The U.S. Supreme Court in 2018 told public employees who don’t want to pay for union political activity they oppose that they have a friend in the U.S. Constitution. Defending individual worker’s free speech rights, the court ruled in Janus v. AFSCME that government employee unions cannot force fees onto those who are nonmembers of the union.
Yet the leadership of the Pennsylvania State Education Association (PSEA) teachers union and its local affiliate, the Abington Heights Education Association (AHEA), are trying to force fees on teachers who have resigned their membership.
Despite Janus outlawing public-sector union fees as a condition of employment for nonmembers, key provisions of Pennsylvania’s labor statute allow “fair-share fees,” which are fees charged to nonmembers.
Unions have made the argument that there should be no “free riders” since they theoretically represent all workers, including nonmembers, in collective bargaining. But in Janus, the court found that the collective bargaining process itself intersects with a range of public policy positions that employees should not be forced to subsidize.
“Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay,” Justice Samuel Alito wrote in the majority opinion for Janus. “By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed.”
Additionally, the Pennsylvania statute lets government unions establish “maintenance of membership” stipulations that bar public employees from resigning from their union anytime outside of an approximately two-week window at the end of a collective bargaining agreement. That means, while workers may decide to resign, unions can force them to maintain membership and keep paying dues against their will for years.
Teachers Receiving ‘Threatening’ Letters From Unions
David Perrotti, a Scranton-area public school teacher, filed a federal lawsuit against the PSEA and the AHEA over their ongoing recalcitrance. The case could have significant ramifications for government unions in Pennsylvania and in other states that allow unions to sidestep the law.
A union member since 2004, Perrotti resigned from the AHEA on November 20, 2020. Nevertheless, AHEA sent “threatening” letters to Perrotti demanding that by August 31 he pay the union full dues — $722.40 — for the membership year in which he resigned. But, as a nonmember, Perrotti “never agreed to pay” that money, according to the civil suit filed in June by the Fairness Center, a nonprofit law firm based in Harrisburg, Pennsylvania.
The basis of the union’s claim is a provision in the collective bargaining agreement, which runs through August 31, 2022, requiring nonmembers to pay fees to the union and limiting when members can resign from the union. The union claims Perrotti missed the window in which he was allowed to resign and thus owes back dues. But under Janus, the court ruling makes it clear that employees who are not union members cannot be coerced into paying the union out of their paychecks.
“There’s no debate about the fact that David Perrotti is no longer a union member even though union officials demand he pay what they view as back dues,” Danielle Acker Susanj, an attorney with the Fairness Center, said in an interview. “But it’s our position that the U.S. Supreme Court has made it very clear that nonmembers cannot be forced to pay unions. The letters seem threatening, and they contain no acknowledgment of Perrotti’s constitutional rights.”
Susanj says Perrotti’s case is not unique and the Fairness Center has represented at least five other teachers who have, after resigning from their union, received threatening letters from the PSEA affiliate demanding that they send in money for the entire year in which they resigned.
“Basically, the unions are trying to bully teachers into writing checks as a penalty for resigning,” Susanj said.
“Teachers who are busy taking care of their students and who are busy with their profession, can’t be expected to be experts on constitutional law,” she said. “They’ve had enough going on this past year and a half to keep their students safe, and when they see these fair-share fees in contracts, they don’t know they are illegal and unconstitutional.”
Pennsylvania’s Labor Statutes Violate Federal Law
The Fairness Center is asking the court to impose a permanent injunction that would prevent the unions from collecting and attempting to collect any dues or fees from Perrotti.
Perrotti’s complaint also challenges key provisions of Pennsylvania’s labor statutes that violate federal law. It is within the purview of a federal court to overturn a state laws that violates the Constitution.
PSEA affiliates included fair-share fee provisions in up to 20 contracts signed across the state after Janus, many of which are still in effect.
Unions Switching Tactics to Collect Dues
Nathan McGrath, president and general counsel for the Fairness Center, detects a shift in strategy on the part of public employee unions that have been working to undercut the Janus ruling.
“What we’re seeing with our clients’ situations is that unions are finding ways to keep taking the money of former members,” McGrath said. “I think when the unions found that they weren’t getting away with denying our clients’ resignations they decided to take a new path. Some larger collective bargaining agreements in place for thousands of public employees in Pennsylvania have abandoned these resignation restrictions. What they say now to someone who resigns is that they can get out of the union, but they still have to pay.”
So long as state labor laws and union contracts contain language that is incompatible with workers’ free speech rights, McGrath anticipates it will be necessary to continue challenging union tactics in court.
Consequently, the burden will fall to individual public employees to pursue litigation against illegal labor practices that should be addressed legislatively.
By taking principled stands on behalf of their constitutional rights, McGrath finds that public employees in Pennsylvania have helped to bring about widespread change not just for themselves but for all public workers across the country who face resistance from union officials when workers seek to exercise free speech.