Does Harris v. Quinn apply to individual providers in Washington?

August 20, 2014

That was the question I was hoping to answer today but after reviewing the state's August 20th response to the Centeno v. Dept. of Social & Health Services lawsuit in federal court the elusive answer will have to wait.

While requesting that case "be dismissed with prejudice" one section of the state's brief today said:

Defendant Quigley asserts that paragraph 1.4 of the Complaint refers to matters of law and contains legal conclusions that do not require an answer; however, should an answer be deemed necessary, Defendant Quigley denies the allegations contained in paragraph 1.4.

Here is section 1.4 from the plaintiffs' complaint:

The State contends that it may lawfully compel Individual Providers to support SEIU, under an exception to the First Amendment rule that allows states to compel their employees to pay dues to labor unions. However, the State may not invoke that exception here because, by its own admission, Individual Providers are not full-fledged employees of the State, but instead are merely deemed, by legislative fiat, to be State 'employees' for the sole and limited purpose of collective bargaining. The rationale that permits states to compel their employees to pay union dues does not apply in the context of the relationship between Individual Providers and DSHS. Indeed, the United States Supreme Court confirmed this in its recent opinion in Harris v. Quinn (striking down similar Illinois scheme forcing personal care providers to join and pay dues to SEIU-Illinois & Indiana).

Does that mean the state is denying Harris v. Quinn applies to individual providers in Washington?

Here is the answer I received from the Attorney General's Office:

An answer to a complaint, such as the one we filed today, is a very bare-bones pleading that leaves little room for nuance or argument.

Paragraph 1.4 of the plaintiffs’ complaint makes a number of legal claims.  As we said in our answer, we believe those claims need no answer because they are not factual allegations.  But to the extent an answer is necessary, we have denied them.

We obviously are not denying that Harris v. Quinn was issued or that it is relevant to this case, but an answer is not the place to go into detail about the impacts of precedent or whether one case controls the outcome of another case.

Since a more detailed brief from the state directly addressing the applicability of Harris v. Quinn could be months away the next chance we'll have to answer this question is when the Governor concludes the current secret contract negotiations with various unions including those unions representing the individual providers. Should the Governor decide to not include the union security provisions in these individual provider contracts it will be instructive of how the state views the U.S. Supreme Court ruling. If, however, the contracts do include the union security provisions it is likely we'll see additional lawsuits filed.

In the meantime it looks like SEIU is bracing for a potential loss in this case by asking members and recruits to sign a membership card saying:

In addition, in order to build a more powerful Union, and in exchange for obtaining the rights and privileges of becoming a member of SEIU 775NW, I hereby knowingly release both SEIU 775NW and the State of Washington from any future legal claims or liability related to the State's past collection of agency fees from me pursuant to CBA Sec. 4.1 and/or RCW 41.56.113.

Depending on how all this plays out the U.S. Supreme Court could get another shot to decide how their ruling is being implemented and if it is time to directly repeal the 1977 Abood decision, which allows public sector unions to collect mandatory agency fees from workers as a condition of employment. In its Harris v. Quinn decision the U.S. Supreme Court was very critical of Abood saying it has “questionable foundations.”

Updated (4:35 p.m.)

The Freedom Foundation has posted a new SEIU letter. From the SEIU letter (emphasis added):

In light of the legal uncertainty created by the United State Supreme Court's June 30, 2014 decision in Harris v. Quinn, pending further review the Union is not at this time requiring that you provide any financial support for the Union… 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. Less than one half of one percent of caregivers have chosen to give up their rights and withdraw from membership. 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.

Additional Information
Attorney General declines Senator’s request for Harris v. Quinn impact opinion