Another day, another intentionally misleading, anti-labor editorial from the Seattle Times:
LAST year organized labor pushed a bill to restrict a company’s ability to talk to its employees. It was marketed as the Worker Privacy Act, and its aim was to shut up managers during the organizing of a union, so that only the union organizer would be heard.
That, of course, is a load of crap. The Worker Privacy Act would have done nothing to restrict a company’s ability to talk to its employees, it didn’t “shut up managers,” and would not have assured that only union organizers would be heard. Employers would have been just as free to oppose unionization as they are now, even to hold meetings expressly for that purpose. The only difference under WPA would be that employees would be equally free, if they so chose, not to participate in such non-work related meetings (regarding unions, religion, politics, etc.) without fear of retaliation.
As it stands now, your employer can call a meeting for the sole purpose of proselytizing and converting non-Christian workers, and then fire your ass if you walk out or choose not to attend. They can force you to attend a companywide Tea Party. Or they can crowd you into a room without a union representative, and cajole/harangue/threaten as much as they want in their effort prevent unionization. That’s the inequity the WPA sought to address.
No law like it existed in any other state.
You know, except for neighboring Oregon, and I’m guessing a few other states. But regardless, that’s an incredibly stupid argument prima facie. No other nation guaranteed freedom of religion, freedom of the press and freedom of speech at the time our First Amendment was adopted, so would that have been a reasonable argument to reject it? According to the Times, yes.
Business hated it, and Democratic leaders, elected with union support, found an excuse to kill it.
In a hyperbolic charade intended to provide political cover for scuttling the bill, Democratic leaders literally called the cops on labor over an internal email that state troopers and other watchdogs ultimately laughed off. And the Times presents this as a good thing?
The spirit of this bill resurfaced deep in the 292-page budget measure, ESSB 6444, moving through the Legislature. Certain employers receiving state funds would be forbidden “to use these funds to assist, promote, or deter union organization.” The “or deter” is what this is about.
This restriction is not for all employers. It is only on those providing long-term care or services to people with disabilities. But the principle is the same: The state would use its spending power to favor unions.
You gotta be kidding. The 30-word provision in question has absolutely nothing to do with the WPA. The WPA would have protected workers from retaliation when choosing not to participate in workplace communications related to issues of conscience. On the other hand, here is the specific language to which the Times objects:
“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.”
Would the Times object to the provision had the word “deter” been deleted? No, of course not. Indeed, the Times wouldn’t even have been aware of the provision had it not been brought to their attention by the Association of Washington Businesses. (You don’t think the Times’ editors are actually in the habit of reading 292-page bills, do you?)
In fact, the provision is actually quite evenhanded, as it prohibits an “employer, provider, or entity” from using state funds to “assist” or “promote” union organization, as well as to “deter” it — specifically and only within the context of providing long-term care to the developmentally disabled. And yes, there are union “entities” that receive state funds for the purpose of providing training to long-term care workers, that would fall under this provision, so it does impact employers and unions alike.
Oh, and it’s not like this provision was added without provocation. Long-term care employers have used state funds to hold mandatory “training” meetings for the purpose of deterring union activities… and they’ve been caught on video. The Times is all gung ho about reducing the footprint of state government while protecting seniors from shoddy long-term care, yet apparently the editors believe mandatory anti-union meetings to be an appropriate use of taxpayer funded training dollars. Go figure.
Here, not coincidentally, the benefit would go the state’s most politically aggressive union, the Service Employees International Union (SEIU).
And here, not coincidentally, is the crux of this issue. The Times just hates SEIU, and thus anything SEIU supports, the Times opposes. SEIU = evil incarnate.
Compared to the whole economy, long-term-care homes are not large. But if this provision goes through once, it will be used again. “We view this provision as a crossing of the Rubicon,” said Kris Tefft, counsel to the Association of Washington Business.
AWB = second coming of Christ on Earth.
Oh… and I’m sure SEIU and the provision’s sponsor were asked to provide a comment too, but just never got around to it.
Let us be clear: Under federal labor law, unions can speak to workers. So can employers. A state cannot abridge the rights of either side. The U.S. Supreme Court said so recently in Chamber of Commerce v. Brown (2007). There the Court threw out a California law that forbade any employer receiving $10,000 in state money from using it “to assist, promote or deter union organizing.”
Let us be clear: the Seattle Times editorial board has the legal acumen of a walnut, and is no more in the habit of reading (let alone understanding) obscure court opinions than it is of spelunking through the details of 292-page legislative bills. Like the provision in question, the Times was only made aware of this court case through the tireless PR efforts of the water-walking, loaves-and-fishes-multiplying AWB, and you can be pretty damn sure that the Times’ interpretation of Chamber of Commerce v. Brown came straight from the mouth of AWB. So forgive me if I don’t take it at face value.
In fact, Chamber of Commerce v. Brown appears to very narrowly focus on whether or not the National Labor Relations Act preempts state restrictions that attempt to regulate employer speech about union organizing under circumstances where Congress intended free debate. A quick reading of both the decision and the dissent makes it clear that the entire case rests on interpreting Congressional intent.
But while the California statute rejected under Chamber of Commerce v. Brown was broad, the particular provision to which the Times objects (at the apparent behest of AWB), merely seeks to reiterate a policy that is already in federal Medicare and Medicaid law, and thus unambiguously sanctioned by Congress. The Medicare provider manual states that “Costs incurred for activities directly related to influencing employees respecting unionization or related to attempts to coerce employees or otherwise interfere with or restrain the exercise of employee rights under the NLRA are not allowable costs for program purposes,” and a few minutes of Googling reveals that this language is duplicated in state Medicaid regulations throughout the nation. (Minnesota, North Dakota and Alabama, for example.)
The ruling was 7-2, with the Court’s senior liberal, Justice John Paul Stevens, laying down the law.
Well, as long as the Times is lauding a liberal justice — you know, when it believes it suits its purpose — let’s take a look at what Justice Stevens actually wrote:
[T]he mere fact that Congress has imposed targeted federal restrictions on union-related advocacy in certain limited contexts does not invite the States to override federal labor policy in other settings.
That is the heart of the majority opinion, and since ESSB 6444 imposes targeted advocacy restrictions within the exact same limited context and setting as that already provided under federal law, it is clearly permissible, and the Times application of Chamber of Commerce v. Brown to ESSB 6444 is clearly wrong. Ignorant, misinformed, boneheaded wrong.
The same language Justice Stevens struck down has been in and out of the budget bill in Olympia. It is a bad provision and has to stay out.
Like I said… the legal acumen of a walnut.
But then, that’s the kind of foolishness that comes from letting your hatred of organized labor get in the way of the facts.