It’s been almost a year since Janus v. AFSCMEoverturned 40 years of government-sector labor precedent. Now, employees who decide not to join their workplace union are no longer forced to pay fees for unwanted representation just to keep their jobs.
In fact, since the June 2018 court ruling, a flurry of worker-led lawsuits has erupted. The plaintiffs are demanding that unions repay fair share fees charged before the Janus decision. Most recently in Illinois, nine plaintiffs have sued AFSCME in a 2,700-strong class-action lawsuit, asking for a year’s worth of fair share fees to be refunded.
Several other cases spanning Hawaii, California, New Mexico, Minnesota, Illinois, Ohio, Pennsylvania, New Jersey, and Connecticut involve teachers, state workers, university professors, firefighters, police officers, and others as plaintiffs. These employees resigned their union membership, but weren’t allowed to leave and stop paying dues because they missed union “exit” windows. (See the case pages for The Fairness Center, Liberty Justice Center, and the National Right to Work Legal Defense Foundationfor full details).
In short, workers fighting to protect their freedom of association isn’t just a trend—it’s a bona fiderevolution.
So in this context, with fair share fees clearly unconstitutional and other types of coercive unionization under challenge, why on earth would Pennsylvania school districts include agency fee provisions in their new contracts?
It’s true: we have learned that about 12 school districts have signed new teacher contracts with fair share fees since the Janus ruling on June 27, 2018. New Hope Solebury in Bucks County even executed its contract just one day after the ruling, even while school boards were scrambling to comply with it. Another, the Southern Fulton School District, included a fair share fee provision in its contract signed in December 2018, but had removed it by April 2019. The wide-ranging districts that agreed to fair share fees include:
- New Kensington-Arnold, Westmoreland County(contract with education support staff)
- Tuscarora School District, Franklin County
- Penn Manor, Lancaster County
- East Stroudsburg, Monroe & Pike Counties
- Upper Darby, Delaware County
- Oxford Area, Chester County
- Hanover Area, Luzerne County
- Steel Valley, Allegheny County
- Penn Hills, Allegheny County
- Jefferson-Morgan, Greene County
This new wave of fair share fees seems to make little sense, but there’s some method to the PSEA’s constitution-flouting madness.
First, it appears the union is hedging its bets. It doesn’t appear that fair share fees are actually being docked from teachers’ pay under the new contracts. Rather, it looks like the union wants to keep the provision in contracts in case there are future changes or an outright rescinding of Janus.In addition, should the PSEA be challenged, standard severability clauses are included in labor contracts, which allow for a provision deemed illegal to simply be excluded while the rest of the contract holds.
A second, and more nefarious reason, might be to hoodwink unaware teachers. Picture this: labor law is a boring and tedious subject that few closely follow. Likely many, if not most, teachers are unaware of their recently won Janus rights. In such an environment, union officials could easily mislead teachers who resign union membership by pointing to the current contract and saying, “Well, do you really want to resign? You’ll have to pay these fair share fees anyway if you do.”
It’s just another way PSEA could deter teachers from leaving the union.
And it’s not just in Pennsylvania, either. In Massachusetts, a bill has been introduced that would amend state lawgoverning government employees, making fair share fees valid even after a collective bargaining agreement expires. If the bill is eventually enacted, it would be a clear violation of the Janus ruling.
Overall, it looks like the major government unions are preparing for a day when they can yet again charge non-members fair share fees. In the meantime, if you’re a teacher, learn your rights and tell us immediately if your workplace is still charging you these unconstitutional fees.