In January 2017, several Pennsylvania teachers filed a lawsuit challenging the PSEA’s practice of charging fair share fees to non-member teachers. The plaintiffs in Hartnett v. PSEA (which included longtime Free to Teach members John Cress and Rob Brough) argued that despite being legal in state law and labor agreements, fair share fees violated their Constitutional right to freedom of association.
The case slowly wound its way through the Pennsylvania legal system. Then, a year and a half later, the U.S. Supreme Court made history. In its June 2018 ruling, Janus v. AFSCME, the court basically agreed with the Pennsylvania teachers, and banned fair share fees for government workers across the nation.
Ironically, the historical change effectively complicated proceedings in Hartnett v. PSEA. In May 2019, the U.S. District Court of the Middle District of Pennsylvania dismissed the case. Because the PSEA had agreed to both comply with Janus and were already doing so, the court argued, there was no longer any need for the case.
The plaintiffs quickly decided to appeal to the U.S. Third Circuit Court of Appeals, and filed the official appeal in late August 2019. As the complaint notes, the reason for pursuing the case is simple: unions like the PSEA aren’t really complying with Janus.
For example, in plaintiff Elizabeth Galaska’s Twin Valley School District, the provision requiring fair share fees of non-members remains in the collective bargaining agreement. The appeal further notes that even after Janus, school districts have been including fair share fee language in new contracts. (We reported on that astonishing trend back in May, listing school districts that were still bowing to PSEA demands for fair share fee language).
In light of the PSEA’s defiance, the plaintiffs want what they originally requested: a ruling declaring the “fair share fee” portions of Pennsylvania law unconstitutional, as well as the corresponding sections in teachers’ contracts that enact the law.
More than a year after Janus, it’s becoming clear that Pennsylvania and the 22 other states that had forced fair share fees have done almost nothing to bring their outdated state laws into compliance with the 2018 ruling. In fact, government unions in some states have even been pushing for fees by other names to replace the loss of fair share fee revenue.
The most blatant is in Oregon, where one of the main police unions, ORCOPS, baldly said a new 2019 law that mandates “administrative” fees would “protect law enforcement from incurring excessive non-member costs.” At least in Alaska there some good news, where the state attorney general advised the governor that state employees should be able to “opt in” annually for payroll deduction of both union dues and fees, in order to ensure none are unwillingly forfeiting their First Amendment rights.
So what’s the PSEA’s game in pushing for new contracts with fair share fees? Well, we can get some clues from the just-inked 2019-2022 Bermudian Springs contract. On p. 10, the fair share fee provision notes that the Janus ruling means teachers cannot be required to pay fees. But “should the Janus decision be overturned,” the contract will require deduction of the mandatory fees again.
In other words, the big state and national government unions are hedging their bets. They hope the Janus decision will eventually go away and they can return to forcing workers to pay for unwanted representation. Pennsylvania state law needs to change to comply with Janus—that’s the only true protection against unions’ workarounds. Cases like Hartnett v. PSEA are more relevant than ever in ensuring the big unions stay honest.