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Alvarez v. Inslee

United States District Court, W.D. Washington, Tacoma

March 22, 2017

KENNETH ALVAREZ, CAROL SHELTER and RAUL FLORES, Individual Providers in Washington, Plaintiffs,
GOVERNOR JAY INSLEE, in his official capacity as Governor of the State of Washington, PATRICIA LASHWAY, in her official capacity as Secretary of the Washington Department of Social and Health Services, SERVICE EMPLOYERS INTERNATIONAL UNION HEALTHCARE 775 NW, a labor organization, Defendants.


          ROBERT J. BRYAN United States District Judge

         This matter comes before the Court on the Defendant Service Employers International Union Healthcare 775 NW's (“Union” or “SEIU 775”) Motion for Summary Judgment (Dkt. 91), the State Defendants' Motion for Summary Judgment (Dkt. 95), Plaintiffs' Motion for Summary Judgment (Dkt. 100 refiled as corrected 104-1 and as unredacted at 107-7), and Plaintiffs' Motion to Seal and/or Redact Documents (Dkt. 106). The Court has reviewed the pleadings filed regarding the motions, and the remaining record, and is fully advised. Oral argument is unnecessary to decide the motions.

         Originally filed on February 11, 2016, Plaintiffs are “individual provider[s] . . . of personal or respite care services” (“IP”) who are paid by the State to provide care for qualifying disabled individuals. Dkts. 1 and 85. They assert that they have been constructively forced to listen to Union presentations as a condition of employment in violation of their First Amendment rights. Id. Plaintiffs seek declaratory and injunctive relief, and attorneys' fees and costs. Id.

         Defendants now move to have the case summarily dismissed. Dkts. 91 and 95. Plaintiffs seek to have summary judgment granted in their favor. Dkts. 100, refiled as corrected 104-1, refiled as corrected and unredacted as 107-7. For the reasons provided, the Defendants' motions (Dkts. 91 and 95) should be granted, Plaintiffs' motion for summary judgment (Dkts. 100, 104-1 and 107-7) should be denied, and the case dismissed.

         I. FACTS


         The State offers services to certain Medicaid-eligible seniors and adults with disabilities to prevent them from having to enter institutional care, like nursing homes. Dkt. 97, at 2. Some of these services include in-home personal care from IPs. Id. In order to get paid by the State, IPs must meet federal and State requirements. Dkt. 105-2. In Washington that includes: signing a contract with the State about the terms and conditions of their employment (usually at an initial contracting appointment, but a contracting appointment is not required), 5 hours of orientation and safety training, 70 hours of basic training, and 12 hours of continuing education each year. Dkts. 105-2, at 17-40 and 114 and 111, at 2. The continuing education can be done online or in person. Dkt. 105-5, at 35. Many IPs do continuing education online. Id. and Dkt. 107-2, at 12. An independent 26 U.S.C. § 501 (c)(3) organization and multi-employer welfare benefit plan (which was created by Washington law, RCW 74.39A.360), SEIU Healthcare Northwest Training Partnership (“Training Partnership”), schedules and provides the training. Dkt. 93, at 1.

         As required by state law, all IPs are part of a single statewide bargaining unit. RCW 74.39A.270; Dkt. 98, at 2. SEIU 775 was elected by the bargaining unit to be the “exclusive bargaining representative” for Washington's IPs. Dkt. 98, at 2. All the IPs are bound by the terms of the Collective Bargaining Agreement (“CBA”) negotiated and agreed to by the State and the Union every two years. Dkts. 98, at 2 and 105-2 at 49.

         It is difficult for the Union to reach and communicate with the IPs because IPs do not work or gather in a central location, but rather work in private homes throughout Washington. Dkt. 98, at 3. According to the State, in order “to facilitate voluntary communication between SEIU 775 and the bargaining unit members . . . about union membership, rights, and benefits” (Dkt. 98, at 2), the State agreed in the 2015-17 CBA to allow a Union representative 15 minutes of time to meet with potential IPs at the initial contracting appointment (Dkt. 105-2, at 20). The State and Union also agreed to a provision in the 2015-17 CBA “requiring the State to compensate IPs for up to 30 minutes of their time at basic training spent in union presentations, ” and for up to 15 minutes a year at continuing education training. Dkt. 98, at 2.

         Accordingly, the relevant portion of the original 2015-2017 CBA, Section 2.3, provided, in part: “[t]he State will also provide fifteen (15) minutes for a Union representative to meet with the individual provider(s) participating in the contracting appointments.” Dkt. 98, at 12. A portion of the original Section 2.3 further provided that:

If the state office has regularly scheduled recurring time for [IPs] to view the initial safety and orientation training, the State will make the Union aware of these reoccurring meetings on an annual basis. The State will also provide fifteen (15) minutes for a Union representative to meet with the individual providers.

Dkt. 98, at 12. The original Section 15.13 A of the 2015-2017 CBA also provided, in part: the State “agrees to compensate up to thirty (30) minutes of time for a presentation on Union issues to all [IPs] receiving the Union portion of required basic training . . . [and] up to fifteen (15) minutes of time annually for a presentation on Union issues to all [IPs] receiving the Union portion of required continuing education.” Id., at 13-14. (If IPs choose to take their continuing education classes online, they have the option to watch a Union presentation video. Dkt. 93, at 3.) The State has been able to allow for Union presentations, whether in person or online, at no additional cost to the State. Dkt. 105-2, at 156.

         Further, in accord with the CBA, Union designated materials are included in a large packet of orientation documents given to IPs at their contracting appointment. Dkt. 105-2, at 83-84. The relevant portion of the 2015-2017 CBA concerning this is Section 2.6, which states that:

Orientation materials distributed by the Employer . . . to [IPs] shall include Union membership applications and Union orientation materials. Union materials distributed by the Employer shall be neutral in tone. It shall be the Union's responsibility to provide the Employer with sufficient copies of such materials for distribution during orientation and training.

Dkt. 98, at 12. The intent is to provide the IPs with a current copy of the CBA and any changes to the CBA. Dkt. 111, at 3.


         Plaintiff Alvarez began working as an IP in March of 2015, providing care to his fiancée. Dkt. 105-3, at 13. In November of 2014, he learned that he could get paid to be an IP. Id., at 16. Plaintiff Alvarez contacted the State, and was told that he needed to come in to sign a contract, pick up paperwork and get fingerprinted. Id. He was also told that he needed to watch some training DVDs, and after he completed all of that, he could go to the training courses. Id., at 17.

         According to Plaintiff Alvarez, at his first contracting appointment, on February 24, 2015, Sherri Olson (a contractor for the State) handed him a stack of papers and told him he had to sign them to get paid. Dkt. 105-3, at 19. Included in the packet was a Union membership application. Dkt. 105-3, at 20. Plaintiff Alvarez states that he asked if he had to sign the Union membership application, and he asserts that Ms. Olson told him he had to or he would not get paid. Dkts. 100-2, at 3 and 105-3, at 20.

         Plaintiff Alvarez states that he returned on March 4, 2015, filled out the Union membership application, signed it, and gave it to Ms. Olson. Dkt. 105-3, at 23. Plaintiff Alvarez also signed his contract with the State on March 4, 3015. Id., at 25.

         On March 25, 2015, Plaintiff Alvarez returned a call from the Union. Dkt. 105-3, at 27. The call was recorded. Id., at 28. The Union's representative stated that it was “a recorded call for assisting in completing a membership application.” Id. She stated that language from the membership application would be read to Plaintiff Alvarez, and his verbal agreement was needed. Id. Referred to as a “voice authorization card, ” Plaintiff Alvarez orally agreed that he “request[ed] and accept[ed] membership in [SEIU 775]” and to other terms and conditions of membership in the Union. Id., at 28-29.

         Plaintiff Alvarez did not meet with a Union representative at his contracting appointments, and attended only one Union presentation, at his basic training on April 11, 2015, because he thought it was bundled in with the other training. Dkt. 105-3, at 46-47. (The website where Plaintiff Alvarez registered for classes allowed him to de-select the Union Presentation (Dkt. 93, at 3), but he did not understand that he could do that (Dkt. 105-3, at 46-47)). Although he was given a Union membership card at the April 11, 2015 Union presentation, his membership card is dated May 11, 2015. Dkt. 105-3, at 48-49.

         Plaintiff Alvarez acknowledges that none of the paperwork he was given indicated that attendance at Union presentations was mandatory. Dkt. 105-3, at 55-60. He has never been told that his contract with the State would be terminated if he did not attend a Union presentation. Id., at 60. Plaintiff Alvarez has now opted out of the Union and is still working and being paid as an IP. Id. Plaintiff Alvarez testified that he does not believe that he will be forced to attend Union presentations in the future as a condition of employment with the State as an IP. Id., at 65-66. He filed this case on February 11, 2016. Dkt. 1.


         In order to make it clear that the Union presentations are not mandatory, the State and the Union agreed to a Memorandum of Understanding on April 4, 2016. Dkt. 94, at 4 and 98, at 16-17. This Memorandum of Understanding replaces Article 2.3 and 15.13 A of the 2015-17 CBA with the following:

2.3 Access to New Individual Providers during the Contracting Process and Safety and Orientation Trainings.
A. The Union will be provided the opportunity to meet with new [IPs] for fifteen (15) minutes during the contracting process. The Employer and its agents will take steps to consolidate the contracting appointments into one (1) or two (2) designated days of the week, and will inform the Union of the designated days or other contracting arrangements.
B. If the state office has regularly scheduled recurring times for [IPs] to view the initial safety and orientation training the State will make the Union aware of these reoccurring meetings on an annual basis. The State will also provide fifteen (15) minutes for a Union representative to meet with [IPs]. The Union will attend ...

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