Article by Erik Smith. Published on Wednesday, March 31, 2010 EST.

Single Sentence Reignites a War – Language Boosts SEIU Organizing Efforts

By Erik Smith

Staff writer/ Washington State Wire

OLYMPIA, March 31.—Thirty words inserted quietly into the House budget bill are renewing a long-running battle between business and labor over what many call the ‘gag rule.’

Business interests are furious. Somehow this one got past them. The sentence was added at the request of the Service Employees International Union during a committee hearing Feb. 27, rekindling one of the hottest legislative battles of the last few years. Yet no one noticed before the budget came to the House floor for a vote.

But now that negotiators have gone behind closed doors, a small but intense lobbying effort is being mounted to punctuate the whole thing.

The line forbids the use of state funds to promote or deter union membership in long-term care facilities or programs for the developmentally disabled.

            Its sponsor, state Rep. Eileen Cody, D-Seattle, said she doesn’t understand why so many people seem to be so upset. Not even the most conservative Republican should be upset about a ban on using public money to promote unions, she said.

“It’s amazing how many people have gotten freaked out about it.”

Not Really Even-Handed

It’s not so simple, business lobbyists say. There are a good ten years of warfare behind that sentence. And even though it affects just two classes of workers that SEIU hopes to organize – long-term care workers and those who care for the developmentally disabled – business is sure it sees a camel’s nose under the tent.

            The line shows up as Section 205 (t) of the budget bill. It says: “No employer, provider or entity receiving state funds to provide long-term care services or services to the developmentally disabled may use these funds to assist, promote, or deter union organization.”

It sounds even-handed, right?

Well, just think about it for a moment, says Kris Tefft, lobbyist for the Association of Washington Business.

He asks: “How often do employers assist and promote union organizing?”

The only way it makes sense is if you understand the story behind it, Tefft said. “Anyone being honest and aware of the history of where it comes from would say that the purpose is to gag employers during an organizing drive.”

The strange thing about it, though, is that a California law tried the same approach as the SEIU budget amendment, and it already has been tossed out by the Supreme Court. Opponents like Tefft are scratching their head about that one.

            Labor Goes to Legislatures

It really has to do with the age-old battle between labor and management. Federal labor law governs most of what happens in that arena. When unions attempt to organize workers, managers are allowed to make their own case – the feds see it as a matter of free speech. Regulations merely prevent employers from making threats or promises.

Yet if business could be prevented from fighting back, labor’s chances might improve. And so, over the last decade, unions have begun turning to state legislatures to enact restrictions on business behavior. They have tried two approaches. The first is similar to the language that is contained in the House budget bill – a ban on “assisting, promoting or deterring” union organizing drives. Labor unions have pressed that idea in a variety of forms. California and New York passed laws extending the ban to all contractors receiving public money. Washington lawmakers rejected that idea. They also said no to a proposal that would have extended the ban to any business receiving a tax break from the state. Many saw that one as an obvious slap at Boeing.

The Supreme Court overturned the California law in 2008, saying states can’t preempt the National Labor Relations Act.

So labor went back to the drawing board. Its new plan was an attack on “captive meetings” – mandatory meetings called by employers to deal with politics, religion, charitable giving – and inevitably, union organization.

Union officials called it the Worker Privacy Act, and in Washington state it provoked one of the biggest blowups of the 2009 session. Labor described it as a matter of free speech. As Labor Council president Rick Bender explained it at the time:

“What party you belong to, how you practice your faith, whether or not you choose to join a union, participating in collective-bargaining and whether you choose to give to charity are all private decisions. At home or in a private community, you can decide to participate in a conversation on any of these matters as easily as you can choose not to participate in the conversation. But when an employer can force you to listen to or participate in non-job-performance related speech, upon threat of discharge, this becomes an illegitimate form of compulsion.”

            Business interests lined up in opposition. Not going to a company meeting is hardly a right spelled out in the constitution, they said – the real motive appeared transparent. At the time Boeing was still considering a location for its new 787 assembly line, and the aircraft manufacturer hinted darkly that the outcome might have something to do with its decision. Democratic legislative leaders searched for a way out.
            So the battle escalated. State Labor Council lobbyist Jeff Johnson threatened to withhold contributions from Democrats who voted the wrong way. An email leaked. Legislative leaders demanded an investigation by the Washington State Patrol. No wrongdoing was found. Legislative leaders announced they were spiking the bill for “ethical” reasons. Furious labor interests announced creation of a new political action committee, DIME-PAC, to provide union contributions directly to Democratic candidates who support the labor agenda, rather than funneling them through Democratic leadership. 

Meanwhile, the Oregon legislature passed the same bill, and it now faces a challenge in federal court.

Amendment Renews Battle

After what happened last year, it’s hard to believe that anyone would reopen that can of worms. SEIU maintains that it isn’t doing so.

“This budget proviso has nothing to do with the Worker Privacy Act,” SEIU’s Misha Werschkul said in a memo to legislators this month. It’s about the use of funds, Werschkul argued, not about captive meetings.

And Cody agrees. “It’s much ado about nothing,” she said.

Both point out that Medicare and state mental health laws already prohibit the use of public funds for promoting or deterring union activities.

Opponents say the budget language merely reflects Plan A, not Plan B. And if federal law already does the same thing, why pass a law?

The state’s adult family homes think they smell a rat. They’re one of the last frontiers for SEIU’s organizing efforts. Over the last decade the union has made a strong push to sign up community-care providers who receive state checks. They include many who have not been considered state employees in a traditional sense, such as relatives who care for their disabled children or parents.

            Craig Frederickson, spokesman for the Residential Care Council, said the budget proviso is designed to quiet the operators of adult family home operators when SEIU moves into that segment of the market. Frederickson, who operates a home in Kent with his wife, Janice, maintains many operators would likely be forced to close if employees have to start paying union dues. Low-paid workers can’t absorb the extra costs, he said, and the state certainly isn’t going to start paying operators more so that they might cover the bill.

            “The issue deserves a separate discussion, not just an item in the budget,” he said. “Why are we asking, ‘why not unionize?’ instead of looking at what’s best for vulnerable adults and going from there?”

            At the very least, he said, the Legislature might want to hold a hearing on the issue.

            Budget Debate Goes Underground

            State Rep. Bruce Chandler, R-Granger, was furious when he figured out what happened. A member of the House Ways and Means Committee, he said the effect of the amendment was never explained when the committee took its vote. “I am one of the biggest proponents of transparency in government, and this is a reversal of decades of work to make Washington’s government a more open, honest process,” he said. “If the majority wants to have another discussion about the employer gag rule, let’s have it. Hiding this in the 300-page budget bill only causes the people to question whether their government really wants them to know what happens in these halls in Olympia.”

            Chandler asked for an opinion from the office of state Attorney General Rob McKenna. Attorney Hunter Goodman responded that there is “striking similarity” between the budget language and the California law that was struck down by the Supreme Court, but given enough time, the office might find a way to defend it.

            Right now there appears to be a bipartisan effort to erase the sentence – though at this point the process is murky. Lawmakers are in a special session, most have gone home, and the decision-making Democrats are negotiating their deals in private. But some Democrats say privately they are as disturbed as Chandler: It’s a big decision to be making with a sentence in a budget bill.

            House Minority Leader Richard DeBolt, R-Chehalis, told an interviewer for TVW last week that he thinks Republicans have reached an agreement with House Speaker Frank Chopp, D-Seattle, to remove the line. “We read the budget [and] we found some language in the budget that we really disagreed with, with the gag bill, the union bill that was placed in the budget, and so we found that and went to the speaker and we got that removed, and that is good.”

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