Pennsylvania public-sector unions ignore workers’ rights, defy Supreme Court Janus decision that affirmed right not to pay union fees.
Jane Ladley was a Pennsylvania public school teacher her entire life. She wasn’t a member of the Pennsylvania State Education Association (PSEA), the state’s public school teachers union. But in 2013, the PSEA forced her to pay a “fair share fee,” a sum that non-union members must pay to a union in order to cover the costs of the union representing them in contract negotiations. In the 2018 case of Janus v. AFSCME, the U.S. Supreme Court invalidated public-sector unions’ collection of fair share fees from non-member employees on First Amendment grounds.
Yet the PSEA continued to force Ladley to pay fair share fees. After Ladley had initially claimed a religious exemption, under which she could direct the fee money to a charity instead of the union, the PSEA rejected her choice of charity and continued taking her money. Even after the Janus ruling, the PSEA continued to keep fair-share fees when it disagreed with the choice of charity designated by teachers like Ladley. And in clear violation of Janus, many Pennsylvania school districts continued inserting fair-share fee provisions in teacher contracts.
A new report published by the Commonwealth Foundation, “The Battle for Worker Freedom in the States: Grading State Public Sector Labor Laws,” tells Ladley’s troubling story as it tracks recent changes in state policies regulating government-employee labor relations. The upshot is that fights over the validity and strength of public sector unions – and the problems they pose for democratic control of government and efficiency in government – are very much ongoing in the states.
No doubt, for those committed to reducing the power of public-sector unions – in the name of governmental efficiency, popular sovereignty, and the contractual rights of individual workers – the Supreme Court’s 2018 ruling in Janus was a boon. But report authors Priya M. Brannick and Andrew Holman explain how, in the wake of Janus, plenty of progress remains to be had. Currently, “a patchwork of state court rulings, executive orders, new legislation, and legal pressure from public interest law firms” has been moving things in a deregulatory direction. But much work remains to be done.
Indeed, Ladley’s saga is a case in point of how the Janus ruling isn’t a final chapter, but rather a first step. Ladley and others filed suit about eight years ago to challenge their forced payments of fair share fees, and in May 2022, they finally won: Pennsylvania’s fair-share fee law was ruled unconstitutional.
In the wake of Janus, battles continue to play out in state legislatures, governors’ mansions, federal and state courts, and perhaps most importantly, the courts of public opinion. While some states have seen surprising surges in the strength of public-sector unions (Virginia recently enabled local governments to collectively bargain with workers), other states have significantly reduced the unions’ clout (Arkansas banned collective bargaining for most of its government workers).
How does Pennsylvania shape up in this context?
Not too well, according to the report’s authors. They give Pennsylvania a “D” grade, thanks to its maintaining of collective bargaining. That said, individual workers attempting to push back on union restrictions have seen some success in Pennsylvania by way of litigation. For example, the authors note that lawsuits filed by Pennsylvania public employees have forced unions like the Service Employees International Union (SEIU), Pennsylvania State Corrections Officers Association (PSCOA), United Food and Commercial Workers (UFCW), and the American Federation of State, County and Municipal Employees (AFSCME) to drop resignation restrictions from state contracts. These lawsuits have enabled public-sector workers in Pennsylvania to quit their unions whenever they wish.
On the legislative front, several pending bills in Pennsylvania would cut against public-sector unions. Specifically, Brannick and Holman highlight bills that would require proposed contracts to be posted before ratification; ban “release time” (i.e., prohibit government employees from being released “from regular job duties to perform labor union business—often while still receiving taxpayer-funded pay and benefits”); permit employees to represent themselves in contract negotiations, require regular recertification of unions; mandate that workers be notified of their right to join or not to join a union; and enhance the transparency of labor negotiations and contracts by requiring that proposed contracts be posted before ratification.
Though individual workers and public-interest law firms are notching successes in the courts, it remains unclear whether these legislative reforms have a chance at being passed in the Pennsylvania state legislature and then being signed into law. If the Pennsylvania legislature remains with the Republicans and the Governor’s mansion with the Democrats, one possible compromise would be pairing these sorts of reforms (largely favored by Republicans) with changes to the laws governing how police unions effectively shield members from accountability (reforms largely favored by Democrats).
Such a compromise would attempt to square the existence of public-sector unions with the basic American intuition that government and its employees are meant to serve the people, not themselves.
That intuition should be bipartisan and apply to all government workers, from teachers, to the police, to every bureaucrat in between.
It was President Franklin D. Roosevelt, after all, who wrote that “Government employees should realize that the process of collective bargaining, as usually understood, cannot be transplanted into the public service. [Collective bargaining] has its distinct and insurmountable limitations when applied to public personnel management.”
Roosevelt explained further: “The employer is the whole people, who speak by means of laws enacted by their representatives … Accordingly, administrative officials and employees alike are governed and guided, and in many instances restricted, by laws which establish policies, procedures, or rules in personnel matters.”
The question today is how exactly “the people” in states like Pennsylvania will “speak by means of laws enacted by their representatives” when it comes to public sector unions: Will compromises be struck in the name of democratic control of government and efficiency? Or will the status quo persist?
Thomas Koenig is a student at Harvard Law School from Oreland, PA. Originally published by RealClearPennsylvania. Republished with permission.
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