Targets of Opportunity

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Targets Opportunity of

As their membership numbers shrink, unions have started looking to legislative staffers as a new source of dues.

At first glance, Starbucks baristas appear have little in common with congressional aides. Yet, for some of the same reasons, both are at the center of one of the biggest waves of labor union organizing in recent decades. In the face of declining membership in the wake of the U.S. Supreme Court’s 2018 decision in Janus v. AFSCME that outlawed mandatory membership and dues in the public sector, government employee unions, aided by their liberal allies in bureaucracies at every level, have sought to replenish the ranks by organizing groups of workers that have historically been considered a poor fit for collective bargaining. These have included foster parents, home-based childcare operators and people caring for Medicaid-eligible friends or family with disabilities. The latest in this trend has been the unionization of legislative aides. Although still a novelty, the trend has rapidly gained steam over the past year. Unlike many government jobs, legislative work is often inherently, explicitly partisan. For obvious reasons, both elected officials and their aides generally find it helpful and productive to share the same basic political views. In addition, it’s common for the respective party caucuses to have their own Republican or Democrat staff to assist with drafting legislation, handling public relations and engaging in coalition outreach. While aides may work for a particular lawmaker or party day to day, individual lawmakers do not generally operate as independent “employers.” MAXFORD NELSEN Labor Policy Director

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Instead, the legislature or its respective chambers typically have nonpartisan, professional staff that handle payroll and technical employment matters and generally report to the majority party.

The nature of the work is also unique, with staff typically working intensely when the legislature convenes but having a more relaxed schedule — or even not working at all — outside official legislative proceedings. Nonetheless, unions’ one-size-fitsall, factory floor collective bargaining model is a poor fit for the unique structure and demands of legislative employment.

Consequently, few legislative employees have been unionized despite the widespread proliferation of unions in government.

Until recently, Maine appeared to be the only state to permit unionization and collective bargaining for legislative employees, which it authorized in 1999. While nonpartisan, administrative employees have been represented by the Maine Service Employees Association since 2002, the partisan aides working with state lawmakers are not unionized.

But with dues revenue on the line, unions are working hard to force the square peg into the round hole. So far, their record is mixed.

At the outset of Delaware’s 2020 General Assembly, a group of legislative aides announced their intent to form a union for the roughly 45 employees serving the state’s elected lawmakers.

The effort to certify the American Federation of State, County and Municipal Employees (AFSCME) Council 81 was spearheaded by Democrat staffers who, given their party’s nearly 2-1 advantage in the General Assembly, comprised a clear majority of the bargaining unit.

Even their clear numerical advantage proved insufficient to overcome unforeseen legal barriers, however.

Just one month into the effort, AFSCME Council 81 shared a legal analysis with workers concluding that the employees were exempt from the state’s public employee collective bargaining laws, “…thus raising a question about whether the Public Employment Relations Board could ever establish a bargaining obligation for the General Assembly.”

Additionally, the analysis determined “(T)here remains a clear separation of powers issue … because we would be asking the judicial branch to impose a requirement upon the legislative branch through the executive branch.”

In a statement to Delaware Online, the employee activists blasted AFSCME Council 81, claiming the union “repeatedly assured us that we had the legal right and ability to organize and promised us legal protections afforded to all organizing workers under the law … That they would have a different legal opinion now than during the several months leading up to our announcement is disappointing and dangerous for everyone involved.”

Then in December 2020, on the other side of the country, the International Brotherhood of Electrical Workers (IBEW) Local 89 filed a petition to unionize Oregon lawmakers’ aides with the state Employment Relations Board (ERB).

It immediately ran into roadblocks.

Responding to the petition on behalf of the Oregon Legislature, Attorney General Ellen Rosenblum argued that allowing an executive branch agency, the ERB, to direct the legislature to collectively bargain with its own staff violated the separation of powers between government branches established by the Oregon State Constitution.

She also pointed out that state law “does not provide a mechanism” for the legislature, as an entity, to be represented in collective bargaining and that some of the employees the union petitioned to represent were specifically excluded from being unionized.

Nonetheless, the Democratcontrolled Oregon State Legislature, deeply in hock to union political muscle, sought to remove one roadblock by passing SB 759 in early 2021, designating the Speaker of the House and the Senate President as the Legislature’s bargaining representatives in any union negotiations.

IBEW also withdrew its initial petition and submitted a second that designated the employees to be represented more precisely.

With these issues resolved, the union, legislature and EBR plowed ahead, ignoring the thornier separation-of-powers question. The ERB certified the union to represent legislative aides in June 2021 after the employees voted for the union 75-31.

But in August, the Freedom Foundation challenged the unionization scheme, primarily on separation-ofpowers grounds, with a lawsuit filed in state courts on behalf of Oregon state Rep. Kimberly Wallan (R-Medford) and her legislative assistant, Sarah Daley.

The litigation continues to work its way through the courts and, so far, the union and Democrat legislative leaders have been unable to reach agreement on their first collective bargaining agreement, perhaps a sign of the unique challenges of integrating collective bargaining into a legislative environment, or that Democrat legislators are learning the hard way that union contracts will undermine their control over the operation of the institution.

In early 2022, the concept spread north to Washington, where a coalition of unions, led by the International Union of Painters and Allied Trades (IUPAT) District Council 5, backed legislation to extend collective bargaining privileges to legislative employees.

Initially, it looked like Washington’s Democrat-controled Legislature had learned the lessons of Oregon’s initial, rocky experience with unionization. While the proposal received hearings in both the House and Senate, it failed to receive floor votes in either chamber in time to survive a key deadline.

The apparent attempt by Democrat leadership to let the bills die quietly prompted an unprecedented one-day “sickout” in mid-February involving about 100 staffers — all Democrats, according to press reports.

Progressive media also savaged Democrat leadership, not unjustly, for the hypocrisy of supporting unions in every other context but refusing to allow collective bargaining for their own employees.

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Attempting to save face, Democrat leaders bent the procedural rules and introduced a new bill to resurrect the concept.

HB 2124, which was ultimately passed along party lines and signed into law by Gov. Jay Inslee, extended collective bargaining privileges to legislative employees in principle beginning in 2025.

In the meantime, the newly created, $1 million-per-year Office of State Legislative Labor Relations was tasked with studying and reporting to the Legislature on how to actually implement collective bargaining.

The driving force behind such legislation, of course, is not an interest in aides’ welfare or voice at work, but a desire to feed the Big Labor beast more dues money in return for continued electoral support.

In Washington’s case, IUPAT District Council 5 endorses Democrats almost exclusively. It and its parent affiliate have spent hundreds of thousands of dollars in members’ dues backing candidates for office in Washington.

Prior to targeting legislative staff, the union organized employees of the Washington and Oregon Democrat Parties.

While collective bargaining in government always comes with fundamental, structural flaws, the explicitly partisan nature of legislative aides and the unions seeking to organize them create additional challenges.

Allowing labor unions explicitly aligned with one political party to represent non-partisan legislative employees who are supposed to impartially and professionally serve elected lawmakers regardless of party affiliation could pose serious conflicts of interest.

Further, as occurred in Oregon, allowing a union aligned with the majority party to represent all legislative aides puts minority party staffers in the unenviable position of having to choose between: (1.) joining the union and supporting the electoral defeat of the lawmaker(s) they work for; or, (2.) forgoing any voice over workplace matters. Nonetheless, these difficulties may be more than eclipsed by the fact that liberal lawmakers are self-imposing collective bargaining obligations that will inevitably turn their focus inward towards negotiating contracts, defending grievances, navigating work rules, managing labor unrest or even work stoppages, and otherwise slow down their conveyor belt of progressive policy.

Congressional Democrats presently find themselves in a similar bind, torn between living their proclaimed belief in the universal importance of labor unions to workers’ rights and ceding a competitive advantage to their Republican counterparts.

With the midterm elections rapidly approaching, it wouldn’t be surprising if congressional leadership hopes the issue simply blows over for now.

But there’s little chance it will go away altogether.

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