ANOTHER YEAR, ANOTHER AGENCY INFLICTING A LAWSUIT ON ITSELF BY VIOLATING FREE SPEECH RIGHTS

hortly before the Fourth of July holiday, the Freedom Foundation conducted a special outreach effort to public employees in honor of the one-year anniversary of the U.S. Supreme Court’s ruling in Janus v. AFSCME, which struck down mandatory union dues requirements for public employees as unconstitutional. As part of the effort, Freedom Foundation staff visited government office buildings across the West Coast to distribute informational pamphlets and speak with public employees about their First Amendment right to leave their union. In Oregon, Freedom Foundation staff helped employees celebrate the “Janiversary” with coffee and donuts. Meanwhile, in California, SEIU organizers harassed several Freedom Foundation canvassers. And in Washington, Freedom Foundation staffers were ejected from a state agency building, effectively suppressing our right to engage in free speech about a U.S. Supreme Court decision protecting freedom of speech. During the lunch hour on June 27, three Foundation staffers, including myself, went to the Washington Department of Labor and Industries (L&I) building in Tumwater. We checked in at the front desk, telling the receptionist we intended to distribute nonpolitical, noncommercial informational material to employees and asking if the hallway outside the building cafeteria was a public space we could use. She told us that would be fine and said we could proceed. Accordingly, we began handing out pamphlets to people entering and leaving the cafeteria. Some took the material, others refused it, some told us

By MAXFORD NELSEN Labor Policy Director

they had already opted out, and others engaged us in brief conversations. After roughly 10 or 15 minutes, a Washington State Patrol trooper approached and asked what we were doing. We explained we were distributing noncommercial, nonpolitical informational material about public employees’ constitutional rights. We let him know we had checked in with the front desk and had been informed it was permissible for us to distribute pamphlets outside the cafeteria. The trooper gave us no indication anything was amiss and told us we could proceed. About 15 to 20 minutes later, as we were running low on pamphlets, we were approached by two women from the human resources department accompanied by three to five Washington State Patrol troopers. The women asked whether we had submitted an application to distribute pamphlets. We explained that, although we hadn’t submitted an application, both front desk and security staff were aware of our activity and had confirmed our right to be there. They replied that department policy required us to submit an application. When pressed, though, they admitted we were, in fact, in a public area of the building. Nevertheless, they insisted we leave the premises immediately, which we did. This isn’t the first time Freedom Foundation staff have been booted from state agencies for engaging in free speech in the lobbies of taxpayer-funded facilities. In July 2018, the Freedom Foundation filed suit against the Washington State Department of Ecology in federal court after it kicked out staffers dressed as Santa Claus distributing informational material to employees the previous December. Unfortunately, L&I has chosen to continue this pattern of unconstitutionally suppressing speech it doesn’t like while going out of its way to facilitate union speech of which it approves. Like the Department of Ecology, L&I may soon be defending its actions in federal court.

OREGON: COFFEE, D

une 27 marked the one-year anniversary of the U.S Supreme Court’s ruling in Janus v. AFSCME that public employees can no longer be required to pay any form of union dues against their will. Almost before the ink on the decision was dry, the Freedom Foundation began to execute its plan to make sure all public employees on the West Coast were informed of their newly affirmed rights. This campaign included direct mail, emails, billboards, commercials, door-to-door canvassing, office visits and now even texting — any and every way to ensure public employees are informed about the landmark decision and how it applies to them. Because of the Freedom Foundation’s efforts, more than 15,000 public employees in the state of Oregon have chosen individual liberty and left

JANI-

LIVING LIBERTY

VERSARY  Freedom Foundation canvassers mark the one-year anniversary of the U.S. Supreme Court ruling in Janus v. AFSCME by educating public employees in three states.

DONUTS AND A SIDE ORDER OF TRUTH By BOAZ DILLON Policy Analyst

their unions. Oregon public-sector unions have experienced some of the largest membership declines in the entire nation — including the Service Employees International Union local 503 (SEIU 503), whose membership has plummeted more than 26 percent, and the Oregon School Employees Association (OSEA), which lost an even more impressive 31 percent of its members. We believe the unprecedented number of workers choosing freedom from their unions is something worth celebrating. That’s why on the morning of the anniversary, a number of our canvassers kicked off the celebration by handing out more than eight

dozen donuts paired with fresh coffee to public employees on their way in to work. That was followed later in the day by our mailing out more than 100,000 celebratory emails to public employees explaining what we mean by “Janiversary” and encouraging those we’ve helped opt out to share that same freedom with their colleagues. Throughout our celebration on Thursday, as well as through our entire outreach campaign, public employees were happy to see us and are enthused by the message we bring. It’s a simple message of reclaiming their liberty, taking back their voice, and saving hundreds of dollars a year while doing so. That message is certainly made sweeter and easier to swallow when paired with donuts and coffee.

A PUBLI CATION OF THE FREED OM FOU NDATION

CALIFORNIA: WHEN EVERYTHNG ELSE FAILS, CRY RACISM

n June 27, Freedom Foundation canvassers took to the streets of Sacramento to speak with public employees on the first anniversary of the U.S. Supreme Court’s ruling in Janus v. AFSCME that public employees can no longer be compelled to pay union dues or fees. While most of the workers were happy to hear from us, there was a faction that was not so happy that we were there. Operatives from SEIU 1000, which represents more than half of all state workers in California, approached one of our canvassing teams and began harassing them. The exchange started amicably, with our canvassers exchanging pleasantries and engaging in a spirited debate about the necessity of union membership for some employees, while also acknowledging some may prefer to retain their union membership for one reason or another. Our canvassers explained that the Janus decision was not about destroying unions; it was about the First Amendment rights of public employees who may not agree with the way that unions spend their dues dollars. By SAM COLEMAN This explanation California Outreach Director did not satisfy the SEIU representatives, who claimed members leaving their union would weaken their ability to represent and bargain for their members. Clearly lost on them was the fact that if their members were leaving en masse, the problem was most likely with the unions’ ability to represent their interests in the first place. Once this line of logic failed, SEIU moved on to another common tactic. They made it about race — more specifically, our canvassers’ race. One of the three representatives crowding around our canvassing team said, “Unions have historically won gains for the working class. Where unions go, salaries rise. This is most true for women — especially women of color.” They continued to say, “Groups that you’re working for are funded entirely by two or three old white men. Are those the kind of people you want to work for?” Our canvassers maintained their calm demeanor but were clearly offended by this statement. All five of the canvassers currently working in the Sacramento area are young women of color who are as proud to work with us as we are to have them. One canvasser, whose name we have shortened to C.L to preserve her privacy, observed, “I don’t believe it’s fair to reduce people to statistics … You really shouldn’t be playing the race card here.” After a short back and forth with the union representatives, at which point all five of our canvassers were involved, they retreated back to their building. Their gambit had failed, and their usual talking points had fallen on deaf ears. We continued to canvass at that building until the “Janiversary” event was over without so much as a peep from SEIU. We’re proud to work with such bright young women who are dedicated to the cause of informing workers about their constitutional rights under the Janus decision. Freedom of speech is imperative in any functional democratic nation, and it’s clear our canvassers were heard loud and clear.

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UNIONS EYE PORTLAND FAST-FOOD WORKERS

ortland has now become Ground Zero for a new trend in organized labor — unionizing fast food employees. That union intervention would hurt rather than help the workers by causing employers to reduce the number of these entry-level positions they’re able to offer never figures into their reasoning. In Portland, for example, Burgerville employees from several different locations decided to organize and form their own labor union, the Burgerville Worker’s Union (BVWU), which has now become the first of its kind in the nation.

By BOAZ DILLON, Policy Analyst

Despite its federal recognition, BVWU has done literally nothing for the employees other than drive a wedge between them and their employer. First, despite already being paid 20 percent better than their counterparts already, the unionized Burgerville employees are demanding a ludicrous $5-an-hour wage increase. But ever

Oregon Update

Highlighting the successes being achieved by the Freedom Foundation’s office in the Beaver State.

since the union has been in negotiations with the employer, not a single employee has seen a pay raise. And a pay increase isn’t the only demand the fast-food union has failed to deliver on. BVWU has also pushed for affordable health insurance, childcare and “sanctuary” workplaces — all to no avail. Despite these manifest failures, workers at another Portland fast-food restaurant from a separate chain are also following BVWU’s lead and making outrageous demands. Little Big Burger, a regional chain spanning four states including Oregon, has had employees from one of its Portland locations unionize. The union has pushed many of the same demands as BVWU and has even taken to the streets to march and make its voice heard. But to date, BVWU’s cries have fallen on deaf ears, seeing that management still refuses to even recognize the union. Instead, these unions are just going to accelerate momentum towards automation in the fast-food industry. In fact, a number of chains have already started installing self-serve ordering kiosks, overnight ovens and automatic burger-flipping robots to replace human employees due to the high turnover rate in the industry. A spokesperson for the Little Big Union at a recent rally stated, “Soon there won’t be a burger flipped in (Portland) that isn’t flipped by a union hand.” And she’s absolutely right, too. Just not in the way she’d like to be.

WITHE APPOINTED TO OREGON CIVIL RIGHTS ADVISORY BOARD POSITION

aron Withe, director of the Freedom Foundation’s Oregon operations, was appointed by the U.S. Comission on Civil Rights to its Oregon Advisory Committee. The agency’s mission, according to its website, is to: “...inform the development of national civil rights policy and enhance enforcement of federal civil rights laws.” Withe said he was gratified but surprised by the news insasmuch as appointees serve six-year terms, meaning most of the current committee members were appointed under the Obama administration. “I can’t think AARON WITHE of any American whose civil rights are under more immediate assault,” he said, “than government employees whose rights to opt out of union bondage are being denied by their union — aided and abetted by their elected representatives. “The work of the Freedom Foundation is entirely within the scope of the Commission on Civil Rights,” Withe said, “and I’m hopeful my service on the Oregon Advisory Committee will call attention to the injustices they face in addition to any other victims of discrimination.”

FREEDOM FOUNDATION REACHES OUT TO TEACHERS ON SUMMER VACATION

he Freedom Foundation utilizes every tool at its disposal to convey a message of liberation to public employees everywhere. This summer, the Oregon office is focusing much of its outreach efforts on the state’s teachers. The campaign includes door-todoor canvassing, emails, targeted mailers, texting, social media campaigns … and now, some flashy billboards. During June, these new billboards were erected across the state with a simple message to teachers — they deserve a vacation (permanently) from the Oregon Education Association. For years, teachers were required to be a part of their tyrannical unions in order to keep their jobs. However, because of the U.S. Supreme Court’s landmark ruling last year in Janus v. AFSCME, public employees — including teachers — can no longer be forced to pay union dues or fees. Even so, according to a recent

By JASON DUDASH, Outreach Coordinator

national poll conducted by YouGov, more than three out of every four teachers still haven’t even heard about Janus v. AFSCME, and more than half aren’t aware how it applies to them. However, those numbers do not accurately reflect populations on the West Coast, where the Freedom Foundation works to actively inform teachers and other public employees about their newly affirmed rights. There is a very clear trend in the Pacific Northwest. When teachers are told they can be free of the OEA’s intimidation, bullying and fear-mongering, allowing them to solely focus on why they became teachers in the first place — all while keeping more than $1,000 a year in their paychecks — they’re only too eager to leave.

LIVING LIBERTY

A PUBLI CATION OF THE FREED OM FOU NDATION

BEST OF THE BLOG FROM THE FRONT: Report from a Freedom Foundation canvasser who attended a mandatory “training session” on May 16, 2019, for four new Medicaid homecare providers in Vancouver during which they were subjected to a 30-minute “captive-audience” meeting with a union operative.

A YEAR AFTER JANUS, UNIONS FIGHTING EVEN DIRTIER FOR THEIR VERY SURVIVAL By JEFF RHODES Reprinted from REDSTATE.com JUNE 24, 2019

ne year ago this week, the U.S. Supreme Court issued a ruling in Janus v. AFSCME that should have allowed public employees like Mike Stone to sever ties with the Washington Federation of State Employees (WFSE) and still keep his job as a support enforcement officer with the Washington State Division of Child Support. But they’re discovering that, in the bareknuckle world of government employee unions, having the law on your side is one thing; forcing your tormenters to comply with it is another matter entirely. Stone has long been at odds with WFSE over how it spent the hundreds of dollars in dues money the state deducted from his paycheck every year on the union’s behalf. Rather than wasting its resources advancing a political agenda, he wanted the union to devote its energies to wages, benefits and workplace grievances. But for many years public employees’ only choices were to: n stop paying dues — which would almost certainly result in a firing; n opt out of full membership, but still pay a so-called “agency fee” — determined by the union to cover collective bargaining costs but ostensibly not political activities; or, n shut up and just go along. Janus, however, gave them a fourth option. On June 27, 2018, the court ruled that mandatory union dues and agency fees are a violation of a public employee’s First Amendment rights of free speech and association. Further, the majority opinion specifically prohibits dues deductions until the union obtains the employee’s affirmative consent and informs them that agreeing to pay dues constitutes a waiver of their First Amendment rights. It is this element of the decision that union bosses are fighting most vigorously. Stone informed WFSE shortly after the Janus ruling was issued he wanted no further dues or fees deducted from his wages, but the union denied his request, claiming the terms of a revised membership card he signed prior to

the decision limited his ability to opt out to only a few days each year. Stone then turned to the Freedom Foundation for legal assistance and, on Aug. 23, 2018, he and six other Washington state employees filed a class-action lawsuit in federal court against WFSE, Gov. Jay Inslee and the heads of the state agencies for whom the employees work, demanding the unions recognize their rights under Janus to opt out and refund all illegally confiscated dues with interest. The lawsuit contends that a membership agreement in effect when the Janus ruling was issued — or executed since — is invalid unless the union can prove the worker affirmatively and knowingly waived his or her right not to pay. The case is currently before the 9th Circuit Court of Appeals and may yet find its way to the U.S. Supreme Court, which will likely take a dim view of unions ignoring its handiwork. If that happens, the case has the potential to enforce what the justices intended in Janus — limiting union participation to only those who don’t require coercion to join. But this is just one of many instances of public employees having to fight to stop dues deductions from their paychecks — a reality that puts the lie to union claims that Janus had little impact on their membership numbers and that workers are joining up and paying dues in record numbers. If that were true, why are the unions still paying millions of dollars a year to suppress the truth and bully members who might consider straying from the fold? In the meantime, the Freedom Foundation has already helped more than 50,000 government employees in Washington, Oregon and California opt out of union dues and fees, and there are almost certainly many more eager to follow their lead once the union-erected wall of obstruction and obfuscation has been toppled once and for all. Jeff Rhodes is managing editor of the Freedom Foundation.

The union rep arrived really early, along with someone who was evidently a caregiver in training. I had an opportunity to talk to the first attendee to arrive and give her a thorough explanation of our material. Then I approached the next one, who had entered and already heard the tail end of my conversation, so I started over with her. She didn’t think she wanted to join the union, so I let her know she didn’t need to go in and hear the union pitch. However, she decided to go in anyway. The room they go into is quite small, and evidently there were only five chairs because the new IP in training was left standing and actually left the door open. Unfortunately, I couldn’t hear the conversation, however I could see the expression on the one IP that thought that she wouldn’t join. Part of the time she didn’t look too happy, and other times she looked pretty bored as she listened to the union. The youngest one later said she was 19 and was going to talk to her mother about union membership. Another was going to talk with her husband, and the other two hadn’t made up their monds. So even the one that thought she wouldn’t join wasn’t completely sure on her decision now. The good news was at least apparently none of them had signed up yet, and hopefully as they look into it more they will decide not to join. Also, as one of them was leaving, she did thank me for all my help. It’s nice to know your effort is appreciated. JENNIFER DICKSON Vancouver, Wash.

LIVING LIBERTY

A P U BL IC AT I ON OF T HE FREEDOM FOUNDAT I ON

FREEDOM IN ACTION STATE LEGISLATURES SEEKING TO UNDERMINE JANUS RULING By TREY KOVACS Reprinted from the COMPETITIVE ENTERPRISE INSTITUTE June 27, 2019

emocrats in Congress are pushing the Protecting the Right to Organize (PRO) Act HR-2474, which seeks to strip workers of long-held protections and bolster the coercive power of labor unions. Labor unions continue to deny the First Amendment rights of public employees despite the U.S. Supreme Court’s landmark decision in Janus v. AFSCME, which ruled one year ago that non-union workers cannot be compelled to pay union fees as a condition of employment. Many public employees who want to drop their membership have found it can be exceedingly difficult to do so. There have been numerous instances of labor unions enforcing invalid window periods that prohibit workers from revoking their membership outside a narrow period of time that only comes around once per year or less. But labor unions are not the only obstacle for workers who may want to exercise their Janus rights and end union payments. Like most Americans, a majority of public employees do not eagerly await Supreme Court decisions or take the time to read and analyze them. As such, likely the greatest impediment to workers who would like to leave their union is a lack of knowledge. A survey conducted by TeacherFreedom. org finds 77 percent of teachers had not even heard of Janus v. AFSCME before taking the survey. Similarly, a vast majority (82 percent) of teachers were not contacted by anyone — union, employer or other organization — about the results of the Janus decision and their new options with respect to their union membership. At least one state, Pennsylvania, is seeking to close the knowledge gap by passing legislation to inform all public workers that union membership is voluntary and they can opt out of dues payments without repercussions. Possibly more troublesome than the lack of education on the Janus decision among public employees is that state legislatures have enacted, or are seeking to enact, legislation that keeps workers in the dark about their Janus rights, jeopardizes worker privacy, and leaves workers open to union intimidation tactics. In California, Washington and New Jersey, legislation was enacted that severely curtails public employers’ ability to communicate with employees about the Janus decision. For example, the California law states that a public employer “shall not deter or discourage public employees from becoming or remaining members of an employee organization.” This could be construed to limit employers from educating workers about their new rights to stop paying union dues. In New Jersey, public employers have little incentive to test the limits of this type of law. Any New Jersey public employer who violates this provision will be required to reimburse the union for any loss of dues. A bill making its way through the Massachusetts legislature includes several

provisions that seek to blunt the impact of the Janus decision on union finances. The bill would achieve this goal in two ways — by charging nonmenbers for representation during grievances and easing union organizing. As I wrote in a letter to the editor in response to a Boston Globe editorial on the bill, charging nonmenbers for union services is not the best solution to solve the purported free-rider problem. Unions argue that since they represent the all workers in a bargaining unit — members and nonmenbers — nonmenbers should be compelled to pay for the services the union provides. But there is a gaping hole in this argument — exclusive representation. A near-universal provision in U.S. labor law is the concept of exclusive representation, which grants unions monopoly status to represent and negotiate on behalf of all the employees at a workplace, including nonmenbers. Under exclusive representation, nonmenbers have no choice but to work under a union contract or accept union representation. There is an equitable way, however, to reform labor law to ease union concerns over providing nonmenbers with services without charge. Massachusetts and other state legislatures should consider legislation that makes a clean break between the union and nonmenbers. Nonmenbers should be free to negotiate directly with their employer and find their own representation during grievance procedures. This way, unions only provide services to workers who are full-fledged, dues-paying members. Another provision in the Massachusetts bill, which has been enacted in several states — Maryland, New Jersey and Washington — provides unions with public employees’ private information, like cell phone numbers and email addresses, along with their home addresses. Worse, the bill fails to provide workers with the option to opt out of sharing their private information. This represents a clear invasion of privacy, and it is easy to imagine a scenario where

this private information is sold to third parties or could lead to harassment and intimidation of workers by union organizers. In fact, the National Labor Relations Board noted that distributing workers’ private information to unions could lead to these exact kinds of problems in a guidance document. Further, why should a union have access to the private information of workers who very well may want nothing to do with the union? If a worker wants to share his or her email address or phone number with a union organizer, they can easily do so without it being required by law. Another common reform making the rounds in state legislatures to boost union organizing efforts is requiring new hires to attend union captive-audience meetings so a union official can make a not-so-subtle case for union membership. In an op-ed for the Washington Post last year, I discussed a Maryland bill intended to undermine the Janus decision and how union “captive-audience” meetings have proved problematic: “In Washington state, public records obtained by the Freedom Foundation reveal that union organizers for the Service Employees International Union used tactics that were “aggressive,” “rude” and “coercive.” The workers who attended the orientation felt “pressured,” “misled,” “tricked,” “coerced,” “intimidated” and “forced” to sign up with the union. Unions should be able to make their pitch to workers, but it should be the worker’s choice to hear the union out, not a job requirement.” These are just a few of the many reforms union-friendly legislators have sought to pass to undermine the Janus decision. It is unfortunate that elected officials and unions have doubled down on seeking to force unions on workers. Janus presented an opportunity for unions to look inward, survey membership and provide services to workers that they want and would pay for voluntarily.

LIVING LIBERTY

A PUBLI CATION OF THE FREED OM FOU NDATION

FREEDOM IN THE NEWS ON LINE

July 3, 2019

July 9, 2019

A YEAR AFTER THE SUPREME COURT RULES AGAINST UNIONS, WHAT’S CHANGED?

JANUS ONE YEAR ON – WHAT’S NEXT? “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 ... 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 PRINT

ON LINE

July 18, 2019

“Tom McCabe, CEO of the Freedom Foundation, suggested in a written statement that, ‘...by spending millions of other people’s dues dollars on lawsuits, lobbying and bullying tactics intended to keep the workers in the fold,’ leaders of government unions are acknowledging that their members are dissatisfied. ‘If government unions can’t compete in a free market for the loyalty of public employees,’ he asked, ‘why should consumers be forced to buy their inferior product?’ ” ON LINE

July 12, 2019

OEA MEMBERSHIP DOWN 16 PERCENT OVER FIVE YEARS Battle for union members goes to the states “All this has created a lot of work for groups like the Freedom Foundation, which began as a nonprofit think tank but now devotes all of its efforts to reaching out to public-sector workers in Washington, Oregon and California. It has a $5 million budget and most of that goes into Janus-related efforts.”

“ ‘If there is a generalization that can be made about educators, they’re typically not aggressive personalities,’ said Jami Lund, a senior policy analyst at the Freedom Foundation. ‘They’re typically not political, even. Typically, service to children is their central, driving motivator, and that doesn’t generally mesh with, Hey, let’s go out and say rude things to our employers. And so I think unions do lose some folks when they get more aggressive.’ ”

We’re in his head. A year ago this summer, within hours of hearing the U.S. Supreme Court’s ruling in Janus v. AFSCME, AFSCME President Lee Saunders told his members: “They have chosen ... to facilitate a political attack on the labor movement and attempt to ‘defund and defang public-sector unions.’ Those are the exact words used by the CEO of a right-wing think tank.”

Guess which one.

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A P U BL IC AT I ON OF T HE FREEDOM FOUNDAT I ON

ACTION TIMELINE SPOTLIGHTING SOME OF THE FREEDOM FOUNDATION’S NOTEWORTHY ACCOMPLISHMENTS OF THE PAST MONTH

JUNE 26 Freedom Foundation Litigation Counsel Sydney Phillips argues a lawsuit before the Division 2 Court of Appeals in Tacoma over whether the Washington State Department of Health and Social Services’ obvious foot-dragging in response to a valid Freedom Foundation information request violates the state’s Public Records Act and Supreme Court precedent. The more important question raised by the case, however, is how employees working for a state agency could conclude their responsibility is to the labor union that represents them rather than the law. JUNE 27 Freedom Foundation staffers in Washington, Oregon and California mark the one-year anniversary of the U.S. Supreme Court’s ruling in Janus v. AFSCME by sending canvassers to visit government employees working in public office buildings in all three states.

decision by the Trump administration to begin actively enforcing long-ignored rules requiring that Medicaid payments be made directly to recipients rather than diverted by their state government, which often deducts union dues at that point. The rule change was the brainchild of Freedom Foundation Labor Policy Director Maxford Nelsen, who is quoted extensively in the WSJ piece. JULY 10 A class-action lawsuit filed by the Freedom Foundation and the National Right to Work Legal Defense Foundation on behalf of a pair of California In-Home Supportive Service (IHSS) providers will test whether or not a bitterly contested 2018 U.S. Supreme Court ruling rendered the membership card of virtually every unionized public-sector worker in the country invalid. Both signed membership cards with the union prior to the court’s June 27, 2018, decision in Janus V. AFSCME but subsequently requested their release from the union and an end to all dues deductions. SEIU 721 refused to honor their request, citing a provision in its collective bargaining agreements with Los Angeles and Ventura counties that binds workers to the union as long as the CBA remains in force. JULY 15

JULY 3 A Wall Street Journal story headlined “New Rule to Test Union Membership, Finances” chronicles a

Opponents of Seattle’s scheme to impose an income tax on its high earners are handed a less-than-satisfying victory when an appellate court ruling struck down the ordinance on statutory grounds but left open the possibility of an eventual appeal to the Washington State

Supreme Court, which could be poised to overturn longstanding constitutional prohibitions against income taxes not only in Seattle but statewide. Several different suits — including one whose plaintiffs were represented by the Freedom Foundation — were ultimately consolidated into one, and the tax was invalidated at the trial court level. JULY 23 The Freedom Foundation files a lawsuit on behalf of two more California public employees, challenging whether a landmark U.S. Supreme Court ruling last year prohibiting mandatory union participation can be undercut by wording inserted into a standard collective bargaining agreement. The pair requested to opt out of SEIU 721 in the aftermath of the Supreme Court’s 2018 ruling in Janus v. AFSCME but were told the union would continue taking dues from their paychecks indefinitely unless they re-submitted their request during an arbitrarily determined opt-out window of a few days before and after their respective CBAs expired.

Nationally syndicated radio host and Fox News commentator

Laura Ingraham will be the keynote speaker for the Freedom Foundation’s annual banquet

Sept. 21, 2019, at the Bellevue Hyatt Regency. For ticket information, call (360) 956-3482, or visit our website: