By David Osborne, CEO, Americans for Fair Treatment
Full disclosure; I used to work at the Fairness Center and provided legal advice and representation to these teachers while there.
Three years ago, public school teachers Greg Hartnett, Elizabeth Galaska, Rob Brough, and John Cress sued their teachers’ union, the PSEA, for including in their contracts “fair share fee” clauses that required nonmember teachers to pay for union representation. Their suit was originally filed before the Supreme Court’s Janus v. AFSCME decision created a First Amendment right for public-sector workers not to pay any dues or fees as a condition of employment.
But even after Janus was decided, the PSEA continued to include fair share fee clauses in collective bargaining agreements throughout the state. The union seemed intent on breathing life into state laws that were inconsistent with Janus.
Why? Unfortunately, including these unconstitutional requirements in teachers’ contracts helps the union recruit members. It reinforces the false premise that a teacher will have to pay “fees” even if they refuse to join the union or wish to resign their membership.
Greg Hartnett and his fellow teachers continued to fight the PSEA’s practices.
The wheels of justice turn slowly. Their case, Hartnett v. PSEA, has just received its final decision by the U.S. Third Circuit Court of Appeals.
The Third Circuit, in a decision authored by Judge Stefanos Bibas, made crystal clear that the PSEA could not enforce state law allowing for fair share fees under Janus. But it also stopped just short of actually striking down the laws because the PSEA ultimately conceded that it would violate teachers’ civil rights to force nonmembers to pay a fee in Pennsylvania:
Just because a statute may be unconstitutional does not mean that a federal court may declare it so. If there is no real dispute over a statute’s scope or enforceability, we must dismiss any suit attacking it, no matter how obvious the result may seem.
. . . .
. . . . The parties no longer dispute whether the statute is enforceable, and there is no reason to think that anyone will try to collect agency fees from these teachers again. If a court is to formally declare the statute unconstitutional, that will have to await a future case in which the parties earnestly dispute its validity.
According to the Third Circuit, Greg Hartnett and his fellow teachers now “have nothing to fear.”
But that’s not true for every teacher. Collective bargaining agreements throughout Pennsylvania contain misleading “fair share fee” requirements that deceive teachers into joining the union. It’s now up to the General Assembly to protect teachers like Greg Hartnett.
State Rep. Kate Klunk’s legislation, the Employee Rights Notification Act, that came close to passage last year would be an ideal solution to end these unconstitutional fees in Pennsylvania. Yet even a bill simply mandating the repeal of fair share fees would be a significant step forward for teachers and other public workers.
Photo courtesy of the Tribune Democrat.