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Fisk v. Inslee

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

October 16, 2017

BECKY FISK, et al, Plaintiff,
GOVERNOR JAY INSLEE, et al, Defendant.


          Ronald B. Leighton, United States District Judge.

         THIS MATTER is before the Court on competing motions for summary judgment. At issue is the constitutionality of a state statute (RCW 41.56.113(1)(b)(i)) and a Collective Bargaining Agreement (CBA) between the Union (SEIU 775) and the State of Washington in light of the U.S. Supreme Court's decision in Harris v. Quinn, 134 S.Ct. 2618 (2014).


         The Washington Department of Social and Health Services pays Individual Providers (IPs) to provide home-based care to persons who qualify to receive assistance from the agency. RCW 74.39A.240(3). On November 6, 2001, state voters approved Initiative 775, which established a single statewide bargaining unit for IPs that now bargains directly with the Governor. IPs overwhelmingly elected SEIU 775 as their representative. The first CBA between the State and SEIU 775 was signed in January 2003.

         SEIU 775 treats all IPs who pay full Union dues as members, per its constitution and bylaws. Prior to the 2015 Supreme Court's Harris v. Quinn, 134 S.Ct. 2618, article 4.1 of the CBA had “an agency shop union security clause” that required the State to deduct either Union member dues or non-member agency fees from the paychecks of all IPs. Under an “agency shop” arrangement, a union that acts as exclusive bargaining representative may charge nonunion members, who do not have to join the union or pay union dues, a fee for acting as their bargaining representative, also known as a fair-share agency fee. Chicago Teachers Union, Local No. 1, AFT, AFL-CIO, et al. v. Hudson, 106 S.Ct. 1066, 1074 n. 10 (1986). In Abood v. Detroit Board of Education, the Supreme Court considered the constitutionality of a Michigan statute authorizing a union and a local government employer to agree to an “agency shop” arrangement requiring every employee, whether a union member or not, to pay the union a service fee. See 431 U.S. 209, (1977). The Supreme Court distinguished between collecting mandatory fees from non-union members for a union's administrative, grievance, and bargaining expenditures and for its political or ideological expenditures, holding the former constitutional and the latter not. See id. at 232, 237.

         Until Harris, IPs who did not wish to be Union members had three choices: They could (1) pay an agency fee that was the equivalent of full monthly membership dues but decline membership; (2) object to paying the full agency fee equivalent of dues and instead pay a reduced agency fee per Chicago Teachers Union v. Hudson, or; (3) object to paying an agency fee on religious grounds and pay the equivalent of full member dues to charity.

         Before Harris, the Union sent new IPs a notice explaining their rights and obligations under the CBA's union security clause upon hire. This was done through a packet known as the “U-1 packet.” It contained a cover letter, a Beck-Hudson notice, the local and international Beck-Hudson audits, a membership card, a business reply envelope, and a voter registration form. The notices informed newly hired IPs they were not required to be a member of the Union, may decline membership at any time, and need not sign a membership card. SEIU 775 also annually sent notices to IPs about their rights to withdraw from Union membership and/or pay reduced agency fees. These notices also reiterated that IPs need not sign a membership card.

         On June 30, 2014, the Supreme Court decided Harris v. Quinn. There, the Court held that the First Amendment prohibits a state from collecting fair-share agency fees from employees who wish neither to join nor financially support a union where the employees are not “full-fledged public employees.” The day after the decision, SEIU 775 asked the State to cease paycheck deductions for the portion of the IP bargaining unit who had previously objected to paying full Union dues.

         On July 17, 2014, SEIU 775 changed the U-1 packet such that all IPs who were mailed the packet upon hire after June 30, 2014, received the following language:

In light of the legal uncertainty created by the United States Supreme Court's June 30, 2014, decision in Harris v. Quinn, the Union is not at this time requiring that you provide any financial support for the Union. If you do not wish to provide financial support to the Union, please inform us by sending a letter with your name, address, and telephone number and stating that you do not wish to financially support the Union. You may use the enclosed postage prepaid return envelope to do so, or you use your own envelope addressed to: Secretary-Treasurer, SEIU 775, 215 Columbia Street, Seattle, WA 98104. If you tell us you don't want to support the Union financially, you will not be charged any Union dues or fees, but deciding to withdraw from membership means you will lose all rights to vote for your employment contract, for or against dues increases, and in Union officer elections. …. If you do not respond to this notice, we will take it to mean you wish to provide financial support to the Union and will be charged through a payroll deduction.

Glickman Dec. ¶ 10. In addition, in August 2014, SEIU 775 notified all existing IPs who had not previously objected, even if they had signed a membership card, that they were not required to be Union members or to financially support the Union.

         On September 26, 2014, the State and SEIU 775 entered into (1) a Memorandum of Understanding (“MOU”) that modified article 4 of the operative 2013-2015 CBA, and (2) a Tentative Agreement (“TA”) with respect to article 4 for the 2015-2017 CBA. Both the MOU and the TA provided that while the State would deduct membership dues or non-member fees in accordance with its obligation under RCW 41.56.113(1)(b)(i), IPs who did not wish to join or financially support the Union could opt out of paying any dues or fees whatsoever. The 2015-2017 CBA incorporated the relevant terms of the TA.

         Since October 15, 2014, article 4.1.B has required SEIU 775 to notify new IPs as soon as possible, and no later than 14 days from the date the Union receives the IP's contact information, that they are not required to join or financially support the Union, and will suffer no penalty as a result. This notice is part of a packet that the Union still calls a “U-1.”

         The U-1 packet informs the IP that, to avoid paying the Union any money at all, she has 30 calendar days to opt out of Union membership. If the IP opts out, SEIU 775 refunds the money with interest (at the rate of interest the Union received). A newly hired IP who does not opt out within 30 days of being notified of her right to opt out will be treated as an SEIU 775 member and assessed monthly dues until such time as he or she opts ...

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