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Unions won’t repay fair share dues

Appeals court upholds decision to dismiss class action lawsuits

Two large public employee unions will not be required to repay non-members who sued for the return of “fair share” payments they made over a period of many years, according to a recent decision by the U.S. 3rd Circuit Court of Appeals in Philadelphia.

The federal appeals court upheld decisions by U.S. District Judges Kim R. Gibson in Johnstown and Malachy E. Mannion in Harrisburg, which dismissed class action lawsuits filed by former school teachers and government workers, contending payments they made to the unions had been declared unconstitutional by the U.S. Supreme Court in 2018, and, therefore, their contributions should be repaid.

In an opinion written by 3rd Circuit Judge Midge Rendell, it was ruled that the unions involved in the lawsuits — the Pennsylvania State Education Association and the Service Employees International Union Local 668 in Harrisburg — representing thousands of employees, acted in “good” faith when requiring fair share payments from employees who were not members of the unions but who received the benefits of union collective bargaining efforts.

In 2018, the U.S. Supreme Court ruled in a case titled Janus v. AFSCME that those who were not members of the union, and who therefore did not pay dues, could also not be forced to pay additional fees as a requirement of their employment.

The Janus decision indicated the fair-share payments violated the employees’ First Amendment rights.

For instance, many of those objectors did not want their money to go toward union political activities.

As an alternative, the unions allowed employees to designate their fair share contributions toward a non-religious charity of their choice.

Rendell, in her lengthy opinion, found that union fair-share fees were “authorized for over four decades by Supreme Court precedent and a Pennsylvania statute that explicitly authorized fair-share fees for public-sector unions.”

The lawsuits brought on behalf of the teachers and government workers showed no “malice” and there was no evidence that the unions “either knew or should have known of (the state law’s) constitutional infirmity,” according to the Rendell opinion.

The appeals court opinion reflected an opinion filed 13 months ago by Judge Gibson in Johnstown when he dismissed the case noting, “It was objectively reasonable for union defendants to rely on state statute that was constitutional under controlling Supreme Court precedent when collecting fair-share fees from plaintiffs (those who sued).”

The 3rd Circuit decision however was not unanimous.

Judge D. Michael Fisher concurred with Rendell’s finding, but used a different line of reasoning based on common law, while Judge Peter Joseph Phipps, dissented.

Phipps raised the question whether a “good-faith” defense exists when the First Amendment protection of speech is involved.

“For that reason, I would reverse the orders dismissing these cases and remand for further proceedings,” he wrote in his 11-page script.

The class action lawsuits challenging fair-share payments were filed in Johnstown and Harrisburg in 2018, just prior to the issuance of the Janus decision by the Supreme Court.

The Johnstown lawsuit included that Sandra H. Ziegler, a teacher of 24 years with the Chestnut Ridge School District in Bedford County, who was a religious objector and who refused to designate her fair-share fees to a non-religious charity; Arthur Diamond, a teacher from Chester County, who wanted no part of the union; and Jeffrey Schwartz, a teacher in Cumberland County.

The defendants in the Johnstown lawsuit included the Pennsylvania State Education Association, representing nearly 180,000 teachers and related personnel, Gov. Tom Wolf, the Pennsylvania Attorney General and Bedford County District Attorney Lesley Childers-Potts, who was responsible for enforcement of state law allowing fair-share fees in the Chestnut Ridge School District.

The lawsuit in Harrisburg was brought by two government employees, Janie Wenzig and Catherine Kioussis.

A spokesman for the PSEA, Chris Lilienthal, said the PSEA was pleased with the decision by the 3rd Circuit. He emphasized that the PSEA stopped collecting fair-share fees immediately after the Janus decision was handed down.

The appeals court ruling found the PSEA acted in good faith when collecting the fees, Lilienthal emphasized.

The ruling by the 3rd Circuit, he said, was consistent with rulings from other circuit courts nationwide.

He said the union never got to the point where it was able to ascertain the possible financial impact of returning the fees.

Attorney Bruce Ludwig of Philadelphia, representing the SEIU, said the union was glad the 3rd Circuit agreed with other Circuit Courts throughout the nation by dismissing the request by former workers for the return of their fair-share payments.

He called the lawsuits “ridiculous and unfair” because the unions, in asking fair share fees, were following the law at the time.

He said the lawsuit and others like it are part of “right-wing” groups to bankrupt the unions.

The plaintiffs have the option of seeking review by the U.S. Supreme Court, but the spokesman for the teacher plaintiffs, Jonathan F. Mitchell of Austin, Texas, could not be reached for comment.

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