Backed by high-powered law firm, Pa. state worker files class action suit to demand union dues refund

The conservative public interest law firm behind a landmark 2018 U.S. Supreme Court ruling against public sector unions is trying to follow up on its success with a new Pennsylvania lawsuit.

The Liberty Justice Center, part of the free-market, Koch brothers-backed State Policy Network, has filed a class action lawsuit against Service Employees International Union Local 668, a statewide union that represents 19,000 human services workers.

The federal lawsuit, filed in the Middle District of Pennsylvania, demands that the SEIU local give back roughly 10 months of compulsory fees that non-members paid to the union before the U.S. Supreme Court made its ruling.

It was filed on behalf of Catherine Kioussis, an income maintenance supervisor for the Commonwealth of Pennsylvania who paid $450 a year in what are known as “agency fees” to the union.

The Center says the lawsuit, if successful, could refund $1 million in fees back to 2,000 public employees, who made the payments between August 2017 until July 2018 — when the ruling came down. 

“We have alleged in the complaint SEIU should have known taking these [fees] was illegal because there was a line of cases on these issues,” Brian Kelsey*, lead attorney on the case for the Liberty Justice Center, told the Capital-Star.

The Virginia-based National Right to Work Legal Defense Foundation, an anti-union law center, is also listed as a partner in the Kioussis case.

In a landmark ruling last year, known as Janus v. AFSCME, the U.S. Supreme Court found unconstitutional all state laws which enabled public sector unions to charge employees — members or not — for their services. The Illinois-based Liberty Justice Center also represented the plaintiff in that case. 

The Pennsylvania suit seeks back agency fees, or monthly payments, that all employees in a workplace were required to pay to the shop’s union, even if the individual was not a union member. These fees are typically less than full dues. 

According to the lawsuit, full members of SEIU Local 668 paid 1.35 percent of their gross income as dues. Non-members in union shops paid .85 percent of their gross income.

Supporters called these payments fair share fees that accounted for the bargaining costs that help all workplace employees; detractors said the fees, specifically in government jobs, violated freedom of conscience. 

The U.S. Supreme Court, including newly appointed Justice Neil Gorsuch, backed the latter interpretation when, in 2018, it overturned the decades-old precedent and found agency fees for public sector workers unconstitutional.

In a statement, SEIU 668 President Steve Catanese did not address the suit specifically, but questioned the two law centers’ funding while claiming they have a history of filing “frivolous litigation against labor unions and undermine the ability of workers to have a voice at the workplace.”

“Despite these organizations’ best efforts, our focus remains on continuing to fight for the workers that are a part of our union and for a better Pennsylvania,” Catanese said in the statement. “We’re confident our union will prevail in court.”

Kelsey of the Liberty Justice Center said the firm has filed two similar lawsuits, seeking now-unconstitutional agency fees back from public sector unions in New York and Illinois.

Michael Duff, a former teamster and now University of Wyoming labor law professor, said he thinks that, legally, the lawsuit is “a good suit.”

While laws do not typically apply retroactively, the U.S. Supreme Court has previously found that individuals can seek redress if an unconstitutional policy impacts them.

However, the court also found that states have wide discretion to address an unconstitutional law. The suit, while citing a U.S. constitutional violation, challenges SEIU’s actions under a state law, not federal law. 

“I don’t think retroactivity will bar the suit. But I think the state will have an awful lot to say about how the Janus violation is remedied,” Duff told the Capital-Star.

Correction: This story was edited to correct the spelling of Brian Kelsey’s name.