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Public Hearing on Public Sector Union Reform

Testimony of David R. Osborne, CEO of Americans for Fair Treatment
Labor & Industry Committee, Pennsylvania House of Representatives

Good afternoon, and thank you to Chairman Cox, Democratic Chair Mullery, and the committee for the invitation. My name is David Osborne; I am CEO of Americans for Fair Treatment, a nonprofit educating public employees as to their rights in a unionized workplace and connecting them with every available resource to exercise those rights.

The bills we are discussing today represent commonsense solutions to the most practical problems facing public employees who want to exercise their workplace rights. I think we can all agree that public sector employees deserve to understand their rights, that no one should be forced to be a union member just to get a government job, and that everyone should have a choice when it comes to which union represents them.

Unfortunately, right now, every major public-sector union is investing in just the opposite. Since the United States Supreme Court’s decision in Janus v. AFSCME, Council 31, 585 U.S. ___; 138 S. Ct. 2448 (2018), which recognized the First Amendment right of public employees not to pay a union, unions have continued to find new ways of obscuring information from public employees, manipulating public employees into becoming union members, and locking public employees into membership using complicated membership forms and legal jargon.

I asked the committee staff to accept and disseminate membership cards (attached) from the most notable public-sector unions in Pennsylvania. Public employees most often get these in one of two contexts: either when they are filling out paperwork for their employer, making them appear necessary for employment; or in an unsupervised orientation session with the union, where union officials can and have said whatever is necessary to get people to sign. I will focus on four distinct issues that are on display in these membership cards. Each of these issues present problems under the Supreme Court’s ruling in Janus, but litigation has not yet resolved them. You can tackle them immediately as legislators:

First, all major unions are making employees pay dues regardless of membership status, an obvious attempt to circumvent Janus. See Exhibits. A, B, C, D. Under these provisions, even if a public employee resigns their union membership, they’re being made to pay full dues to the union. For example, the American Federation of State, County & Municipal Employees (AFSCME) Council 13—which represents over 65,000 state and local public employees in Pennsylvania—requires that members sign a membership form with the following language:

Effective immediately, I hereby voluntarily authorize and direct my Employer to deduct from my pay each pay period, regardless of whether I am or remain a member of the Union, the amount of dues certified by the Union, and as they may be adjusted periodically by the Union.

Exhibit A.

Second, public employees are being led to believe that membership is a condition of employment. According to documents from a lawsuit filed by a state liquor store clerk, the United Food & Commercial Workers (“UFCW”) Local 1776KS tells new employees in orientation sessions that they must join the union in order to keep their job. See Exhibit E. The union initially defended itself in court by arguing that it properly apprised public employees of their rights. But the membership form itself shows that any such language is only printed on the back of the form in light grey, difficult-to-read type that an employee may never see. See Exhibit B. UFCW Local 1776KS—which represents 3,000 Pennsylvania Liquor Control Board employees and 30,000 other private- and public-sector employees—eventually settled the case.

Third, unions are loading up membership cards with confusing, small print language. For example, the Pennsylvania State Education Association (PSEA)—the state’s largest teachers union—takes it to an extreme. See Ex. C. As best I can tell, the font the PSEA is using is 5.5. You may also notice that the membership agreement is placed very closely to an authorization meant for political action committee fundraising. This sort of membership card is very difficult for employees—again, under the watchful eye of a union representative on the first day of work—to read and understand before signing. It leads to many employees inadvertently signing up to fund political projects with which they disagree.

Finally, unions are collecting personal bank account information from public employees. For instance, the Service Employees International Union (“SEIU”) Local 668 requires members to sign the following language:

To facilitate payment of the dues or other contributions from my bank account, I authorize my employer to provide to SEIU Local 668’s designated secure payment processor the information for the bank account (bank account number and routing number) on file with my employer (“Account”) that I have designated to receive the proceeds of my paycheck via direct deposit.

Now, this discussion may remind you of some issues you may have handled in the consumer protection space, and I see why. In both contexts, you have a multimillion-dollar organization seeking relatively small amounts of money from people who do not have a lawyer on hand and who are put under extraordinary financial or social pressure. Of course, many of our consumer protection statutes exempt or do not apply to unions.

Yet I believe the problems facing public employee are even greater than those facing consumers, and that is because we have given public-sector unions extraordinary power to act in a special fiduciary capacity for our public servants. State and local governments also rely on unions to act as an exclusive representative for their employees, but only on the assumption that unions are treating public employees fairly.

Instead, public-sector unions spend inordinate amounts of time and money on amassing political power and capital and very little on representational activities. The PSEA’s most recent disclosure, for example, shows that it spent $3.9 million on political activities and lobbying in one year, while just 21% of its spending went toward “representational activities,” such as collective bargaining negotiations, handling grievances, and arbitration proceedings. See Exhibit F. The SEIU spends an inordinate sum of money organizing new employees, while just 12% of its spending went toward representational activities for existing members in that time period. See Exhibit G. The American Federation of Teachers—the national affiliate for our largest teachers’ unions, the Philadelphia and Pittsburgh Federation of Teachers—raised its dues by 2% so it could spend nearly $46 million of teachers’ money on political, legislative, and advocacy work. See Exhibit H. And AFSCME Council 13 spent roughly half of members’ dues just to keep the union running. See Exhibit I.

There is a real need for the General Assembly to get involved, particularly given that the courts have been slow to act after Janus. I am looking forward to working with you to find solutions that will give public employees the power to make informed decisions regarding their union affiliation.

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David R. Osborne

David R. Osborne is Special Counsel of Americans for Fair Treatment, a community of current and former public-sector workers offering resources and support to exercise their First Amendment rights. Prior to joining Americans for Fair Treatment, David was President & General Counsel of the Fairness Center, a nonprofit, public interest law firm providing free legal representation to those hurt by public-sector union officials.