Alvarez v. SEIU 775NW

Case 3:16-cv-05111-RJB Document 1 Filed 02/11/16 Page 1 of 26
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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON
AT TACOMA
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Kenneth Alvarez, an Individual Provider in

Washington,
NO. 3:16-cv-5111
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Plaintiff,
COMPLAINT FOR DECLARATORY

JUDGMENT
AND
INJUNCTIVE
RELIEF
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v.
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GOVERNOR JAY INSLEE, in His Official

Capacity as Governor of the State of Washington;
KEVIN W. QUIGLEY in His Official Capacity as
Director of the Washington Department of Social
and Health Services (DSHS), SERVICE
EMPLOYEES INTERNATIONAL UNION
HEALTHCARE 775NW (SEIU 775), a labor
organization; SEIU Healthcare NW Training
Partnership (Partnership),
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Defendants.
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I.
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1.
INTRODUCTION
This case seeks to enforce First Amendment protections against compelled receipt
of speech. The State is compelling Kenneth Alvarez (Plaintiff) and all other Washington State
individual providers (IPs) to receive Defendant SERVICE EMPLOYEES INTERNATIONAL
UNION HEALTHCARE 775NW (SEIU)s speech by 1) forcing a captive audience of IPs to
COMPLAINT
NO. 3:16-CV-5111
meet with SEIU and listen to its private, pro-union speech as part of IPs mandatory training; 2)
compelling a captive audience of IPs to receive SEIUs private, pro-union speech by devoting
certain areas of State offices that IPs necessarily frequent due to work-related business to SEIU
bulletin boards and attached leaflets; 3) forcing a captive audience of IPs to receive SEIUs
private, pro-union speech by devoting certain spaces on IPs mandatory payroll system to SEIU
messages.
2.
Plaintiff alleges that compelled receipt of SEIU speech via mandatory meetings
with SEIU, SEIU bulletin boards strategically placed in State offices necessarily frequented for
IP work-related business, and SEIU messages on a required State payroll system, violates his
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rights under the First Amendment to the United States Constitution, as secured against state
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infringement by the Fourteenth Amendment and 42 U.S.C. 1983, against compelled speech and
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the right to receive speech. This case concerns whether it is constitutional for a State to compel
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citizens to listen to and receive private, content-based and viewpoint-based speech.
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3.
This is a civil rights case pursuant to 42 U.S.C. 1983, seeking declaratory and
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injunctive relief. Defendants are state actors acting under the color of state lawspecifically,
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RCW 74.39A.360, RCW 74.39A.074, RCW 79.39A.341 and the 2015-2017 Collective
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Bargaining Agreement (2015-2017 CBA) between the Department of Social and Health
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Services (DSHS) and SEIU. Defendants have been depriving and continue to deprive Plaintiff
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and similarly situated IPs of their rights, privileges, and immunities against compelled speech and
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the right to receive and listen to speech under the First and Fourteenth Amendments of the United
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States Constitution.
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4.
This case also seeks to enforce the Washington Constitution, Art. 8 5, which
prohibits the State from giving or loaning its credit to any association. The State, pursuant to the
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NO. 3:16-CV-5111
2015-2017 CBA, has spent and will continue to spend thousands of dollars of public funds in
compelling IPs to meet with SEIU during State-funded work hours, where SEIU provides nothing
in exchange for such forced meetings. Thus, this case also concerns whether it violates
Washington constitutional law when the State gives publicly funded time and space to private
unions.
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This case also seeks to enforce RCW 42.52.160, which prohibits state officers and
employees from using any persons, money or property under the officers official control, for the
benefit or gain of another beyond a de minimis use. The State, pursuant to the 2015-2017 CBA,
has provided and will continue to provide SEIU with free use of States facilities, websites,
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organizational efforts, IP information packets and payroll systems for SEIUs private gain. Thus,
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this case also concerns whether it violates Washington statutory law when the State allows private
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entities unfettered and ongoing access to its public resources for the private entitys gain.
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6.
Plaintiff is an IP who receives state subsidies for the care he provides. Plaintiff
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brings this suit to enjoin and declare unconstitutional, under the First Amendment of the United
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States Constitution, Arts. 2.3, 2.4, 2.8 and 15.13(A) of the 2015-2017 CBA to the extent that those
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provisions compel IPs to listen to and receive private, pro-union speech. Plaintiff also brings this
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suit to enjoin and declare illegal Arts. 2.3-2.8 and 15.13(A) of the 2015-2017 CBA the extent that
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those provisions require the State to expend public resources for SEIUs private gain. Finally,
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Plaintiff brings this suit to enjoin and declare unconstitutional, under the Washington
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Constitution, Article 15.13(A) of the 2015-2017 CBA to the extent that the State spends thousands
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of dollars in forcing IPs to meet with SEIU and SEIU provides nothing in exchange.
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NO. 3:16-CV-5111
II.
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JURISDICTION AND VENUE
This Court has jurisdiction over this case pursuant to 28 U.S.C. 1331, because it
arises under the First and Fourteenth Amendments to the United States Constitution, 28 U.S.C.
1343, because Plaintiff seeks relief under the Federal Civil Rights Act of 1871, 42 U.S.C. 1983,
and because [t]he state and federal claimsderive from a common nucleaus of operative fact.
United Mine Workers of America v. Gibbs, 383 U.S. 715, 725 (1966). Additionally, this Court
should consider both the federal and state claims because doing so increases judicial econonomy
as well as convenience and fairness to the litigants. See Gibbs, 383 U.S. at 726. This Court has
authority under 28 U.S.C. 2201 and 2202 to grant declaratory relief and other relief for
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Plaintiff, including preliminary and permanent injunctive relief, pursuant to Rule 65 of the Federal
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Rules of Civil Procedure.
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8.
Venue is proper in this Court pursuant to 28 U.S.C. 1391 because the claims arise
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in this judicial district and Defendants do business and operate in this judicial district. Intradistrict
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assignment to the Tacoma Division is proper because the claims arose in Thurston County. Local
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Civil Rule 3(d).

III.
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9.
PARTIES
Kenneth Alvarez has worked as an Individual Provider since March of 2015 and
provides care to his fianc.

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Defendant Jay Inslee is Governor of Washington and is sued in his official capacity.
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As Governor, Defendant Inslee is Washington's chief executive officer and IPs employer solely
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for the purposes of collective bargaining pursuant to RCW 74.39A.270.
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NO. 3:16-CV-5111
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Defendant Kevin Quigley is the Director of the Washington Department of Social
and Health Services ("DSHS"), and is sued in his official capacity. DSHS is the state agency
responsible for administering personal care services under the States various Medicaid programs.
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SEIU is a labor union conducting business and operations throughout the State of
Washington with its headquarters located at 1914 N 34th Street, Suite 100, Seattle, WA 98103.
SEIU is the exclusive bargaining representative of Individual Providers pursuant to RCW
74.39A.270(2)(a), RCW 41.56.028, and In re SEIU Local 775, Decision 8241 at 2 (Oct. 9, 2003).
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Defendant SEIU Healthcare NW Training Partnership is a nonprofit 501(c)(3)
formed by SEIU Healthcare 775 NW and participating employers, including the State of
Washington, with its place of business located at 635 Andover Park W, Seattle, WA 98188.
IV. FACTUAL ALLEGATIONS
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A. Individual Providers and the State of Washington

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Individual Providers (IPs) provide personal care or respite care services, to
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persons who qualify for care assistance from the Department of Social and Health Services
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(DSHS). RCW 74.39A.240(3). Clients or consumers are elderly or disabled persons who have
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applied or are currently receiving services from DSHS. WAC 388-106-0010. Personal care
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services include physical or verbal assistance with activities of daily living and instrumental
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activities of daily living due to functional limitations. Id.
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DSHS pays IPs for the services they provide to the clients.
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Plaintiff has worked as an IP since March of 2015 and provides care to his fianc.
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B. The 2015-2017 CBA between SEIU and the State of Washington dictates IPs terms
and conditions of employment.
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IPs are public employees solely for the purposes of collective bargaining and
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have been organized into a single statewide bargaining unit. RCW 74.39A.270.
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18.
SEIU is the exclusive representative of the IP bargaining unit. See In re: Service
Employees International Union, Local 775, Decision 8241 Case 17799-E-03-2876 (PECB,
2003).1
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As the exclusive representative of the IP bargaining unit, SEIU engages in
collective bargaining with the State of Washington, as represented by the governor or the
governors designee. See RCW 41.80.005(2); 41.80.010(1).

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Collective bargaining means the performance of the mutual obligation of the
representatives of the employer and the exclusive bargaining representative to meet at reasonable
times and to bargain in good faith in an effort to reach agreement with respect to the subjects of
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bargaining specified under RCW 41.80.020. RCW 41.80.005(2); RCW 41.56.030(4). However,
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[t]he obligation to bargain does not compel either party to agree to a proposal or to make a
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concession. RCW 41.80.005(2).

C. The State, through the 2015-2017 CBA, compels IPs to receive SEIUs speech by
forcing a captive audience of IPs to: 1) meet with SEIU during mandatory IP
contracting appointments, basic training, and continuing legal education classes; 2)
receive SEIUs speech on bulletin boards that IPs necessarily frequent and 3)
receive SEIUs speech on a State-required payroll system.
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SEIU is a private entity.
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The 2015-2017 CBA provides SEIU with multiple instances of exclusive access to
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IPs for the purposes of disseminating pro-union speech during portions of mandatory events that
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Plaintiff and all other similarly situated IPs must complete as a condition of employment.
i. SEIUs Speech During Mandatory Contracting Appointments
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Available at http://www.perc.wa.gov/databases/rep_uc/08241.htm (last visited on Oct. 8, 2015).

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Pursuant to Article 2.3 of the 2015-2017 CBA, SEIUand only SEIUreceives
15 minutes from the State to meet with Plaintiff and other similarly situated IPs during contracting
appointments.2
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Plaintiff and other similarly situated IPs must attend contracting appointments as a
condition of employment.
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In the mandatory meetings with SEIU during contracting appointments, Plaintiff
must listen to and receive SEIUs private speech, which is unrelated to client-care training.
ii. SEIUs Speech During Mandatory Basic Training
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Pursuant to Article 15.13(A) of the 2015-2017 CBA, SEIUand only SEIU
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receives 30 minutes from the State to meet with Plaintiff and other similarly situated IPs during
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basic training for a presentation on Union issues.3

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Plaintiff and other similarly situated IPs must attend basic training, provided by
SEIU Healthcare NW Training Partnership, as a condition of employment.4
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Article 2.3 of the 2015-2017 CBA: Access to Contracting Appointments and Safety and Orientation Trainings.
The employer and its agents will take steps to consolidate contracting appointments into one (1) or two (2)
designated days of the week, and will inform the Union of the designated days for each office. However, the parties
acknowledge that in some cases due to emergent or unanticipated matters, individual providers may complete the
tasks ordinarily covered in the contracting appointments outside of the designated day(s) for that particular office. In
these exceptional circumstances the State will, on at least a weekly basis, provide a list to the Union of employees
that did not attend contracting appointments on designated days. The State will also provide fifteen (15) minutes for
a Union representative to meet with the individual provider(s) participating in the contracting appointments. If the
state office has regularly scheduled recurring times for individual providers to view the initial safety and orientation
training, the State will make the Union aware of these reoccurring meetings on an annual basis. The State will also
provide fifteen (15) minutes for a Union representative to meet with the individual provider(s). (emphasis added).
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Article 15.13(A) of the 2015-2017 CBA: Access to Training. (A) Union Presentation Compensation. The parties
agree that the Training Partnership shall provide the Union with reasonable access to its training classes, including
providing the Union with technical support for online learning, in order for the Union to make presentation on Union
issues. The Employer agrees to compensate up to thirty (30) minutes of time for a presentation on Union issues to all
individual providers receiving the Union portion of required basic training. The Employer agrees to compensate up
to fifteen (15) minutes of time annually for a presentation on Union issues to all individual providers receiving the
Union portion of required continuing education. Any additional time for a presentation on Union issues agreed upon
between the Union and the Partnership shall not be paid by the Employer.
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See RCW 74.39A.074 (all persons hired as long-term care workers must meet the minimum training requirements
in this sectionBefore a long-term care worker is eligible to provide care, he or she must completeSeventy hours
of long-term care basic training) (emphasis added); Individual Providers, Signing Up for Long-Term Care Worker
Training, WASHINGTON STATE DEPARTMENT OF SOCIAL AND HEALTH SERVICES (last accessed Feb. 7, 2016),
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with SEIU.5
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In the mandatory meetings with SEIU during basic training, Plaintiff must listen to
and receive SEIUs private speech, which is unrelated to client-care training.

iii. SEIUs Speech During Mandatory Continuing Education Classes
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The State pays Plaintiff and similarly situated IPs to attend mandatory meetings
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continuing education classes for a presentation on Union issues.6
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Plaintiff and other similarly situated IPs must attend continuing education classes
as a condition of employment.7
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In the mandatory meetings with SEIU during continuing education classes, Plaintiff
must listen to and receive SEIUs private speech.

iv. SEIUs Speech During Mandatory Bulleting Boards Necessarily
Frequented
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available at https://www.dshs.wa.gov/altsa/home-and-community-services/individual-providers; Checklist to

become a Individual Provider Home Care Aide Certified (last accessed Feb. 7, 2016) available at
https://www.dshs.wa.gov/sites/default/files/ALTSA/training/HCA%20Checklist%20for%20IP.pdf; What Training
Do I Need, MYSEIUBENEFITS.ORG (last accessed Feb. 7, 2016), available at
http://www.myseiubenefits.org/training/what-training-do-i-need/.
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See supra note 3.
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Id.
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See RCW 74.39A.341 (All long-term care workers shall complete twelve hours of continuing education training
in advanced training topics each yearCompletion of continuing education as required in this section is a
prerequisite to maintaining home care aide certification); Individual Providers, Signing Up for Long-Term Care
Worker Training, WASHINGTON STATE DEPARTMENT OF SOCIAL AND HEALTH SERVICES (last accessed Feb. 7,
2016), available at https://www.dshs.wa.gov/altsa/home-and-community-services/individual-providers; Checklist to
become a Individual Provider Home Care Aide Certified (last accessed Feb. 7, 2016) available at
https://www.dshs.wa.gov/sites/default/files/ALTSA/training/HCA%20Checklist%20for%20IP.pdf; What Training
Do I Need, MYSEIUBENEFITS.ORG (last accessed Feb. 7, 2016), available at
http://www.myseiubenefits.org/training/what-training-do-i-need/.
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33.
bulletin board space in the offices of the Employer, its agencies, contractors, or subcontractors
from the State.8
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The bulletin boards are placed in locations that Plaintiff and other similarly situated
IPs must necessarily frequent due to work-related business.9
v. SEIUs Speech On A Mandatory Payroll System
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space on the State-mandated online payroll system to place a link to SEIUs website and display
SEIU notification messages when IPs login.10

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Plaintiff and other similarly situated IPs must soon use the State-sponsored online
payroll system to receive payment when it is set up in the coming weeks.
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vi. States content-based and viewpoint based regulations allowing SEIUs

speech at mandatory meetings, on state bulletin boards, and on a payroll system
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During the State-mandated contracting appointments, basic training, and
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continuing education classes, SEIU promotes its organization, solicits funding, solicits
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2015-2017 CBA Art. 2.4: Union Bulletin Boards. The Union shall have a right to bulletin board space in the
offices of the Employer, its agencies, contractors, or subcontractors that individual providers necessarily frequent
due to work-related business. The Union shall be solely responsible for the costs and maintenance of all bulletin
boards. The Union will provide bulletin boards (no larger than two feet by three feet [2x3]). The bulletin boards
will be clearly marked as Union bulletin boards and will be maintained by Union worker representatives and/or
Union staff. Union communications may not be posted in any other location or agency.
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Id.
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Article 2.8 of the 2015-2017 CBA: Union Communication through Payroll Website. (A) Link to Employer
Website. The Employer shall display a link to the Union website on the opening webpage of the online payroll
website. The landing page for the Union website link supplied on the payroll website must be in compliance with
Chapter RCW 45.52. (B) Notification of Message from Union. When a home care worker logs into the payroll
website, the initial screen will include a notification of new message(s) from the Union. The notification box on the
initial page shall be sufficient to provide detail of sender and subject of the message. The subject matter and content
of the notification message shall be in conformance with Chapter RCW 42.52. The Union shall provide materials to
be included in the notification message no later than twenty-one (21) days prior to the day the notification will be
sent.
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membership, solicits donations to political committees, and extols its positions on matters of
public concern.
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on matters of public concern.

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SEIUs speech on bulletin boards promotes its organization and extols its positions
SEIUs speech on the online payroll system promotes its organization and extols
its positions on matters of public concern.

40.
Arts. 2.3, 15.13(A), 2.4, and 2.8 of the 2015-2017 CBA only permit SEIU speakers
who disseminate SEIUs speech on union-related issues. No other speaker is required or allowed
under the 2015-2017 CBA.11

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Neither union membership nor the payment of any dues or fees to SEIU is a
condition for Plaintiff, or any IP, to receive reimbursements/pay.

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Plaintiff cannot avoid listening to or receiving SEIUs speech during contracting
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appointments, basic training, and continuing education classes nor on bulletin boards when
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visiting State offices or using the online payroll system.

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Plaintiff objects to being compelled to listen to and receive SEIUs speech every
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time he and other similarly situated IPs undergo contracting appointments, basic training,
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continuing education classes, visit State offices for work-related business, or use the online
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payroll system.
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44.
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Freedom Foundation requested the State for the same speaking privileges and
access to IPs as the State gave SEIU pursuant to the 2015-2017 CBA on January 20, 2015.
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See Rosenberger v. Rector and Visitors of VA, 515 U.S. 819, 828 (1995) (In the realm of private speech or
expression, government regulation may not favor one speaker over another.); Bible Believers v. Wayne County,
Mich., 805 F.3d 228 (2015) (It is a fundamental precept of the First Amendment that the government cannot favor
the rights of one speaker over those of another.); American Freedom Defense Initiative v. Southeastern
Pennsylvania Transp. Authority, 92 F. Supp. 314, 324 (E.D. Pen. 2015) (if the government allows speech on a
certain subject in any forum, it must accept all viewpoints on the subject, even those that it disfavors or finds
unpopular.)
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Although the Foundation holds a different viewpoint than SEIU, it requested the opportunity to
speak on the same content on which SEIU spokei.e., union related issues. The Foundation
requested a response by February 1, 2015, and stated that a lack of a response would be construed
as a denial. The State failed to respond by February 1, 2015, or at all, and thus has denied the
Foundations request to speak on the same content but with a different viewpoint.
D. The State, through the 2015-2017 CBA, gives its money in the aid of SEIU.
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Pursuant to Article 15.13 of the 2015-2017 CBA, the State pays IPs to attend 15-
and 30-minute mandatory meetings with SEIU during basic training and continuing education
classes.12
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IPs wages range from $11.31 to $15.53 dollars per hour.13
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Thousands of IPs undergo basic training and continuing education classes each
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The State spends thousands of dollars of public funds in forcing IPs to attend
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year.
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meetings with SEIU in 15- and 30-minute appointments during basic training and continuing
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classes.
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continuing education classes does not further any fundamental government purpose.
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Forcing IPs to meet with and receive SEIUs speech during basic training and
SEIU does not provide any consideration for IPs paid time it receives from the
State.
E. The State, through the 2015-2017 CBA, uses its employees, money and property for
the private benefit of SEIU.
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See supra note 3.

2015-2017 CBA, Appendix A, Available at http://www.ofm.wa.gov/labor/agreements/15-17/nse_homecare.pdf
(last visited Nov. 23, 2015).
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51.
The State is the employer of IPs solely for the purposes of collective bargaining.14
52.
The 2015-2017 CBA establishes agency-wide rules for DSHS. Thus, DSHS
employees use of public resources for the benefit of SEIU is not limited to any particular DSHS
employee, but rather indicative of agency pattern and practice.

i. States use of State employee time for the aid of SEIU
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IPs time during contracting appointments.

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The State organizes and hosts required contracting appointments several times
throughout the year.

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Pursuant to Article 15.13(A) of the 2015-2017 CBA, the State gives SEIU 15
minutes of publicly funded time to meet with IPs during continuing education classes.
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Pursuant to Article 15.13(A) of the 2015-2017 CBA, the State gives SEIU 30
minutes of publicly funded time to meet with IPs during basic training.
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Pursuant to Article 2.3 of the 2015-2017 CBA, the State gives SEIU 15 minutes of
State-required basic training and continuing education classes occur several times
throughout the year.

58.
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It does not fall within the States official duties to force IPs to listen to pro-union
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speech for 15 minutes at every contracting appointment, 30 minutes during basic training, and 15
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minutes for every continuing education sessionspeech which promotes SEIUs organization,
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solicits funding, solicits membership, solicits donations to political committees, and extols
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SEIUs positions on matters of public concern.
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RCW 74.39A.270.
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59.
SEIUs privilege to meet with IPs during contracting appointments, basic training,
and continuing education classes is ongoing throughout the term of the 2015-2017 CBA, over and
beyond de minimis cost and value.

ii. States use of State property for the aid of SEIU
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Pursuant to Article 2.4 of the 2015-2017 CBA, the State allows SEIU bulletin
boards filled with SEIU materials in State offices that IPs necessarily frequent for work related
matters.15
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speech when visiting the necessarily frequented State officesspeech which promotes SEIUs
organization and extols its positions on matters of public concern.
62.
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SEIUs privilege to hang bulletin boards on State property is ongoing throughout
the term of the 2015-2017 CBA, over and beyond de minimis cost and value.
63.
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It does not fall within the States official duties to subject IPs to SEIUs pro-union
Pursuant to Article 2.5 of the 2015-2017 CBA, the State allows SEIU to post links
on State websites to SEIUs website.16

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It does not fall within the States official duties to allow, on State websites, links to
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SEIUs website which promotes SEIUs organization, solicits funding, solicits membership,
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solicits donations to political committees, and extol SEIUs positions on matters of public
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concern.
65.
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SEIUs privilege to post links on State websites to SEIUs own websites is ongoing
throughout the term of the 2015-2017 CBA, over and beyond de minimis cost and value.
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See supra note 8.

Article 2.5 of the 2015-2017 CBA: Websites. Websites maintained by the Department of Social and Health
Services (DSHS), Aging and Long-Term Support Administration (ALTSA) and Developmental Disabilities
Administration (DDA) that individual providers might reasonably access to seek employment-related information
shall contain a link to the Unions website, provided that the link is in compliance with Chapter RCW 42.52.
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66.
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Pursuant to Article 2.8(A) of the 2015-2017 CBA, the State must display a link to
SEIUs website in the opening webpage of the online payroll website.17

67.
Pursuant to Article 2.8(B) of the 2015-2017 CBA, the State-mandated online
payroll system requires that the initial screen will include a notification of new messages from
SEIU.
68.
It does not fall within the States official duties to allow, on State-mandated online
payroll system, links to SEIUs website and SEIU messages which promotes SEIUs
organization, solicits funding, solicits membership, solicits donations to political committees, and
extol SEIUs positions on matters of public concern.

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SEIUs privilege to post links on State-mandated online payroll systems and
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provide notification messages to all IPs logging on to the online payroll system is ongoing
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iii. States use of State money in the aid of SEIU
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Pursuant the Article 2.7 of the 2015-2017 CBA, the State must include SEIU
materials in State-paid paid envelopes mailed to out IPs.18
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See supra note 10.

Article 2.7 of the 2015-2017 CBA: Access to Pay Envelopes. The Employer agrees to include information
provided by the Union in pay envelopes sent to individual providers, subject to the following conditions: A. The
Union shall provide such materials to the Department no later than thirty (30) calendar days prior to the first day
upon which the Union requests that the materials be included in pay envelopes mailed to individual providers. B.
Except by consent of the Employer, the size and weight of such materials to be included in the pay envelopes for
any pay period shall not exceed two (2) pieces of printed materials, one (1) of which may be no larger than eight and
one-half inches by eleven inches (8.5x11) and no heavier than twenty pound (20lb.) weight, and the other of
which may be a pre-printed number ten (#10) or smaller return envelope of standard weight. C. The subject matters
and contents of any materials provided shall be in conformance with Chapter RCW 42.52. D. The Union agrees to
reimburse the Department for any increase in postage costs arising from the inclusion of the Union materials. E.
When feasible, the Employer shall provide the Union at least fourteen (14) days advance notice prior to sending a
mail communication to the entire individual provider group. In the event fourteen (14) days advance notice is not
feasible, the Employer will send the notice to the Union as soon as possible, but at a minimum, at the same time the
notice is sent to the entire individual provider group. (emphasis added).
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71.
It does not fall within the States official duties to include private, pro-union speech
in State-funded mailed packages at no cost to SEIU.

72.
SEIUs privilege to mail its materials paid for by the State is ongoing and
IV.
CLAIMS FOR RELIEF
COUNT I
The State violates Plaintiffs and similarly situated IPs First Amendment rights by compelling
a captive audience of IPs to receive SEIUs pro-union speech in three ways: i) by mandating
meetings with SEIU in contracting appointments, basic training, and continuing education
classes, ii) by SEIU bulletin boards in State offices necessarily frequented by IPs for workrelated matters; and iii) by SEIU links and notification messages on mandatory payroll
systems.
8
9
10
73.
Plaintiff re-alleges and incorporates by reference the paragraphs set forth above.
74.
The First Amendment to the United States Constitution, as secured against state
11
12
infringement by the Fourteenth Amendment and 42 U.S.C. 1983, guarantees each individual a
13
right to choose whether, how, and with whom she or he engages in speech. One of the paramount
14
concerns undergirding the First Amendment is the freedom of thought. To preserve freedom of
15
thought, the First Amendment protects the right to speak, the right to receive speech, and the right
16
against compelled speech.
17
75.
The State infringes on these First Amendment rights, and IPs freedom of thought,
18
when it implements content or viewpoint based policies that compel a captive audience of IPs to
19
receive private, pro-union speech. Captive audiences are audiences that 1) cannot readily avoid
20
speech, and 2) should not have to avoid that speech (i.e. have a certain need or right to be present
21
in the space where the speech is delivered). If compelled speech is content based, it must
22
withstand strict scrutiny to be constitutional under the First Amendment. Regulations concerning
23
speech can only withstand strict scrutiny if it is 1) narrowly tailored 2) to serve a compelling
24
COMPLAINT
NO. 3:16-CV-5111
15
government interest. Finally, speech is not government speech when it concerns a private
message not controlled by the government.
76.
SEIU is a private entity that speaks on its own, private behalf and not on behalf of
the government.
i. Mandatory Meetings
5
6
77.
15 minutes from the State to meet with Plaintiff and other similarly situated IPs during contracting
appointments.
78.
10
11
basic training for a presentation on Union issues.
12
79.
13
14
continuing education classes for a presentation on Union issues.
15
16
17
80.
During the contracting appointments, basic training, and continuing education
classes, Plaintiff and similarly situated IPs cannot readily avoid SEIUs speech.
81.
Plaintiff must attend the contracting appointments, basic training, and continuing
18
education classes and listen to and receive SEIUs speech during the contracting appointments,
19
basic training, and continuing education classes as a condition of employment.
20
82.
During the State-mandated contracting appointments, basic training, and
21
continuing education requirements, SEIU promotes its organization, solicits funding, solicits
22
membership, solicits donations to political committees, and extols its positions on matters of
23
public concern.
24
COMPLAINT
NO. 3:16-CV-5111
16
83.
The State denied the Freedom Foundation, a Washington nonprofit organization,
the same speaking privileges it gives to SEIU during contracting appointments, basic training,
and continuing education classes where the Foundation requested to speak on the same content
regarding similar union-related issues. SEIUs presentations are content based and viewpoint
based in favor of a pro-union viewpoint.
84.
No compelling state interest justifies compelling IPs to meet with SEIUand only
SEIUto receive and listen to pro-union speech during contracting appointments, basic training,
and continuing education classes.
85.
Forcing IPs to meet with SEIU is not narrowly tailored to any State interest.
10
86.
The State does not control the message SEIU gives to IPs during its presentations
11
at contracting appointments, basic training, and continuing education classes.

iv. SEIU Bulletin Boards
12
13
87.
14
bulletin board space in the offices of the Employer, its agencies, contractors, or subcontractors
15
from the State.
16
88.
17
18
19
20
When visiting the offices of the Employer, its agencies, contractors or
subcontractors, IPs cannot readily avoid SEIUs speech displayed on the bulletin boards.
89.
SEIU places its bulletin boards in State offices that IPs necessarily frequent for
work-related business.
90.
On SEIUs bulletin boards, SEIU promotes its organization and extols its positions
21
on matters of public concern. The State denied the Foundation the same speaking privileges it
22
gives to SEIU on bulletin boards, where the Foundation requested to speak on the same content
23
24
COMPLAINT
NO. 3:16-CV-5111
17
regarding similar union-related issues. Thus, SEIUs presentations are content based and
viewpoint based in favor of a pro-union viewpoint.
91.
No compelling state interest justifies the State in forcing a captive audience of IPs
to receive SEIU speech on bulletin boards when visiting State office for employment related
matters.
6
7
8
92.
offices is not narrowly tailored to any State interest.

93.
The State does not control the message SEIU gives to IPs on its bulletin boards.
v. SEIU Web Links and Notifications on the Online Payroll System
9
10
Forcing a captive audience of IPs receive SEIUs speech on bulletin boards in State
94.
11
space on the State-mandated online payroll system to place a link to SEIUs website and display
12
SEIU notification messages when IPs login.
13
14
15
16
17
95.
When using the online payroll system, Plaintiff and similarly situated IPs will not
be able to readily avoid SEIUs speech.

96.
Plaintiff and similarly situated IPs must use the online payroll system in order to
get paid.
97.
SEIUs website connected by the link on the online payroll system, and the
18
notifications on the online payroll system, promote its organization, solicit funding, solicit
19
membership, solicit donations to political committees, and extol its positions on matters of public
20
concern. The State denied the Foundation the same speaking privileges it gives to SEIU on the
21
online payroll system, where the Foundation requested to speak on the same content regarding
22
similar union-related issues but with a different viewpoint. Thus, SEIUs presentations are content
23
based and viewpoint based in favor of a pro-union viewpoint.
24
COMPLAINT
NO. 3:16-CV-5111
18
1
2
3
4
5
6
7
98.
No compelling state interest justifies the State in forcing IPs to receive SEIU speech
on the State-required payroll system.

99.
Forcing IPs to receive SEIU speech on the State-required payroll system is not
narrowly tailored to any State interest.

100.
The State does not control the message SEIU gives to IPs on the State-required
online payroll system.

101.
By and through Articles 2.3, 15.13(A), 2.4, and 2.8 of the 2015-2017 CBA, the
State has deprived, and will continue to deprive, Plaintiff of his constitutional right against
compelled speech and the right to receive speech by compelling listening to content-based and
10
viewpoint based speech, in violation of the First Amendment, as secured against State
11
infringement by the Fourteenth Amendment and 42 U.S.C. 1983. By giving SEIU time and
12
space to promote its organization and views, the State forces a captive audience of Plaintiff and
13
thousands of other similarly situated IPs to listen to and receive SEIUs private, content and
14
viewpoint-based speech. Articles 2.3, 15.13(A), 2.4, and 2.8 of the 2015-2017 CBA are
15
unconstitutional facially and as applied to Plaintiff and other similarly situated IPs.
16
COUNT II
17
The States expenditures in forcing IPs to meet with SEIU, when SEIU provides nothing in
exchange, violates WA CONST. ART. 8, 5.
18
102.
Plaintiff re-alleges and incorporate by reference the paragraphs set forth above.
103.
Article 8, 5 of the Washington Constitution prohibits 1) the credit of the state, in
19
20
any manner, 2) being given or loaned to, or in the aid of, 3) any individual, association, company
21
or corporation.
22
104.
Unconstitutional gifts are those i) not expended to carry out a fundamental
23
governmental purpose; and ii) given with donative intent or for a grossly inadequate return.
24
COMPLAINT
NO. 3:16-CV-5111
19
105.
The purpose of Washingtons constitutional prohibition against gifts or loans of the
states credit to assist private business is to prevent state funds from being used to benefit private
interests where the public interest is not primarily being served.
106.
IPs are public employees solely for the purpose of collective bargaining.
107.
Pursuant to Article 15.13 of the 2015-2017 CBA, the State pays IPs to attend 15-
and 30-minute mandatory meetings with SEIU during basic training and continuing education
classes.
8
9
10
11
12
13
14
15
108.
The State spends thousands of dollars of public funds in forcing IPs to attend
meetings with SEIU in 15- and 30-minute appointments during basic training and continuing
classes.
109.
Forcing IPs to meet with and receive SEIUs speech during basic training and
continuing education classes does not further any fundamental government purpose.
110.
SEIU does not provide any consideration for IPs paid time it receives from the
State. Lack of consideration is grossly inadequate consideration.

111.
By and through Article 15.13(A) the 2015-2017 CBA, the State has illegally gifted,
16
and will continue to illegally gift, thousands of dollars to SEIU without SEIU providing anything
17
in exchange, in violation of WA. CONST. ART. 8, 5.
18
19
112.
Article 15.13(A) of the 2015-2017 CBA is unconstitutional under of WA. CONST.
ART. 8, 5, both facially and as applied to Plaintiff.
20
COUNT III
21
The States use of its employees, money and property for the private benefit of SEIU violates
RCW 42.52.160.
22
113.
Plaintiff re-alleges and incorporates by reference the paragraphs set forth above.
23
24
COMPLAINT
NO. 3:16-CV-5111
20
114.
RCW 42.52.160 prohibits 1) state officers or employees 2) from using any person,
money or property under the officer or employees official control or direction 3) for the private
benefit or gain of another, 4) other than a) uses which fall under the state officers or state
employees official duties or b) qualify as de minimis use for specified purposes or enumerated
exceptions.
115.
the government.
116.
9
10
11
SEIU is a private entity that speaks on its own, private behalf and not on behalf of
The 2015-2017 CBA establishes agency-wide rules for DSHS, and DSHS
employees use of public resources for the benefit of SEIU is not limited to any particular DSHS
employee, but rather indicative of agency pattern and practice.
117.
The scope of collective bargaining is limited to wages, hours, and other terms and
12
conditions of employment, and the negotiation of any question arising under a collective
13
bargaining agreement. RCW 41.80.020(1). Thus, public resources spent in the aid of SEIU lie
14
beyond the scope of collective bargaining and the States official duties.
i. States use of State employee time for the aid of SEIU
15
16
118.
Pursuant to Article 2.3 and 15.13(A) of the 2015-2017 CBA, the State gives 15-
17
minutes and 30-minutes of IPs time during contracting appointments, basic training, and
18
continuing education classes.
19
20
21
119.
SEIUs compelled meetings with IPs benefits SEIU by forcing IPs to listen to and
receive pro-union speech.

120.
It does not fall within the States official duties to force IPs to listen to pro-union
22
speech for 15- and 30 minutes at every contracting appointment, basic training, and continuing
23
education sessionspeech which promotes SEIUs organization, solicits funding, solicits
24
COMPLAINT
NO. 3:16-CV-5111
21
membership, solicits donations to political committees, and extols SEIUs positions on matters of
public concern.
121.
The contracting appointments, basic training, and continuing education classes
where the State gives SEIU 15- and 30-minute blocks of time occur several times throughout the
year, above and beyond de minimis use.

ii. States use of State property for the aid of SEIU
6
7
122.
Pursuant to Article 2.4 of the 2015-2017 CBA, the State allows SEIU bulletin
boards filled with SEIU materials in State offices that IPs necessarily frequent for work related
matters.
10
11
12
123.
SEIUs bulletin board spaces benefits SEIU by forcing a captive audience to receive
SEIU speech on its bulletin boards.

124.
It does not fall within the States official duties to subject IPs to SEIUs pro-union
13
speech when visiting the necessarily frequented State officesspeech which promotes SEIUs
14
organization and extols its positions on matters of public concern.
15
16
17
18
19
125.
SEIUs privilege to hang bulletin boards on State property is ongoing throughout
the term of the 2015-2017 CBA, over and beyond de minimis cost and value.
126.
Pursuant to Article 2.5 of the 2015-2017 CBA, the State allows SEIU to post links
on State websites to SEIUs website.

127.
SEIUs links on the States websites benefits SEIU by 1) providing SEIU with
20
immediate and automatic access to all IPs at little or no cost to SEIU; 2) adding an illusion of
21
imprimatur of the State to the SEIU website at little or no cost to SEIU; 3) driving internet traffic
22
to SEIUs website, which increases exposure to SEIUs promotional materials and advertising
23
24
COMPLAINT
NO. 3:16-CV-5111
22
schemes geared to increase union membership, solicit donations to political committees, and extol
SEIUs positions on matters of public concern.

128.
It is not within the States official duties to provide free web space on highly
prominent, frequently visited and publicly funded websites, or promote union membership,
donations to political committees, or SEIUs positions on matters of public concern.

129.
6
7
130.
8
9
SEIUs privilege to post links on State websites to SEIUs own websites is ongoing
Pursuant to Article 2.8(A) of the 2015-2017 CBA, the State must display a link to
SEIUs website in the opening webpage of the online payroll website.

131.
10
Pursuant to Article 2.8(B) of the 2015-2017 CBA, the State-mandated online
11
payroll system requires that the initial screen will include a notification of new messages from
12
SEIU.
13
132.
It does not fall within the States official duties to allow, on State-mandated online
14
payroll system, links to SEIUs website and SEIU messages which promotes SEIUs
15
organization, solicits funding, solicits membership, solicits donations to political committees, and
16
extol SEIUs positions on matters of public concern.
17
133.
SEIUs privilege to post links on State-mandated online payroll systems and
18
provide notification messages to all IPs logging on to the online payroll system is ongoing
19
iii. States use of State money in the aid of SEIU
20
21
134.
Art. 2.7 of the 2015-2017 CBA requires State pay envelops, sent to IPs, to include
22
SEIU materials containing SEIUs speech and consisting of an 8.5 x 11 sheet and pre-printed
23
number 10 return envelope.
24
COMPLAINT
NO. 3:16-CV-5111
23
135.
Requiring publicly-funded mailings to include SEIU materials benefits SEIU by 1)
allowing SEIU to send its materials to IPs for free absent an increase in postage costs; 2) adding
an illusion of imprimatur of the State to SEIUs materials; 3) increasing IPs exposure to union
materials at little or no cost to SEIU.
136.
It is not within the States official duties to provide union materials to IPs in State
mailings, or promote union membership, donations to political committees, or SEIUs positions
on matters of public concern.
137.
SEIUs materials in State pay envelopes extend beyond de minimis use.
138.
By and through the 2015-2017 CBA Arts. 2.3, 2.4, 2.5, 2.7, 2.8 and 15.13(A), the
10
State has illegally utilized, and will continue to utilize, public resources for SEIUs private gain,
11
in violation of RCW 42.52.160.
12
139.
Accordingly, by and through 2015-2017 CBA Arts. 2.3, 2.4, 2.5, 2.7, 2.8 and
13
15.13(A), the State, through agency-wide pattern, practice, and policy, violates RCW 42.52.160.
14
VII. PRAYER FOR RELIEF
15
16
Wherefore, Plaintiff requests that this Court:

140.
Declaratory Judgment: Enter a declaratory judgment that Arts. 2.3, 2.4, 2.8 and
17
15.13(A) of the 2015-2017 CBA are unconstitutional under the First Amendment, as secured
18
against state infringement by the Fourteenth Amendment to the United States Constitution and
19
42 U.S.C. 1983, and are null and void;
20
141.
Declaratory Judgment: Enter a declaratory judgment that Articles 2.3, 2.4, 2.5,
21
2.7, 2.8 and 15.13(A) of the 2015-2017 CBA violate RCW 42.52.160 by requiring the State to
22
use public resources for SEIUs private gain, and that Articles 2.3, 2.4, 2.5, 2.7, 2.8 and 15.13(A)
23
are null and void;
24
COMPLAINT
NO. 3:16-CV-5111
24
142.
Declaratory Judgment: Enter a declaratory judgment that Article 15.13(A) of the
2015-2017 CBA is unconstitutional under the Wa. Const. Art. 8, 5, and that Article 15.13(A)
is null and void;
143.
Permanent Injunction: Issue preliminary and permanent injunction prohibiting
Defendants from enforcing Arts. 2.3, 2.4, 2.5, 2.7, 2.8, and 15.13(A) of the 2015-2017 CBA; and
any other activity that this Court declares illegal.
144.
Permanent Injunction: Issue preliminary and permanent injunctive relief
prohibiting the State from compensating IPs for their time during mandated meetings with SEIU
representatives;
10
11
12
13
145.
Costs and attorneys fees: Award Plaintiff costs and reasonable attorneys fees
pursuant to the Civil Rights Attorneys Fee Award Act of 1976, 42 U.S.C. 1988; and
146.
Other relief: Grant Plaintiff such other and additional relief as the Court may deem
just and proper.
14
15
Dated: February 11, 2016
16
17
18
19
20
21
22
By: s/Stephanie Olson

Stephanie Olson, WSBA #50100
James G. Abernathy, WSBA #48801
David M.S. Dewhirst, WSBA # 48229
c/o Freedom Foundation
P.O. Box 552
Olympia, WA 98507
p. 360.956.3482
f. 360.352.1874
[email protected]
[email protected]
[email protected]
23
24
COMPLAINT
NO. 3:16-CV-5111
25
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COMPLAINT
NO. 3:16-CV-5111
26

Alvarez v. SEIU 775NW

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Case 3:16-cv-05111-RJB Document 1 Filed 02/11/16 Page 1 of 26

UNITED STATES DISTRICT COURT

Kenneth Alvarez, an Individual Provider in

COMPLAINT FOR DECLARATORY

GOVERNOR JAY INSLEE, in His Official

Case 3:16-cv-05111-RJB Document 1 Filed 02/11/16 Page 2 of 26

citizens to listen to and receive private, content-based and viewpoint-based speech.

Case 3:16-cv-05111-RJB Document 1 Filed 02/11/16 Page 3 of 26

Case 3:16-cv-05111-RJB Document 1 Filed 02/11/16 Page 4 of 26

JURISDICTION AND VENUE

Rules of Civil Procedure.

Civil Rule 3(d).

provides care to his fianc.

for the purposes of collective bargaining pursuant to RCW 74.39A.270.

Case 3:16-cv-05111-RJB Document 1 Filed 02/11/16 Page 5 of 26

Defendant Kevin Quigley is the Director of the Washington Department of Social

SEIU is the exclusive bargaining representative of Individual Providers pursuant to RCW

Defendant SEIU Healthcare NW Training Partnership is a nonprofit 501(c)(3)

A. Individual Providers and the State of Washington

Individual Providers (IPs) provide personal care or respite care services, to

activities of daily living due to functional limitations. Id.

Case 3:16-cv-05111-RJB Document 1 Filed 02/11/16 Page 6 of 26

As the exclusive representative of the IP bargaining unit, SEIU engages in

governors designee. See RCW 41.80.005(2); 41.80.010(1).

Collective bargaining means the performance of the mutual obligation of the

concession. RCW 41.80.005(2).

SEIU is a private entity.

Available at http://www.perc.wa.gov/databases/rep_uc/08241.htm (last visited on Oct. 8, 2015).

Case 3:16-cv-05111-RJB Document 1 Filed 02/11/16 Page 7 of 26

Pursuant to Article 2.3 of the 2015-2017 CBA, SEIUand only SEIUreceives

In the mandatory meetings with SEIU during contracting appointments, Plaintiff

ii. SEIUs Speech During Mandatory Basic Training

Pursuant to Article 15.13(A) of the 2015-2017 CBA, SEIUand only SEIU

basic training for a presentation on Union issues.3

SEIU Healthcare NW Training Partnership, as a condition of employment.4

Case 3:16-cv-05111-RJB Document 1 Filed 02/11/16 Page 8 of 26

and receive SEIUs private speech, which is unrelated to client-care training.

Pursuant to Article 15.13(A) of the 2015-2017 CBA, SEIUand only SEIU

continuing education classes for a presentation on Union issues.6

must listen to and receive SEIUs private speech.

available at https://www.dshs.wa.gov/altsa/home-and-community-services/individual-providers; Checklist to

Case 3:16-cv-05111-RJB Document 1 Filed 02/11/16 Page 9 of 26

Pursuant to Article 2.4 of the 2015-2015 CBA, SEIUand only SEIUreceives

from the State.8

IPs must necessarily frequent due to work-related business.9

v. SEIUs Speech On A Mandatory Payroll System

Pursuant to Article 2.8 of the 2015-207 CBA, SEIUand only SEIUreceives

SEIU notification messages when IPs login.10

payroll system to receive payment when it is set up in the coming weeks.

vi. States content-based and viewpoint based regulations allowing SEIUs

During the State-mandated contracting appointments, basic training, and

Case 3:16-cv-05111-RJB Document 1 Filed 02/11/16 Page 10 of 26

on matters of public concern.

its positions on matters of public concern.

under the 2015-2017 CBA.11

condition for Plaintiff, or any IP, to receive reimbursements/pay.

Plaintiff cannot avoid listening to or receiving SEIUs speech during contracting

visiting State offices or using the online payroll system.

Case 3:16-cv-05111-RJB Document 1 Filed 02/11/16 Page 11 of 26

IPs wages range from $11.31 to $15.53 dollars per hour.13