Public sector unions face legal threats, but they’re on a ‘winning streak’

(Patrick Feller/Flickr)

Since a landmark reversal of union law two years ago in the U.S. Supreme Court, conservative groups have filed more than a dozen lawsuits against Pennsylvania public sector unions. But the legal outlook for the challenges appears cloudy.

Right now, at least 16 challenges against unions representing Pennsylvania public employees are in federal court, according to the Philadelphia labor law firm Willig Williams Davidson. At least 11 are from law firms connected to conservative funders.

The legal fights have often aimed to refund specific union dues for non-members, which were found unconstitutional in 2018. They’ve also sought to let members leave their union early.

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But Willig Williams Davidson associate Jessica Caggiano, who formerly represented the Pennsylvania State Education Association, said in a blog post that the state’s public sector unions were on a “winning streak.” Her firm is also representing some state unions against the lawsuits.

For example, a frequent target of the challenges — five as of right now — is Service Employees International Union Local 668, which represents thousands of human service workers across Pennsylvania.

“We’ve had three decisions, we were found to be on the right side of all of them,” Local 668 president Steve Catanese told the Capital-Star. 

In the 2018 decision known as Janus v. AFSCME, the U.S. Supreme Court found laws that mandated public employees pay so-called agency fees to unions, even if they were not a member, unconstitutional.

The fees are less than full dues, and supporters called the payments a fair share to cover union costs that help all employees. But opponents said the payments, specifically in government jobs, forced union members to support political speech they might not agree with.

In a large blow to organized labor, the high court  backed the latter interpretation in the case, filed by an Illinois public servant, and overturned decades-old precedent.

The ruling also kick started a wave of lawsuits by groups such as the Harrisburg-based Fairness Center, a public interest law group “that provides free legal services to those hurt by public-sector union officials,” according to its website.

According to a Fairness Center spokesperson, four active lawsuits have been filed by the center since the Janus ruling in summer 2018, and another three filed beforehand. 

“The reason Janus has been helpful to our clients, is Janus recognized the principle that public employees should be free to not support a public sector union if they want to,” the group’s president, David Osborne, told the Capital-Star.

The center was once, but is not currently, an associate member of the State Policy Network — a group of Koch-connected organizations that push free market policies in state legislatures and in the courts.

Catanese cited the association between right wing dark money and the lawsuits. He said he expected appeals in unsuccessful suits but that the union is “going to keep fighting because the people who pay them don’t want us to keep up the work we do.”

Still, Osborne claims some success. 

Before Janus, many union contracts had “maintenance of membership” clauses, according to Osborne, that only let members leave for a small window at the end of the contract. Following the ruling, many state public sector unions have promised to remove the provisions.

That win was voluntary, however. Osborne said the center would continue to appeal lawsuits to make sure the provisions are found unconstitutional, and pointed that that many are still awaiting their first judgment.

But if previously rulings are any guide, labor lawyer Caggiano said the odds look good for unions.

Judges have been granting unions a so-called “good faith defense,” Caggiano wrote in October.

For example, charging fair share fees was “indisputably legal” when they were taken from employees, so there is no legal argument against forcing their repayment to a disgruntled union member.

Even Mark Janus, the plaintiff in the original case, hasn’t had success in a subsequent lawsuit which seeks refunds on his agency fees. That case, brought by the Illinois-based Liberty Justice Center, also has filed four lawsuits in Pennsylvania.  

In early November, the Chicago-based U.S. 7th  Circuit Court of Appeals rejected his arguments.

“Mr. Janus has received all that he is entitled to: declaratory and injunctive relief, and a future free of any association with a public union,” the appellate court ruled, according to Bloomberg.

The circuit court rulings could especially bode well if one or two cases does break through, Caggiano said.

“Even if a court somehow found that a particular union wasn’t eligible for the good faith defense, I do not believe it would create a wave or ripple effect in other cases,” Caggiano told the Capital-Star. “At this point, such a decision would be a clear outlier from the numerous cases holding to the contrary.” 

But the cost for that individual union could still be high if a suit on behalf of, say, non-union fee payers was successful. One such suit against SEIU 668 alone was estimated to cost $1 million if successful. The union had $10 million in assets according to a 2018 federal form.

“For us, the stakes are higher,” Catanese said. “For them, they’re just playing with billionaires’ money.”