Op-ed: Citizens Take on Pennsylvania’s Public-Sector Unions

Originally published in National Review.

When Pennsylvania’s public-sector union leaders circulated emails calling on state employees to join protests against stricter U.S. immigration policies, not all of those employees were eager to do so. But thanks to union mandates enshrined in Pennsylvania labor laws, union members who differed with the political views of their leadership still had to pony up and lend their financial support to those rallies.

This arrangement did not sit well with John Kabler, who began to receive those emails a few weeks after he was hired, in April 2017, as a clerk in one of Pennsylvania’s state-run liquor stores. He did not like the idea of paying union dues to support political opinions that were not his own. Not only were union members asked to attend rallies, Kabler told me in an interview, “they were using my dues to protest the Republican Party’s position on immigration, which I thought was inappropriate.”

Although Kabler never wanted to join the United Food and Commercial Workers (UFCW), Local 1776, in the first place, he became convinced he had to sign on as a condition of his employment. The legal dispute that developed between Kabler and Local 1776 can be traced back to what court documents describe as a “mandatory, employer-sanctioned orientation session for new hires” at which, according to Kabler, he was told by union officials that he was required to join the union. As it turns out, Kabler was not required to join, and once that became apparent to him, he attempted to resign his membership.

It was when Local 1776 declined to acknowledge or honor his resignation request and the union continued to deduct union dues despite his resignation that the liquor-store clerk decided to take legal action. In Kabler’s experience, “90 percent of people don’t fight this, but I’m part of the 10 percent who does. I was not going to roll over. The union was taking positions that were 100 percent opposed to my beliefs and values.”

Kabler points to the U.S. Supreme Court ruling in Janus v. American Federation of State, County, and Municipal Employees, which was handed down two years ago, on June 27, 2018, as a major turning point in his relationship with the UFCW. (Janus is named for Mark Janus, an employee at the Illinois Department of Healthcare and Family Services who was the lead plaintiff in the case.) The ruling in Janus v. AFSCME said that under the First Amendment it is illegal to force public nonmember employees to pay “fair share” fees as a condition of their employment.

“When I read the Janus opinion, I saw it within the context of forced association,” Kabler says. “I went to our human resources department and said my understanding after reading the decision is I never should have been forced to join and I asked if that was the case. They refused to answer me and then said call the union. I asked to resign from the union at that point because it became my firm belief that I was coerced into joining a union in violation of my First Amendment rights.”

Just a couple of weeks after the Janus ruling, Kabler sent his resignation letter to Local 1776 by certified mail, according to his legal complaint. His employer, the Pennsylvania Liquor Control Board, responded with an email to Kabler on July 25, 2018, saying that the Janus decision was applicable only to nonunion workers paying fair-share fees and that the UFCW contract allows members to resign only within a certain window period, which he had missed. Under a provision of Pennsylvania labor law known as “maintenance of membership,” the UFCW, and other unions, can prevent employees from resigning unless they do so within a 15-day period that occurs when the collective-bargaining agreement expires, which may be once every three or more years.

“There’s a place for unions and I’m not anti-union,” Kabler says. “If you’re say a 21-year-old and just coming into the state, then the union has education benefits and other benefits. But, for me, having no children, there was nothing the union could do for me. I’m opposed to the collective bargaining, and I prefer to negotiate one-on-one with my manager. But right now, there’s no flexibility for me and for others.”

The Fairness Center, the nonprofit law firm based in Harrisburg, Pennsylvania, that represented Kabler, has argued in court that Pennsylvania labor law is out of step with the First Amendment rights of public employees and with the Supreme Court ruling in Janus. Kabler’s suit challenged the constitutionality of “maintenance of membership” and also asked for a refund of the dues collected from his paycheck. The suit filed with the U.S. District Court for the Middle District of Pennsylvania in March 2019 was settled in Kabler’s favor this past April after the union “capitulated to his demands,” as a press release from the Fairness Center said. The motion of dismissal in Kabler’s favor is available here.

The UFCW agreed to refund more than $1,700 in dues and interest to Kabler and also dropped maintenance-of-membership requirements from its contract with the state, which means that the roughly 3,000 employees of the Pennsylvania Liquor Control Board are no longer restricted to a window period if they decide to resign. However, despite the Janus ruling, Pennsylvania state laws that make it possible for public-employee unions to have maintenance-of-membership requirements and to charge fair-share fees to nonmembers remain on the books.

A big part of what broke open the case was a letter Kabler received from Local 1776 that explicitly told him that it was a “condition of employment” that he “become a member in good standing with Local 1776.” But even before the Janus ruling, Kabler was not required to join the union, says Nathan McGrath, an attorney with the Fairness Center. Janus entered into the Kabler case when UFCW officials said they had in fact let Kabler out of the union at some point but continued collecting dues from his paycheck. But because the Fairness Center had a copy of the union’s letter to Kabler, there was no denying that the UFCW told Kabler he had to join to keep his job.

“We were shocked when we saw the letter,” McGrath says. “The letter was key. But the union kept changing its story as the case went on. Janus became relevant when the union said Mr. Kabler was able to resign, but it kept taking his money. We said, wait a second. If he’s a nonmember, and he never gave a proper waiver, then he didn’t waive his constitutional rights not to pay. The whole point of Janus is that a nonmember employee’s default constitutional right is to not pay union fees, and a union may only collect fees from a nonmember if that person gives clear and affirmative consent that they are waiving their constitutional right not to pay union fees.” Kabler agrees on the importance of that letter, saying, “Otherwise, it would have just been my word against theirs.”

“There are two major impacts from the Kabler case,” says McGrath. “Number one, the union ran away from the maintenance-of-membership provision in collective bargaining, and number two, the case solidifies the fact that public employees do not have to join a union as a condition of employment despite what they may be told by union officials. The Kabler case restores constitutional rights that never should have been taken away.”

Some confusion remains as to “where Janus works into the case,” McGrath says, and “where we made our argument in the Kabler case. While it’s certainly true that public employees don’t have to join a union, what Janus really said was that nonmembers don’t have to pay a union fee. What we were saying is that if the union really let him out but kept taking his money, then Janus says he had to provide a proper waiver of his constitutional rights, and he definitely did not do that and so the union does not get to keep his money.”

The Janus ruling affects about 5 million government employees in 22 states who are no longer required to either join a union or pay fees as a condition of employment. The Commonwealth Foundation, a free-market think tank based in Harrisburg, has published an online, interactive database of labor laws in all 50 states. Pennsylvania stands out as one of the states with laws on the books that have not been brought into compliance with Janus.

“The state legislature in Pennsylvania must get involved to change the labor laws,” Kabler warns. “No one reads labor contracts. It’s difficult, tedious reading, and I wouldn’t have read it if I didn’t get involved in the fight.” As he sees it, the fact that he and others could be forced to pay for political activism they do not support demonstrates that Pennsylvania labor law does not secure free-speech rights in its current form.

The good news is that there are clear signs that Janus is beginning to have an impact. The U.S. Bureau of Labor Statistics (BLS) shows that for 2019, the first full reporting year since Janus, the national membership rate for public-sector unions, which include public-school employees, declined 0.3 percent, or by about 100,000, to the lowest-ever unionization rate since 1983. The reduction is primarily driven by numbers at the local level: there were 105,000 fewer union members in local government in 2019 than in 2018.

In Pennsylvania, some lawmakers are stepping up to codify the Janus ruling into state law. State representative Kate Klunk, a York County Republican, has introduced HB 785, which would require government employers to notify workers of their rights, and state representative Greg Rothman, a Cumberland County Republican, introduced HB 506 to allow government employees to resign from a union anytime they like without a window period or any other provisos.

The end result of Kabler v. UFCW 1776 is just the latest example of how Pennsylvania’s labor contracts are bowing to court pressure in the aftermath of Janus. SEIU 668, AFSCME 13, and the Pennsylvania State Correctional Officers Association (PSCOA) have also removed maintenance-of-membership requirements from their new contracts. Seven union contracts in the commonwealth are under negotiation this year, including some that expire at the end of June. This means there are ample opportunities to further restore free-speech rights.

Meanwhile, other Fairness Center clients are pressing ahead with a case on behalf of public-school teachers who are suing the Pennsylvania State Education Association, an affiliate of the National Education Association and the largest public-employee union in the state, with more than 180,000 members. The plaintiffs in Hartnett v. PSEA argue that they should not be forced to pay fair-share fees. The Fairness Center is partnering with the National Right to Work Foundation in the case, which currently sits before the Third Circuit Court of Appeals.

Through the Hartnett and Kabler cases, the Fairness Center aims to effect change in Pennsylvania law that would fully reflect Janus. Statutes left on the books, such as those permitting fair-share fees, that conflict with Janus are misleading for employees, and unions shouldn’t be able to take advantage of that confusion. Pennsylvania’s citizens deserve the free-speech protections that Janus ensured.