Washington HB 1329 Dies in Senate Ways & Means CommitteeHB 1329, a bill spearheaded by the Service Employees International Union (SEIU) in Washington State, died last night in the Ways and Means Committee of the Washington State Legislature. It was a bill that would have forced collective bargaining on all Child Care Center directors and workers, including private and religious.
Two nights ago, Tom Emery, Executive Coordinator for the Washington Child Care Alliance (WCCA), and Executive Director of the Washington Association of the National Child Care Association (NCCA), learned from their legislative advocate, Cody Benson, that State Senators Steve Hobbs and Brian Hatfield decided to kill this bill in the Ways and Means Committee, where they serve as influential members. Losing these two votes caused the bill to die a timely death in this Committee, where bills typically find their resting place as “dead letters.” According to Ms. Benson, the SEIU lobbyists were quite surprised by this sudden outcome. Today, March 2, was the cutoff date for any bills to be heard or to emerge from Senate Committees. While the bill could be referenced in the budget battle, and thus brought to the Senate floor for a vote, this is not likely going to happen based on NRLA’s experience at being at this stage of a bill-killing effort. It’s remotely possible, but not likely. This was confirmed by Clark County (Vancouver, Wash.) District Senator Joseph Zarelli in a meeting with Ms. Benson.
That said, it is very likely that this bill will reemerge during Washington’s long legislative session in 2011. The Northwest Religious Liberty Association (NRLA) will band together with Mr. Emery and the WCCA, as well as the Washington Federation of Independent Schools (WFIS), and others, in a marathon effort to continue to defeat this and similar bill efforts. One of the legislative tactics used by House and Senate members supportive of the SEIU’s latest tactic of going after the private sector is to put forward multiple bills, which makes it harder for the opposition to defeat all of them during a given legislative session. We will need to watch and prepare for that in advance by shoring up our opposition support in both the House and Senate.
In the meantime, I would like to especially thank National Right to Work Foundation attorney Bruce Cameron who provided NRLA with superb “talking points” based on court cases that he filed and litigated involving landmark legal precedents that weighed in our favor in the effort to defeat this bill. Attorneys Nicholas Miller of Andrews University in Michigan, and Michael Peabody, an attorney who practices law at a prestigious law firm in Southern California, were also significant in assisting NRLA in drafting its “talking points.”
Rhonda Bolton, NRLA’s administrative assistant, provided logistical support by scheduling face-to-face appointments for Greg Hamilton with every Washington Senator and their legislative staffs. Many of his appointments were 15-minutes apart with three buildings and numerous floor levels to navigate. Of the 49 State Senators, Greg Hamilton, President of the Northwest Religious Liberty Association (NRLA), met with 23 of them face-to-face, and the other 26 with chief legislative aides, during a week-long lobbying effort to defeat the bill in case it came up for a vote in the Senate. Admittedly, it was a “Johnny come lately” effort, since we did not initially understand the full import of the bill and its potential devastating consequences to denominationally owned and operated child care centers, such as Seventh-day Adventist and other denominationally based centers, including 501(c)3 faith-based, and non 501(c)3 faith-based, centers.
Mr. Hamilton was able to secure 10 solid “No” votes out of 31 on the Democrat side of the aisle, and 15 “No” votes out of 18 Republicans on the other side. 25 votes was barely enough to deter the bill from making it out of each respective Party’s Caucus, which is the administrative level where bills are ultimately determined before they go to the Senate floor for an actual vote, even after they successfully emerge from the Committee or Committees that have held public hearings and voted to pass them on for a Senate floor vote. The bills then receive a third reading and then are officially scheduled for a vote on the Senate floor. In other words, another way of making sure a bill is successfully defeated is to work all the Senators offices to get firm “yes” or “no” voting positions from them, both early on and during the later stages of the bill’s progress. This also helps Senate Committee members in a given Committee to count heads and determine whether the bill is even “winnable.” That can make a huge difference in attempting to defeat a bad bill that would damage the religious freedom rights of Washington’s citizens.
As some of you know, the Northwest Religious Liberty Association represents the constitutional and workplace discrimination concerns of all people and institutions of faith in Alaska, Idaho, Montana, Oregon and Washington. Therefore, NRLA’s efforts to defeat this bill were in behalf of all private and religious child care centers with a religious mission—the big guys and the little guys that needed our last minute assistance.
KEY TALKING POINTS
1) Regardless of the voluntary opt-in language in the Striking amendments, it is not entirely clear which child care centers qualify for exemption and which do not.
a) The composite side-by-side graphical “Comparison of House Bill and Striking Amendment,” as well as the bill itself, does not make this point clear. While owners or operators can choose to opt-in, the current Service Employees International Union’s (SEIU’s) qualification standard—as traditionally applied and practiced over the last five years involving individual labor-union exemption requests by employees, and as confirmed in the Senate Bill Report—is that only those child care center operator-owners who hold to a bona fide religious belief that discourages labor union membership qualify to not opt-in.
b) In other words, because of the lack of qualification specifics, the House version of the bill, including the Striking amendments, appears (based on traditional SEIU qualification standards) to violate Federal Title VII law by limiting qualification to only owners and operators of one particular religious denomination—those owned and operated by the Seventh-day Adventist Church, whose policy encouragement statements are based on prophetic counsel and Scriptural mandates, and date back to the late 1800’s. This leaves out all other 501(c)3 faith-based centers, as well as non 501(c)3 faith-based centers, from SEIU’s qualification standard.
c) Title VII law protections for individual employees and employer-owners are inherently “inclusive” in purpose and affect, and therefore not “exclusive.” This was made clear in two specific Federal Circuit Court rulings, one in 1990 and the other in 2007. In 2007, U.S. Sixth Circuit Judge Gregory L. Frost ruled in Katter v. Ohio Employment Relations Board (2007) that it is discriminatory and therefore unlawful to only recognize Seventh-day Adventist and Mennonite objections to joining unions while denying Catholics and others the ability to refuse dues to labor unions whose views they find immoral on religious grounds.1
d) In addition, the Service Employees International Union’s (SEIU’s) qualification standard, or legal assumption (because that is what it is, a legal assumption not founded in federal or state law), violates the U.S. Supreme Court’s free exercise of religion injunction in Frazee v. Department of Employment Security, 489 U.S. 829 (1989) that the legal accommodation of a religious exemption claim does not require an individual’s sincerely held religious belief to be attached to “a particular religious organization” or “tenet” established by the same.2 (See pages 10, 34-37; and page 11, lines 1-3, of the Senate version of the House Bill.)
2) There are no exemptions for individuals once 30% of regional owners choose to opt-in, in a given regional district. This represents the SEIU’s attempt to use the state in a heavy-handed way to force the unionization of all child care centers throughout Washington State.
This appears to also violate Federal Title VII law which requires—under Contract Bargaining Agreement (CBA) law, and as established in numerous court rulings involving the National Labor Relations Board (NLRB)—exemption of employees who conscientiously object to labor union membership in any and all labor union “shops,” and particularly those whose denomination’s religious teachings specifically encourage them to do so. This includes exemption from union membership, with the monthly payment of membership dues sent to an acceptable and mutually agreed charity of their choice. (This argument corresponds with the first one above regarding the question of who actually qualifies for exemption under the law.)
3) Denominationally-based child care centers, whose mission purpose is not focused solely on delivering social services, could be negatively impacted and irreparably affected if the newly proposed competitive system for receiving annual Department of Social and Health Services (DSHS) subsidies ended up favoring public over private and religious child care centers, as well as favoring private and religious child care centers that choose to opt-in over those that do not.
The way we read it the bill continues to imply that those who choose to not opt-in would violate the U.S. Supreme Court’s “constitutional conditions” legal standard established in numerous rulings, which says, essentially, that any discriminatory affect evidenced by the systematic withdrawing of funding to an otherwise eligible faith-based services provider violates the Free Exercise Clause of the First Amendment.
4) This would negatively affect low-income families due to the fact that the state relies, to a considerable degree, on denominationally-based, and 501(c)3 faith-based, centers to provide needed services to disadvantaged families.
5) Regardless of the voluntary opt-in language in the Striking amendments, this does not satisfy constitutional Free Exercise Clause standards originating in both the First Amendment of the U.S. and Washington State constitutions.
a) This is because it fails to insure religious institutional “autonomy” by the presumption that the price of choosing NOT to opt-in is monthly union membership dues, even if it is to a mutually agreed to charitable organization of their choice.
b) In turn, this opens the door for the state, through the SEIU’s direction, to place and enforce new “discrimination” standards for hiring and put in jeopardy the stated mission and purpose of private and religious child care centers.
c) There are no compelling state reasons from a constitutional standpoint to warrant this potential outcome, not even the reasonable argument that the state needs to assert better oversight over all child care centers.
d) The simple solution to this—and the way to avoid the current legislative intent and thrust of this bill—would be to follow Senator Paull Shin’s suggestion which is to simply license all child care centers with an attached rating system like in Oregon and get the Unions completely out of any future bill proposal to improve child care. A child care center that followed the minimum required state standards would receive the minimum amount of state DSHS subsidies, including annual increases. In one aspect, the new system would be similar to state accreditation standards for other educational centers, and would model Oregon’s system.
6) State-mandated unionization of private enterprises as indicated in HB 1329 constitutes, under federal law, undue and disproportionate governmental regulation and control of private child care centers.
The amendment that was offered to the Senate Ways and Means Committee on March 13, 2009, and rejected the same day—to “Exempt churches and religious centers from the bill”—provides documentary evidence that this was the initial legislative intent of this bill.4
Based on these arguments, the Northwest Religious Liberty Association (NRLA) urges you to re-evaluate the constitutional validity of this bill.
1 Katter v. Ohio Employment Relations Board, 492 F.Supp.2d 851 (S.B. OH 2007). See also Wilson v. NLRB, 920 F.2d 1282 (6th Cir. 1990). See http://www.dispatch.com/live/content/local_news/stories/2007/06/26/UNION.ART_ART_06-26-07_A4_B274MCT.html.
2 Frazee v. Department of Employment Security, 489 U.S. 829 (1989), at 831, 834.
3 HB 1329 (a) retroactively impairs preexisting contractual arrangements in violation of the Fifth Amendment of the United States Constitution due process clause, (b) violates the takings clause of the Fifth Amendment, (c) is unconstitutionally vague. HB 1329 attempts to govern the protected conduct of religious institutions and nonprofits which oppose unionization for reasons judicially recognized as implicating their right to free exercise of religion. It is further constitutionally vague as it represents state usurpation of corporations” free speech rights in the union certification process in accord with the Taft-Hartley Act of 1941. HB 1329 would be subject to federal pre-emption.
4 “On page 10, after line 23 of the amendment, insert the following: ‘(b) Child care centers does not include a child care center that is operated, supervised, controlled, or principally supported by a church or religious center.’”