Summary: The school choice movement in Pennsylvania has remained at a disadvantage, and education reform has stalled because government employees who support legislation to expand scholarship opportunities or boost charter schools have had part of their wages taken to finance political activity that undercuts their own policy preferences. The problem stems from deeply ingrained features of Pennsylvania labor laws, but legislative and legal pressure to reform these outdated statutes has been building in recent months thanks to the U.S. Supreme Court’s decision in Janus v. AFSCME. What happens in the Pennsylvania courts and state legislature will likely ripple across state lines.
Workers Seeking Retroactive Refunds
Some proponents of the right-to-work movement now argue in court that laws requiring government workers to either join a union or pay “fair-share” fees as nonmembers were illegal from the start.
This point has been made by plaintiffs and attorneys in “clawback cases” now working their way through federal courts that seek retroactive refunds of union fees taken from employee paychecks prior to the 2018 Supreme Court ruling. The justices did not create new rights, but instead moved to restore constitutional freedoms that never should have been suspended in the first place, argue attorneys attached to the National Right to Work Legal Defense Foundation and the Liberty Justice Center based in Illinois. These are the same legal teams that partnered to represent Mark Janus, a child support specialist at the Illinois Department of Healthcare and Family Service, who was the lead plaintiff in the Supreme Court case against AFSCME.
In a new development, Brian Kelsey, the lead attorney in the clawback cases for the Liberty Justice Center, said in an interview that Janus will petition the Supreme Court to rehear his current case against AFSCME in which he is asking union officials to refund thousands of dollars in union fees taken from his paycheck before the Supreme Court ruled in his favor back in June 2018. A three-judge panel of the Seventh Circuit Court of Appeals ruled last year that AFSCME could retain the fees taken prior to the Supreme Court’s ruling.
Meanwhile, government workers in Maryland, New York, and Pennsylvania continue to push for retroactive refunds from unions in those states.
“These fees were illegally taken from workers and that’s why we are asking the courts to give them back,” Kelsey said. “The Supreme Court has already ruled in favor of workers and with us saying that these fees were unconstitutionally taken and that what the unions did was wrong and unconstitutional and for this reason they must give the money back.”
While right-to-work advocates work through the courts to build and expand on their victory at the Supreme Court, union leaders and their allies in government are pushing back.
The Commonwealth Foundation, a free-market think tank based in Harrisburg, Pennsylvania, published an extensive report in 2019 marking the first anniversary of the Supreme Court decision that found more than 100 Janus-related bills have been moving at the state level:
A majority of these 2019 bills contained union-backed policies. They represented an effort to codify union privileges that may have simply been negotiated at the contract level before; shore up the scope of collective bargaining; and unionize new groups of government employees.
Labor policy analysts with the Commonwealth Foundation identified legislation in Washington State, Oregon, and California as particularly problematic from the perspective of worker freedom. In Pennsylvania, where Republicans control the General Assembly, union leaders have tried but failed so far to pass “card check” legislation that would deprive individual workers of the ability to vote by secret ballot in a unionization election.
In sum, the large government unions are attempting to benefit from a policy weakness we identified three years ago in state laws: the lack of clear statutory language prohibiting or limiting union privileges such as release time, the payroll deduction of union dues and other political money, and the scope of collective bargaining. Such provisions adversely impact state and local budgets, creating the potential for cumulative deficits and higher future taxes.
State representatives such as Turzai have blocked union favors that have taken root in other states without right-to-work protections. But on the flip side, they have not yet been able to repeal anachronistic measures such as maintenance-of-membership and fair-share fees. In the end, breaking through union resistance in Pennsylvania may take a combination of legal and legislative action.
Public-school teachers who object to paying fair-share fees are taking their unions to court where the legal costs associated with the union’s defense of labor laws that do not pass constitutional muster are becoming more apparent.
The Third Circuit Court of Appeals is expected to issue a ruling in the next few months in the case of Hartnett v. PSEA. Legal briefs have been submitted by opposing sides in lieu of oral arguments. The teachers argue that they should not be compelled to pay fees to the Pennsylvania State Education Association (PSEA), since they have chosen not to join.
Gregory Hartnett of the Homer-Center School District in Homer City is the lead plaintiff in a suit filed in 2017, which closely models the arguments made by Rebecca Friedrichs, a former elementary schoolteacher in California, whose case made it to the Supreme Court. The Fairness Center has partnered with the National Right to Work Foundation to represent Hartnett and three other public-school teachers from across Pennsylvania who are challenging compulsory fair-share fees as an unconstitutional assault on constitutional freedoms.
Hartnett’s case could be the coup de grace for union mandates at the state level that free speech and worker rights activists have sought since the Janus was decided.
But wait? Hasn’t the Supreme Court already overturned mandatory unions fees for government workers? Why is it even necessary for Hartnett and other teachers to go to court?
The answers here go back to what Friedrichs said during an impromptu press conference delivered on the public space outside of the Supreme Court just minutes after the Janus ruling was made public in June 2018. The petite teacher, turned free speech activist, made her voice heard just a few feet from the steps leading into the court building. Supporters, antagonists, and members of the press gathered around Friedrichs to hear her make what might be the most insightful, enduring observation about the court ruling.
“The Supreme Court victory here restoring free speech for schoolteachers and other public employees is a huge victory, but it is just the beginning, not the end, of a very long fight,” she said that day. “The job now is to make sure the decision is enforced at the local and state level because the unions will work every which way to undermine this ruling.”
She would know.
Friedrichs taught elementary school students in the Savanna School District in Anaheim, California for 28 years. She was the lead plaintiff in a suit that raised the same First Amendment arguments against mandatory union dues and fees as the Janus case. In fact, her case made it all the way to the Supreme Court. Friedrichs joined with nine other teachers and the Christian Educators Association International to sue the California Teachers Association, several local unions, and the National Education Association. But because Justice Antonin Scalia died just a few weeks after oral arguments were held in her case on January 11, 2016, the high court deadlocked 4-4 leaving a lower court ruling in place upholding California’s “agency shop law.”
What this meant is that rank and file schoolteachers such as Friedrichs and other public employees, who differ with the political agenda of union leaders, still have to pay fair-share fees to those same union leaders who negotiated collective bargaining agreements with their employer. From her perspective, this seemed like a straight-up violation of her constitutional rights including freedom of speech and freedom of religion.
Since California has initiative and referendum processes, teachers and other public-school employees could easily see that their political views were often diametrically opposed to those of California Teachers Association, an affiliate of the National Education Association. Both were named as defendants in the Friedrichs case along with several local California unions.
“If the union leaders were on one side of a ballot initiative, it was a sure bet that I was on the other,” Friedrichs said. “The same was true of other schoolteachers who identified themselves as Christian. We certainly weren’t the only teachers opposed the union’s political stand. But I think only David is willing to fight Goliath, which is why I joined with other Christian teachers.”
The National Education Association (NEA) and its many state affiliates are political goliaths in terms of money and organization. Influence Watch reports that from 1990 through February 2019 the NEA’s political action committees contributed almost $143.5 million to federal candidates and committees with 97 percent of the contributions going to support Democrats and liberals. The union has about 3 million members.
The question Friedrichs frequently asked in media interviews during her case was “Why should I have to spend part of my workday paying for political activism I do not support?”
That’s the same question Hartnett is asking on the other side of the country. In a press statement, he said:
I witnessed how out of touch many union leaders have become during teacher contract negotiations in Indiana County’s Homer-Center School District, where I teach. To avoid potential teacher layoffs or a community-harming tax increase, I asked the union to drop its demand for salary increases. The union ignored me, adhering to bargaining tactics established decades ago that put union leaders’ priorities first, and union members’ wishes and the community’s well-being last.
As negotiations dragged on, I learned that union leaders who once secured individual workers’ rights now violate them to maintain one-size-fits-all contracts that secure their power. I learned that even if union leaders treat my opinion as worthless, the law still entitles them to a portion of my salary every year. Most of all, I learned that to keep teaching, I had to give up my constitutional rights of free speech and free association.
PSEA’s actions indicate how prescient Friedrich’s warnings were when Janus was decided. Nathan McGrath, an attorney with the Fairness Center representing Harnett and the other plaintiffs, said the union has a long history of defying Supreme Court rulings with the Janus decision being just the latest in a series.
“PSEA specifically has a history of thumbing its nose at Supreme Court precedent, and it’s sometimes required litigation to make them comply with the Court’s rulings,” he said. “Because of that, the fact that the PSEA and its affiliates are still negotiating fair share fees provisions into CBAs [collective bargaining agreements] after Janus is not actually very shocking to us. This seems to be par for the course for how they operate, and it’s required federal court cases in the past, and in some cases a very lengthy period of time, to get them to comply with what the Supreme Court has said.”
“At the end of the day, we would like the 3rd Circuit to bring Janus to Pennsylvania and to say to Pennsylvania that you have a law on the books that runs counter to what the Supreme Court said and to declare the Pennsylvania fair share fee statute unconstitutional.
For union members and nonmembers who differ with the political positions of the PSEA and other unions, Keith Williams, director of Americans for Fair Treatment and a former public-school teacher, sees a way out. He founded the nonprofit group based in Harrisburg to inform teachers of their rights and options.
“A lot of teachers like their local unions because they are less political, more accountable and more responsive to the concerns of their members,” he said in an interview. “But they are less enthusiastic about what’s happening with unions at the state and national level.”
That’s one reason why 11 local teachers unions seceded from the National Education Association in the past five years, he explained in an opinion piece for the Wall Street Journal. “There’s an arrangement called ‘unified dues’ where a teacher who joins an NEA-affiliated local is then automatically enrolled in the state and national unions,” Williams said. “While an individual teacher can decline to join, the locals have a harder time leaving now. That’s because the NEA has changed its bylaws putting up new roadblocks to prevent locals from going their own way. Clearly, this is an ongoing battle. We are all about starting a conversation and changing the paradigm. Teachers should be free to join a union if they like, but they should be just as free not to. Allowing local unions to go in their own direction I think would appeal to a lot of teachers.”
Williams has started a new initiative called “Free to Teach” designed to “help teachers exercise their First Amendment rights to freedom of association without threats or coercion from unions.”
He points to a growing body of evidence in recent election returns that suggests public-school teachers in particular, and public-sector workers in general, object to having their union dues and fees funneled into political activism that is at odds with their own convictions. “Many rank-and-file union members recognize that the political positions of their union leadership are often out of step with their own,” he said. “But I think we still need to raise awareness about how union dues are spent and allocated.”
Only a small percentage of the dues paid to the teachers unions are reserved for the local unions. Williams estimates that in most Pennsylvania school districts about 90 percent of the dues are sent to the state and national affiliates.
In the next installment of Labor Watch on Pennsylvania, follow the money trail to union political activism.