Court reinstates lawsuit against union

Gustafson claims AFSCME failed to fairly represent her in dispute

The Pennsylvania Commonwealth Court last week reinstated a lawsuit against the American Federation of State, County and Municipal Employees that was brought by an employee of the Ebensburg Center, who claimed the union failed to properly represent her in a grievance against the state Department of Human Services.

Penny Gustafson, a residential services aide at the Ebensburg Center, was part of the bargaining unit represented by AFSCME Local 2047.

The appeals court explained that Gustafson was a member of the union but, in 2019, ended her membership.

The Department of Human Services, Gustafson's employer, in 2021 ruled that she was not eligible to work overtime for a three-week period while it investigated what the court summarized as "workplace misconduct."

She asked her local to file a grievance on her behalf because of her lost opportunities to earn overtime pay.

The local filed the grievance, but without notifying the worker, it settled the grievance rather than going to arbitration.

The local delayed telling Gustafson the results of the settlement, and when she finally was able to contact a representative of the District Council, it is alleged he told her that she was "sponging" off the union and that she received "minimal" or "limited" representation from the union "because she is a freeloader."

Gustafson, through attorney Logan Hetherington of the Fairness Center in Harrisburg, then filed a lawsuit in the Cambria County Court of Common Pleas seeking damages against AFSCME Local 2047, District Council 83 and Council 13.

The Fairness Center provides representation to workers who feel they have been aggrieved by public-sector union officials.

Gustafson, in her lawsuit, sought financial damages against the union for "breach of its fair representation duty."

The lawsuit seeks attorneys fees and also requests a trial by jury.

The union leadership responded by asking Judge Linda R. Fleming to dismiss Gustafson's complaint.

On Feb. 10, 2022, the Cambria judge dismissed the complaint against the union.

Gustafson then appealed to the Pennsylvania Commonwealth Court.

A seven-member panel of the court that included President Judge Renee Cohn Jubelirer has reinstated the complaint.

The court's opinion was written by Judge Anne E. Covey.

The appeals court reviewed both federal and state cases that deal with relative issues in which a worker claims the union discriminated against them.

The Covey opinion attempted to narrow the issues in the Gustafson case.

Gustafson, the opinion explained, is not seeking an order directing the union to now represent her in her grievance or to initiate arbitration proceedings.

She is not asking the court to decide the merits of her grievance or address wrongdoing by her employer, DHS.

The opinion explained, "Rather, (Gustafson's) sole claim is that AFSCME failed to fairly represent her during a workplace investigation and subsequent grievance proceeding.

"Clearly, (Gustafson) is seeking damages for AFSCME's breach of its fair representation duty because she was not a union member," the opinion clarified.

The case at this point has nothing to do with her grievance against the state agency, it was emphasized.

The panel has now sent it back to the Cambria judge, not only to consider Gustafson's claim of breach of duty by the union but also whether she has a right to trial by jury.