Federal Court Rejects State Worker Collective Bargaining Challenge

In this Monday, June 25, 2018 file photo, people gather at the Supreme Court awaiting a decision in an Illinois union dues case, Janus vs. AFSCME, in Washington.

In this Monday, June 25, 2018 file photo, people gather at the Supreme Court awaiting a decision in an Illinois union dues case, Janus vs. AFSCME, in Washington. AP Photo/J. Scott Applewhite, File

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A childcare employee who brought the case tied her argument to last year's Supreme Court ruling in Janus v. AFSCME.

Washington state did not violate a childcare worker's rights to free speech and association by allowing a labor union to bargain on her behalf, a federal appeals court has ruled.

Lawyers for the woman pursuing the case argued the court should side with her based on language in the U.S. Supreme Court decision last year in Janus v. American Federation of State, County, and Municipal Employees, Council 31—the case where the high court ruled it is unconstitutional to force public employees to pay certain union fees.

But a three-judge panel for the 9th U.S. Circuit Court of Appeals declined to go along with that argument, looking instead to an earlier Supreme Court precedent. In doing so, they passed on an opportunity to take a more expansive view of the ruling in Janus.

Details of the Washington state case are described in a 19-page opinion written by Judge Morgan Christen and filed on Tuesday.

Washington state beginning in 2006 authorized independent childcare providers working under a state-subsidized program to choose an exclusive collective bargaining representative. These childcare providers are only considered state employees for the purposes collective bargaining, rather than full-fledged state workers.

The providers chose Service Employees International Union Local 925 to represent them, although they weren't required to join the union.

In 2015, two childcare providers, Katherine Miller and Cynthia Mentele, filed a lawsuit against the state and SEIU, claiming their First Amendment right to expressive association had been violated because the union was speaking and negotiating on their behalf.

A federal district court granted summary judgment in the case in favor of Washington state. Only Miller appealed to the 9th Circuit.

In deciding the case, the appeals court turned to a 1984 Supreme Court opinion in Minnesota State Board for Community Colleges v. Knight. 

That case was brought originally by 20 community college instructors.

It hinged on questions about whether the instructors' rights to free speech and association were impeded under a system where employment-related issues, which fell outside of mandatory collective bargaining, were discussed in so-called "meet and confer" sessions.

A faculty association the instructors were not members of served as their exclusive representative in these sessions.

The Supreme Court held in Knight that the arrangement was not a constitutional rights violation.

"Appellees' speech and associational rights," the opinion written by former Justice Sandra Day O'Connor says, "have not been infringed by Minnesota's restriction of participation in 'meet and confer' sessions to the faculty's exclusive representative." 

"The state has in no way restrained appellees’ freedom to speak on any education-related issue or their freedom to associate or not to associate with whom they please, including the exclusive representative," it adds.

The opinion goes on to say that the instructors are "free to form whatever advocacy groups they like," are not required to become members of the faculty association, and didn't challenge the contributions they're required to make to support the association.

Last year's 5-4 ruling in Janus says state and local public workers who choose not to join a union cannot be required to pay “agency” or “fair share” fees. The fees were meant to help cover unions' operational costs and were not supposed to go toward political advocacy.

Supporters of the fees said eliminating them created the risk of a “free-rider” problem, where people opt out of paying into the union, but still benefit from its services. But the Supreme Court ruled that the fees amounted to a free speech violation.

The 9th Circuit, in the Washington state case, was unconvinced that any of the conclusions in Janus went far enough to undermine Knight.

Christen points to a passage in Janus that says: "It is also not disputed that the State may require that a union serve as exclusive bargaining agent for its employees—itself a significant impingement on associational freedoms that would not be tolerated in other contexts."

"We simply draw the line at allowing the government to go further still and require all employees to support the union irrespective of whether they share its views," the Janus decision goes on to say.

Miller argued that the appeals court was bound by the observation in Janus that exclusive union representation of non-union members impinges First Amendment rights.

But the 9th Circuit opinion says the language Miller highlights to make her argument is brief and deals with issues on the case's periphery. And that to accept her argument would mean reading the Supreme Court's decision in Janus as overruling the precedent set by Knight, even though the Janus ruling never mentions the case.

"We are unwilling to make that leap," Christen's opinion says. 

"Janus is also clear that the degree of First Amendment infringement inherent in mandatory union representation is tolerated in the context of public sector labor schemes," the judge adds.

The opinion also noted that the 8th U.S. Circuit Court of appeals ruled similarly in a case involving in-home care providers that was decided after Janus—it too applied the reasoning in Knight.

Christen's opinion says even if the 9th Circuit were to assume that Knight was no longer the guiding legal precedent in the case there are other reasons the court would've arrived at the same conclusion.

Two groups that had a hand in the Washington case are no strangers to battles involving public sector labor unions.

One of Miller's lawyers, Milton Chappell, is with the National Right to Work Legal Defense Foundation, which provided free legal aid to Mark Janus, the Illinois state child welfare specialist at the center of the Supreme Court case that bears his name.

Another one of her attorneys, James Abernathy, works with the Freedom Foundation, a group that bills itself as working to "reverse the stranglehold" government unions have on state and local policymaking. The group has been involved in other litigation involving public employee unions in the wake of the Janus decision.

Bill Lucia is a Senior Reporter for Route Fifty and is based in Olympia, Washington.

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