A Pennsylvania public school teacher who sued a teachers union for attempting to charge him dues despite no longer being a member entered into a settlement this fall that reaffirms the constitutional rights of government workers who do not want to subsidize political activism they do not support.
Until recently, those rights had been subjugated to the commonwealth’s labor laws, which allow unions to charge nonmembers “fair share fees” as a condition of their employment. The Pennsylvania statute also allows government unions to establish “maintenance of membership” provisos that prevent public employees from resigning from their union anytime outside of an approximately two-week window at the end of a collective bargaining agreement. What this meant in practice was that unions could compel workers to maintain their membership and continue to pay dues against their will, in some cases for years on end.
But times are a-changing thanks to a recent U.S. Supreme Court ruling and to the heavy lifting of David Perrotti, a Scranton-area public school teacher. He resisted “threatening” letters demanding that he pay union dues despite the fact that he resigned from the Abington Heights Education Association (AHEA) on Nov. 20, 2020. While union officials did not dispute Perrotti’s resignation, they claimed he owed back dues because he missed their window for resignation.
A few weeks after resigning, the Pennsylvania teacher received the first of several “collection letters” demanding he pay dues in the amount of $722.40 by Aug. 31, 2021. But another date blew a hole in the union’s argument and helps to explain why Perrotti secured a settlement that frees him and other government employees from union demands. The collective bargaining agreement between Abington Heights School District, where Perrotti teaches, and the AHEA was signed on April 3, 2019.
Unions Are Illegally Ignoring SCOTUS for Money
That matters because it means the union forged the agreement several months after the U.S. Supreme Court invalidated mandatory union dues and fees for public-sector workers in its June 2018 ruling in the case known as Janus v. AFSCME. Apparently, the AHEA, an affiliate of the Pennsylvania State Education Association, decided to ignore the court’s decision and coerce employees into paying union dues and fees anyway. This is not an isolated incident.
Nathan McGrath, president and general counsel of the Fairness Center, sees a deliberate strategy from unions to undermine the Janus ruling. The fact that the Pennsylvania State Education Association, and affiliates like the AHEA, inserted fair share fees into contracts after the high court invalidated those same union fees speaks to the need for added legal pressure at the state level, he explained.
“The Supreme Court settled the issue of nonmembers paying union fees three years ago, but there’s still a lot of work to be done,” McGrath said. “Union officials continue to disregard employees’ rights and use underhanded tactics to keep nonmembers paying union fees.”
SCOTUS: Unions Can’t Force Fees on Nonmembers
In his majority opinion for the court, Justice Samuel Alito made it clear that unions could not collect fees from nonunion members who are public employees without the “affirmative consent” of those employees. In other words, the union position is no longer the default position. Under Janus, nonunion members must make a conscious decision to pay a union rather than jumping through hoops to either resign their membership or refrain from joining in the first place.
Perrotti, who had been a union member since 2004, never gave his affirmative consent and decided it was high time the Janus ruling was enforced in Pennsylvania. That’s why he hired the Fairness Center last summer to file a federal civil rights suit against both the AHEA and the Pennsylvania State Education Association, the largest public employee union in the state with roughly 180,000 members.
“By threatening to collect union dues or fees” from Perrotti without his consent, the teachers unions were “depriving” him “of his First Amendment rights to free speech and association,” the suit says. Although Perrotti clearly had the force of federal law on his side, Danielle Acker Susanj, an attorney who represented Perrotti, finds that unions are not always brought to heel without legal intervention.
“This is part of the larger trend we are seeing — threats to unrepresented teachers, who have plenty of other things to worry about, only for PSEA to back down as soon as lawyers get involved,” Susanj said in an email. “But teachers should be able to exercise their rights without the need to hire a lawyer in order to fend off threats from the union that represents them.”
What the public employee unions in Pennsylvania really want to avoid is a decisive court ruling that sets a firm precedent while overturning those parts of Pennsylvania labor law that do not square with the Janus ruling, David Osborne, CEO of Americans for Fair Treatment, added. Unions continuously “attack and retreat” by “imposing unconstitutional policies on public employees” but then abruptly “retreating whenever they are challenged in court,” he observed.
What’s the Solution?
The Fairness Center continues to advance cases where they call on the judiciary to overturn those parts of Pennsylvania labor law that are unconstitutional. But the problem here is with the sly union tactics Osborne highlights. The usual drill is for unions to cry uncle and enter settlements once it becomes clear they sit on the precipice of a ruling that would make Janus fully operational in Pennsylvania.
But there’s an alternative to court action in the form of legislative and political pressure – and here the timing might be ideal. On Nov. 15, the Pennsylvania House Labor and Industry Committee held a hearing on several labor reform measures. One of the bills up for consideration would end “maintenance of membership” while another would notify employees of their constitutional rights while striking down fair-share fee requirements.
Susanj, the Fairness Center attorney who represented Perrotti, told committee members during her testimony that her firm has identified at least 20 collective bargaining agreements that included fair share fee language signed after the Janus ruling. This means the union and the public employer included language they knew to be illegal, she explained.
“There are Pennsylvania public employees, including some of our clients, working today under contracts with facially unconstitutional provisions,” Susanj said. She also sees value in a legislative proposal to implement notification requirements so public employees are fully informed of their First Amendment rights before joining a union.
“Setting aside the problem of public sector union officials and public employers including illegal language in the CBAs, if employees do not know their rights, they cannot be expected to know which provisions happen to be unconstitutional,” she observed during the hearing.
‘Teachers Do Not Know They Have a Choice’
Cheri Gensel, a public school teacher from Monroe County, demonstrated how this can be done during her testimony. She described how the PSEA attempted to pressure her into changing her party affiliation from Republican to Democrat back in 2014. The union relented when she stood her ground, but Gensel still had to pay union dues that went to support the union’s political agenda. She was finally able to resign from her union in 2018 thanks to the Janus ruling.
She encouraged lawmakers to move forward with the bills that now sit before the House committee that enable teachers who do not agree with the politics of the teachers unions to exercise their constitutional rights.
“Many teachers do not know that they have a choice,” Cheri continued. “I meet teachers and citizens all the time that are surprised that I am not in the union. They always reply, ‘You are a teacher, you are required to be in the union.’ With this legislation, on their first day teachers will learn of their First Amendment right to not join a union or pay dues if that is what they choose—information that is not currently disclosed to them. They will also not be stuck in the union because of a collective bargaining agreement that contains limits on when a teacher can resign.”