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Amid clashes with an activist group and fallout from a Supreme Court ruling, unions in Oregon are backing legislation that local governments see as “impossible” to fully implement.
Cities, counties and school districts are among those opposed to a controversial bill making its way through the Oregon state legislature that would mandate a number of practices related to public employee labor unions that are now subject to collective bargaining.
There are concerns that parts of the legislation are in conflict with the state’s public records laws and that it will pose new burdens and costs for public employers, while also raising the specter of lawsuits against the state or local governments over possible free speech violations.
“It's impossible to implement fully,” says Scott Winkels, an intergovernmental relations associate with the League of Oregon Cities. “It's completely untenable.”
The bill comes less than a year after a landmark U.S. Supreme Court ruling—in the case Janus v. American Federation of State, County, and Municipal Employees, Council 31—stripped public sector unions of their ability to collect certain fees from non-members.
In some states with public sector unions, lawmakers both before the anticipated Janus ruling and after have explored ways to bolster the standing of the labor organizations—a move proponents say is necessary to keep them strong and to protect employees’ rights.
The Oregon legislation would, in part, require agencies to give unions a slate of information about employees, while blocking others from accessing the same, and set standards for providing time and space for union officials to meet with workers on the job.
Meanwhile, as debate over the bill unfolds, an activist group continues to wage an aggressive campaign to chip away at the unions’ clout in the state.
That group, the Freedom Foundation, is vowing to file a lawsuit if the Oregon legislation, House Bill 2016, is enacted. “We have nine attorneys across the west coast that are dedicated to suing unions,” says Aaron Withe, the group’s Oregon director.
“We believe that there are items in this bill that are illegal if passed, and we intend on suing them for it if it does pass,” added Withe, who characterizes the measure as a “union wishlist.”
He declined to specify which parts of the bill a lawsuit might target but noted, “if you're going to prohibit an employee's freedom of speech, their First Amendment, then that would be something that we'd be willing to litigate over.”
Union officials say the legislation largely includes practices already in effect in many workplaces and ensures greater uniformity for government workers across the state.
“Most of the stuff in this statute is already standard practice and procedure for most of the public employees in Oregon,” said Steve Demarest, an administrative law judge and president of SEIU 503.
For state employees, he said, much of it is covered in collective bargaining agreements.
"Everything in there is something that we believe should be a uniform right and protection for every public employee of any public government entity in Oregon,” he said of the bill.
SEIU 503 is one of the state’s largest public sector unions and represents a range of workers, such as child welfare case managers, park rangers, and transportation department crews.
AFSCME Council 75 offers a similar take on the bill. The council oversees hundreds of collective bargaining agreements that cover state and local employees in Oregon like parole and probation officers, and county road department truck drivers and mechanics.
A staff attorney for the union, Margaret Kirschnick, told House lawmakers last month that the legislation would “codify existing nation-wide best practices so they may be uniformly implemented,” according to a written copy of her testimony.
Demarest recognizes the landscape is shifting for public sector labor unions. He said Janus is one factor, and another is that “a lot of money and creative thinking” has been devoted to anti-union initiatives. “We need to update Oregon’s laws to reflect that new reality.”
As it stands, public employees who are part of a workforce that a union represents cannot be forced to join the labor organization. But, up until last year, unions in about two dozen states, including Oregon, were able to collect “agency” or “fair share” fees from these workers.
The idea with these fees was that while the non-members were not part of the union, they still benefited from its collective bargaining and administrative activities and should help pay a portion of those costs. The fees were not supposed to go toward political expenses.
But with the Supreme Court’s Janus decision, the fees were declared unconstitutional.
For unions, this stoked worries about revenue losses, and “free-rider” problems where people opt out of joining the union and paying fees or dues, but still benefit from its services.
Across the U.S. last year, state and local public sector union membership dipped to around 6.7 million in 2018, from 6.8 million in 2017, according to U.S. Department of Labor figures.
The local government sector actually saw membership grow, while the state sector saw declines.
SEIU 503’s ranks fell to 45,106 in fiscal year 2018, down from 58,384 the prior year, the union’s filings with the Labor Department show. Its dues and agency fee receipts declined to $28 million, from about $30 million between the two years.
AFSCME 75 reported 22,831 members at the end of 2018, down from 26,061 in 2017.
A spokesman for SEIU 503 said by email that, since the Janus decision, its overall membership is up 2.2 percent. Even so, Demarest acknowledges that the loss of fair share fees is a financial hit.
Without the fees, he notes, "members are everything.”
‘Reasonable Access’ to Employees
HB 2016 cleared Oregon’s House during the last week of March in a 36-22 vote. Republicans cast all of the “no” votes. It’s now pending before the state Senate’s Committee on Workforce.
Rep. Brad Witt, a Democrat who is one of the bill’s chief sponsors, did not respond to requests for comment about the legislation. Email and phone messages left with the office of state Sen. Kathleen Taylor, a Democrat who chairs the workforce committee, also went unreturned.
Rather than imposing one or two sweeping changes, the 17-page bill includes a raft of provisions dealing with how unions interact with state and local employers and employees.
For starters, it says public employers must grant designated union representatives, sometimes called shop stewards, “reasonable time” to engage in certain union activities during work hours, without docking their pay, or stripping them of seniority or other benefits.
Eligible activities include things like investigating grievances and attending meetings.
The bill also calls for employers to provide unions with “reasonable access” to employees within the workforce the union represents. Reasonable access here includes a right to meet with new employees, within 30 days of their hiring, without them losing pay for that time.
Public employers would be required to allow unions to use their facilities and property for these and other meetings with employees.
The legislation also says employers shall provide unions with personal information for workers in the workforce the union represents, including their names, dates of hire, cell and work phone numbers, work and personal email addresses, home addresses, titles and salary.
Additionally, under the legislation, unions would have a right to use public agencies’ email systems to send messages to employees, and it would become an unfair labor practice to publicly disclose emails between the labor groups and workers.
The bill would also make it an unfair labor practice to provide groups other than the union with contact and personal information for employees, or for employers to knowingly allow their email systems to be used by “any entity” to discourage participation in a labor union.
Elsewhere, the legislation says an employee can authorize union dues deductions by phone, but unless otherwise specified in a bargaining agreement, they can only revoke the payments with an original, signed, written statement delivered to the union’s headquarters.
And the bill stipulates that unions have the right to establish “reasonable rules regarding appropriate conduct” for people who attend meetings that they organize at workplaces.
Local Government Objections
Winkels, discussing the bill by phone a day after it passed out of the House, walked through some of the cities’ sticking points.
For instance, he said, when it comes to blocking the release of employee personal information to private groups other than the union, there’s friction with state open records laws.
He noted there are circumstances when information like employee addresses, or ages, can be conditionally released. But this can get complicated and might require input from a district attorney. An example might be a journalist investigating age discrimination at an agency, or what share of police officers live in the town they work in.
Exempting union emails sent over government computer networks from public disclosure, as the bill proposes, could be problematic for similar reasons. Current exemptions in the state’s public records laws don’t prohibit the release of this material, Winkels explains.
“I think it is just a phenomenally misplaced hope that the employer is going to go to any lengths to fight a district attorney’s order to release these emails,” he said. “We're not going to do it.”
Beyond those concerns, he says “where things come off the rails” is the requirement to prevent the use of workplace email by “any entity” discouraging union membership, while simultaneously allowing unions to go about exchanging emails with employees.
This proposed restriction poses clear constitutional problems, according to Winkels.
“How is that not content-based speech restriction?” he said, pointing out that a spouse urging their partner not to join a union may qualify as an “entity” under the bill. “Do you filter, or block people who do this?” Winkels added. "Seriously, how are we supposed to do that?"
The Oregon School Boards Association, speaking for 197 school districts and 17 community colleges, also opposes the legislation.
Peggy Stock, the group’s director of labor services, described the bill to lawmakers as “a costly, one-size-fits-all approach to labor relations, one that does not consider potential ramifications on school districts big and small and does not restore what was lost under the Janus decision.”
If the bill were to be enacted, she added, “school districts would lose the ability to effectively negotiate” many of the subjects that it covers and it would “send a message that if negotiation does not yield all that is proposed, the legislature will step in to mandate an outcome.”
The Association of Oregon Counties is against the legislation in its current form as well. “This bill is a broad-reaching mandate that would be costly for counties,” a spokesperson for the group said in an email, adding that it “removes local control for bargaining.”
One specific objection the association raises is that there are legal protections for personal information for employees like parole and corrections officers. The group’s spokesperson added: “It should not be the role of the counties to facilitate violation of personal privacy.”
Oregon’s public sector labor unions frame the legislation much differently. Demarest says for example, that the Freedom Foundation has made use of work email addresses to send employees messages encouraging them to drop, or opt out of, union membership.
“It’s just not a good practice for public employees, on paid work time, to be reading email messages from third parties,” he said.
Demarest makes a case that labor organizations, like SEIU 503, play a unique role in the workplace, which is why it makes sense for them to have access to personal contact information and to be able to have special privileges for using government workplace email.
“We don't think it's valid to just compare us to, for example, the Freedom Foundation and say that we and the Freedom Foundation should have the same access, or lack of access, to contact information for the people that we are charged with representing,” he said.
AFSCME’s lawyer in her testimony last month stressed that many public employers in Oregon already follow the “reasonable access” guidelines in the bill. “None of these rights are new,” she said.
The Freedom Foundation has suggested the provisions letting unions determine reasonable conduct for workplace meetings could be used to censor speech about topics like the Janus ruling.
But Ben Morris, SEIU 503’s communications director, said this part of the bill is intended to ensure that meetings are orderly and that unions can “make the best use of the limited opportunities we have to provide representation to our members.”
Asked about the requirement for canceling union dues payments with a signed, written notice, delivered to union headquarters, as opposed to over the phone, Demarest responded by saying fraud typically isn’t an issue when it comes to people joining a union.
In contrast, he says the Freedom Foundation is using hardball tactics, sometimes sending people door-to-door “wearing 503’s colors,” and possibly misleading them into signing a form the group devised for people to make a request for dropping their union membership.
“They'll get their signatures," Demarest said, "and then they bundle up these forms and they send them in to us, en masse, and then we end up sorting through them to identify who the person is and then we have to contact the person to make sure that this is actually valid.”
“That's what's going on,” he added. "They're out to bust us."
‘That's all we do here’
The Freedom Foundation was founded in 1991. It’s narrowly focused on reducing the sway of public worker unions in state and local policymaking in Oregon, Washington and California.
“That's all we do here,” said Withe. "On the West Coast, government unions have been able to get away for so long with doing outrageous stuff in the legislature.”
He says the group collects “hundreds of opt out forms every week from people who want out of their unions,” while also conducting outreach that includes billboards, mailers, e-mails, social media, door-to-door visits, office visits, and text messaging.
“We work vigorously to give them as much information as possible so they can make an informed decision on union membership,” he said. “If they decide to opt out, we send the union the forms and then follow up with them to make sure that they got out successfully.”
“I don’t think we’ve ever heard of someone opting out and getting this money back in their pocket that has said we’ve tricked them,” Withe added. “They make it so hard for public employees to opt out, and are trying to make it harder to leave through HB 2016.”
The foundation, a nonprofit, reported about $4.6 million of revenues in 2017. It’s annual revenues since 2011 have ranged from $1.7 million to around $4 million depending on the year.
At least one of the group’s larger donors in recent years, contributing $500,000 in both 2016 and 2017, was The Lynde and Harry Bradley Foundation, which supports limited government, among other causes.
“Our goal is to hold unions accountable,” says Withe. “We encourage the idea that union membership should be voluntary just like supporting any other group is.”
Demarest says SEIU 503 has been dealing with opposition efforts dating back to at least the 1990s and remains undaunted. “It's been irritating, it makes life less pleasant,” he said. “But the fact is we face the attacks and as a result we end up being even stronger.”
Winkels said Friday the League of Oregon Cities had received an email from SEIU requesting a meeting with the league and other groups to discuss concerns about the legislation.
Bill Lucia is a Senior Reporter for Route Fifty and is based in Olympia, Washington.