Two critical union cases before Supreme Court

By Tom McCabe
President of the Freedom Foundation
This article provided by Oregon Transformation Newsletter.

Recently, the Freedom Foundation asked the U.S. Supreme Court to consider two critical legal cases in our battle to free public employees from government union tyranny.

Belgau v. Inslee argues that the court’s 2018 ruling in Janus v. AFSCME did more than just affirm that government employees cannot be forced to join a union or pay dues as a condition of employment. The majority opinion in the Janus decision also noted that workers who choose to join a union and pay dues anyway are waiving their right not to. In layman’s terms, this means a signed membership card isn’t enough. Before it is considered valid, the union must first be able to prove the worker understood he or she had the right not to sign – and voluntarily waived that right. Taken literally, Janus should have immediately terminated virtually every public employee union membership agreement in the country.

The second Freedom Foundation case is Boardman v. Inslee, which would overturn Washington state’s Initiative 1501. Five years ago, Washingtonians were the victims of a massive fraud perpetrated and funded by the Service Employees International Union (SEIU). I-1501 was billed as a way to crack down on identity theft targeting seniors and other vulnerable Washingtonians. Its true purpose was to exempt union-represented homecare providers from the public information requirements that cover every other government employee in the state in order to prevent the Freedom Foundation from accessing their contact information and informing them about their rights to decline union participation.

Without access to this data, it’s nearly impossible to give workers an opportunity to opt out of their union.

What are the odds the U.S. Supreme Court will accept either of our cases? While the optimist in me says both, the realist says the Boardman case has the better shot. Here’s why.

We have a great legal team led by Paul Clement, former solicitor general of the United States. Assisting Paul are Susan Stahlfeld, partner of the Seattle law firm Miller Nash, and several in-house attorneys at the Freedom Foundation.

We have a stellar minority opinion from the 9th Circuit. Usually, conservative groups like the Freedom Foundation lose cases in the 9th Circuit unanimously. In Boardman, the majority ruled that the government may provide lists of in-home care providers only to the union (SEIU), but Judge Bress wrote a scathing dissent explaining that the majority opinion will preclude anyone outside the unions from communicating to workers about their rights.

We have brave clients right out of central casting. Brad Boardman, Shannon Benn and Deb Thurber selflessly care for the neediest of the needy in our society.

We have 13 separate “friend of the court” briefs urging SCOTUS to hear our case. These briefs are from the right and the left – including a brief from Allied Daily Newspapers representing the Seattle Times, Spokesman Review, Tacoma News Tribune and 23 other newspapers in Washington State. The newspaper brief states that “depriving workers of any meaningful ability to receive information challenging the views and efficacy of their unions is antithetical to the principle that favors uninhibited, robust and wide-open debate in labor disputes.”

Thirteen different state attorneys general wrote a supporting brief that says, “However much the unions hate the anti-union message of the Freedom Foundation, the First Amendment protects that message.” We have a great record that demonstrates clearly that the unions desire viewpoint discrimination.

Although the Boardman case may have the better chance for Supreme Court consideration, both cases are game changers. They are the result of years of tireless litigation against powerful public sector unions and their government lackeys, like Gov. Jay Inslee. We’ve fought the battle well and teed up two great cases for the court’s consideration. Now let’s pray the court does the right thing. The only thing sweeter than a victory in one or the other would be to triumph in both.