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Friday, January 22, 2021

Janus ruling was the beginning, not the end, of the fight for protection against union coercion

In three federal lawsuits filed in December, some Pennsylvania public employees who resigned from their union last year outline how they continue to have union dues deducted from their paychecks in violation of their constitutional rights.

The U.S. Supreme Court ruled to invalidate mandatory union dues and fees for public sector workers in the 2018 Janus v. AFSCME ruling. Yet, it’s now evident that union leaders operating in collusion with their allies in government are continuing to deduct dues from nonunion members in states that operate in violation of federal law.

Pennsylvania is clearly one of those states, which is why the Fairness Center, a nonprofit public interest law firm based in Harrisburg, has been working on behalf of public workers to ensure that the Janus ruling is enforced.

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Most recently, the firm has taken up the cause of three employees with Pennsylvania’s Department of Human Services who resigned last year from the Service Employees International Union Local 668.

“Although Local 668 officials acknowledged our clients’ resignations, the union and Commonwealth continue to seize union dues from our clients’ paychecks,” Nathan McGrath, the president of the Fairness Center, said in a press release. “Our clients believe it’s unconstitutional for the Commonwealth and union to compel them to financially support Local 668 after they’ve resigned, and they’ve put the union and Commonwealth on notice that they no longer want to pay union dues.”

Part of the problem is that Pennsylvania has failed to reform and update labor laws that are not compatible with constitutional rights enshrined in the First and 14th Amendments. This includes a “maintenance of membership” provision that allows unions to limit when public employees may resign union membership to only a 15-day window period before collective bargaining agreements expire.

However, there are palpable indications that public employee unions are beginning to bow to the legal pressure from the Fairness Center and from individual workers who have fought to restore free speech rights.

Beginning in 2019, SEIU Local 668, United Food and Commercial Workers 1776, and the Pennsylvania State Correctional Officers Association made the first incremental steps toward removing maintenance of membership requirements from their contracts.

Unfortunately, the SEIU local has proven itself to be somewhat recalcitrant when it comes to recognizing the rights of individual workers who do not support the union’s political agenda. Just ask Melanie Rorabaugh, one of the three new litigants employed by the Department of Human Services. She initially resigned from the SEIU in January 2020, but the union never acknowledged her resignation.

Rorabaugh tried again with a second resignation letter in June 2020 that was recognized but with the caveat that Rorabaugh would only be recognized as a nonmember after a 10-day waiting period. Despite her resignation, union officials informed Rorabaugh that the SEIU would continue taking dues from her paycheck until a union-imposed window to resign becomes available to her in May 2021.

In a June 2020 letter to Rorabaugh, the SEIU explained that the deduction of dues from her paycheck would not stop until the window period that the union sets becomes operative. This is where the problems for the SEIU’s legal position comes into play.

Under the Janus ruling, public employees who aren’t union members must give their “affirmative consent” to having union dues taken from their paychecks. Rorabaugh’s legal complaint filed with the U.S. District Court for the Middle District of Pennsylvania makes it clear that she never offered this consent.

“A valid waiver of constitutional rights requires clear and compelling evidence that the putative waiver was voluntary, knowing, and intelligent and that enforcement of the waiver is not against public policy,” the complaint says. “Defendants bear the burden of proving that these criteria are satisfied. Plaintiff has never waived her constitutional right as a nonmember not to provide financial support via payroll deduction or other method to Local 668.”

There’s no debate about the fact that Rorabaugh is no longer a union member because even the SEIU has acknowledged this. The complaint argues that the continued deduction of union dues violates Rorabaugh’s free speech rights under the First Amendment and her “due process” rights under the 14th Amendment.

The Fairness Center is calling on the court to impose a permanent injunction that would prevent the defendants from enforcing the terms of the SEIU’s membership application, which includes the window period for resignation. The law firm is also asking for a judgment that ends the collection of union dues and also awards Rorabaugh compensatory damages that include, but are not limited to, the amount of union dues collected from her paycheck since the time of her resignation.

“Freedom is not self-executing,” Vincent Vernuccio, a senior fellow with the Mackinac Center For Public Policy in Michigan, said in an interview. “That’s why it’s important for Mackinac and other groups to inform employees about their rights.”

He points to Washington state, California, New York, and New Jersey as examples of states that “have taken steps to trap public employees into paying unions dues” while he finds that “Pennsylvania is a creature of older labor laws that need to be reformed.”

The lesson here for proponents of free speech is that a victory in the U.S. Supreme Court is the beginning, not the end, of legal efforts to ensure compliance with constitutional rights.

Kevin Mooney (@KevinMooneyDC) is a contributor to the Washington Examiner’s Beltway Confidential blog. He is an investigative reporter in Washington, D.C., who writes for several national publications.

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