Public employee unions, which spend dues and fees on political activity that frequently conflict with the views of their rank-and-file members, are finally showing signs of yielding to legislative and legal pressure thanks to 10 Pennsylvania lawsuits.
There is, for example, the case of Francisco Molina, a former social services aide for Lehigh County, who ran into difficulty when he attempted to resign from his union. The Services Employees International Union Local (SEIU) 668 initially rejected Molina’s resignation letter and informed him that he had to remain a member under Pennsylvania’s “maintenance of membership” law, which applied to his contract.
But how does this state law square with the U.S. Supreme Court ruling in Janus v. AFSCME? The answer is that it doesn’t.
In Janus, the high court invalidated mandatory union non-member fees in the public sector as unconstitutional violations of free speech rights. Molina submitted his resignation just a few weeks after the ruling came down in June 2018. Under the “maintenance of membership” provision of Pennsylvania’s Public Employees Relations Act, public employees may resign union membership only during a 15-day window prior to when their contracts expire. The Act does not require unions to inform workers of the resignation window and the state’s public payroll systems automatically deduct union dues from paychecks until such time as workers can extract themselves from membership.
Pennsylvania is one of six states with a maintenance of membership provision in state law. If a member doesn’t know about the window, and sends the letter at any other time, even a day late, they must wait years to resign again.
Molina sued SEIU 668 in January, alleging that the union’s refusal to allow him to resign violated his constitutional rights.
Molina is among nearly 20 Pennsylvania public employees who have filed suit challenging resignation restrictions SEIU ultimately refunded the dues taken from Molina after his resignation, yet he remains among the public employees continuing to challenge the maintenance of membership statute. Luckily, there are palpable signs of change.
Map: Pa. Workers Sue for Right to Resign
Court filings and updated contracts suggest that union leaders now recognize resignation restrictions on public workers are legally untenable.
SEIU 668, United Food and Commercial Workers (UFCW) 1776, and Pennsylvania State Correctional Officers Association (PSCOA) have removed maintenance of membership requirements from their new contracts. All told, these unions represent an estimated 22,500 Pennsylvania public employees, according to government figures.
David Osborne, president and general counsel for the Fairness Center, said in a press release:
“Maintenance of membership restrictions clearly violate our clients’ constitutional rights, and union officials should have dropped those restrictions a long time ago…It’s a big step in the right direction. Our clients had to sue to enforce their rights and the rights of those who are similarly situated, and only then did their union officials start to doubt their constitutional authority to keep members from resigning.”
The Fairness Center, a nonprofit, public interest law firm based in Harrisburg, has filed seven lawsuits on behalf of Pennsylvania public employees since the Supreme Court ruled to strike down mandatory union dues and membership. These suits include two class action suits seeking to change state law for good.
According to Osborne:
“Union officials are making the obvious play in these cases by promising to end ‘maintenance of membership’ restrictions, but it’s not entirely altruistic. These restrictions kept our clients from resigning from the union, a patent violation of the First Amendment. Additionally, state law still authorizes maintenance of membership restrictions, meaning union officials may return to them in future contracts…Our clients are pursuing a court ruling that, among other protections, strikes down the ‘maintenance of membership’ statute as unconstitutional.”
Meanwhile, the American Federation of State, County and Municipal Employees Council 13 has moved to eliminate maintenance of membership from its 2019 contract, which impacts about 29,000 state employees.
Ideally, workers shouldn’t have to threaten litigation to gain basic free speech and freedom of association rights. The Supreme Court has already spoken, and it now falls to state lawmakers to ensure that all public sector workers can resign their union membership anytime they please.
Rep. Greg Rothman has introduced House Bill 506, which would codify the Janus ruling into law by allowing government employees to resign from a union at any time. Rep. Kate Klunk has introduced House Bill 785, which would require public sector employers to notify workers of their constitutional rights. The fact that the SEIU, AFSCME and the UFCW have decided to eliminate maintenance of membership requirements should provide these bills with further impetus.
It should be evident now that the impact of 2018 Janus ruling is only beginning. State lawmakers have a long way to go to protect the newly affirmed rights of public workers.
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