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Cases to Watch: 'Right to Work' Lawsuits

February 14, 2017

By Alaine S. Williams 

For the past few years, there has been a concerted attack mounted by various conservative groups against labor organizations representing public sector workers. The attacks include promoting state legislation abolishing collective bargaining by public workers outright or seriously eroding the rights of public workers to negotiate over wages, hours and terms and conditions of employment. Wisconsin Act 10 is a classic example. Public workers in other states have had to fend off legislation which would prohibit the collection of union dues by way of check off in an effort to neutralize the workers’ unions. Pennsylvania SB 166 is legislation that is under consideration which prohibits public employers from deducting political contributions, interpreted very broadly, from workers’ paychecks.

Perhaps the most concerted effort now being advanced nationwide is strategic litigation to eliminate the obligation of non-members to pay fair share fees.  In 1977, the United States Supreme Court in Abood v. Detroit Board of Education, upheld the collection of fair share fees from public sector non-members finding the authorizing Michigan law to be constitutional. Following Abood, in Chicago Teachers Union v. Hudson, the Supreme Court reiterated that the collection of fair share fees from non-members was constitutional so long as certain requirements were met. Since that time, any number of states, including Pennsylvania, New Jersey, Delaware and Illinois, have enacted legislation authorizing the deduction of fair share fees.

In 2013, a lawsuit was filed in California against the local teacher’s union asserting that the collection of fair share fees from nonmembers was unconstitutional. In Friedrichs v. California Teachers Association, the legal strategy was to advance the case through the trial and appellate courts with the goal of eventually reaching the Supreme Court where the plaintiffs hoped to be able to convince a majority of Justices to reverse course and overturn the decision in Abood. The District Court and the United States Court of Appeals for the Ninth Circuit both ruled against the Plaintiffs, but on the last day of the 2015 court session, the Supreme Court granted certiorari in the Friedrichs case, thereby setting up the possibility for a decision overruling Abood

Oral argument occurred in January 2016 and the transcript of the proceedings revealed that a number of Supreme Court Justices were leaning towards overturning Abood. However, in April 2016 an equally divided Supreme Court summarily affirmed the decision of the Ninth Circuit Court of Appeals based on the reasoning of Abood. Of course, the intervening event between oral argument and the April decision was the death of Justice Scalia.

Emboldened by the potential for overturning Abood, anti-union groups are now advancing a number of cases with the hopes of reaching the Supreme Court again. In January, 2017, those hopes were dashed when the Court refused to hear Serna v.TWU, AFL-CIO, a case arising under the Railway Labor Act which raised the same issues.  

Currently there are a number of cases pending in the United States Court of Appeals which might serve as the basis for reviewing Abood. Most commentators think a case pending in the United States Court of Appeals for the Seventh Circuit, Janus v. AFSCME, is challenging the Illinois statute authorizing collection of fair share fees is the case most likely to first reach the Supreme Court. Plaintiffs, both of whom are state employees, assert that the law is unconstitutional on its face and as applied. The District Court dismissed the action in September 2016 finding Abood to be valid and binding precedent. Oral argument in the Seventh Circuit has not yet been scheduled.

Presumably in an attempt to make certain that there are other cases in the pipeline to challenge Abood, an antiunion group filed three new cases in January: one in California; one in Pennsylvania; and one in New York. Hartnett v. PSEA was filed in the Middle District of Pennsylvania. The plaintiffs are three teachers and the defendants are PSEA and its affiliated local unions and the Homer-Center School District, Ellwood City Area School District and Twin Valley School District. As in previous litigation, the suit seeks a declaration that the Pennsylvania statutes authorizing the deduction of fair share fees are unconstitutional on their face and as applied. The California Case, Li v. SEIU, involves an action against County employees and challenges the California Law and procedure for collection of fair share fees. The New York case has been reported to be against the International Brotherhood of Electrical Workers (IBEW) but had not been filed as of this writing. There are a number of similar cases pending throughout the United States and in all of these actions, the plaintiffs are seeking an ultimate determination that Abood is no longer good law.

Additionally, there are a number of other law suits pending against unions which represent public sector workers seeking to chip away at a union’s ability to represent all bargaining unit employees. Ramos v. Allentown Education Association and Americans for Fair Treatment v. Philadelphia Federation Teachers are representative of this group of cases filed in Pennsylvania that are raising questions about collectively bargained contracts which allow employees leave time to engage in labor relations matter. There are also pending cases in Pennsylvania in which the plaintiffs argue that nonmembers who assert religious objections to payment of fair share fees should have unfettered rights to determine which charitable organization will receive fair share fees. These cases include Misja v. PSEA, Hadley v. PSEA and Williams v. PSEA.

There is little doubt that workers and the labor unions that represent workers are under attack in the United States. These attacks continue notwithstanding economic data which graphically demonstrates that workers organized by labor unions earn more money and have enhanced healthcare benefits and pensions. It behooves everyone to monitor for new developments and to let your elected representatives know of your concerns.

If you have any questions about these so called 'Right to Work' lawsuits, call the attorneys at Willig, Williams & Davidson at (800) 631-1233.

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