By Katherine Schaeffer Calkins Media
Two Ellwood City Area School District educators have joined two other Pennsylvania teachers in a federal lawsuit filed against the state’s largest teachers union and three school district superintendents.
The lawsuit, filed Jan. 18 in U.S. District Court for the Middle District of Pennsylvania, challenges public sector unions’ right to charge workers “fair share fees,” which cover the cost of union services for employees who have opted out of union membership. The suit seeks declaratory and injunctive relief and nominal damages from the Pennsylvania State Education Association and the superintendents of the Ellwood City, Homer-Center and Twin Valley school districts.
Ellwood City teachers Rob Brough and John Cress, Homer-Center teacher Greg Hartnett and Twin Valley teacher Elizabeth Galaska have all opted out of education association membership in their respective districts. They contend that they should not have to pay fair share fees, also called agency fees, which they believe violate the First Amendment rights of free speech and association for workers who disagree with the union’s political positions.
In Pennsylvania, state law permits public sector employees to refuse union membership, but if the union requires them to contribute fair share fees — which are discounted compared to membership dues, they must do so.
Ellwood City, Homer-Center and Twin Valley each deduct a fair share fee from each nonmembers’ paycheck and transfer the amount to the district’s education association, which then sends the fee to PSEA.
The teachers chose to file this lawsuit because they do not want the union’s services, and although they have resigned membership, are still forced to pay, said Nathan McGrath, vice president and chief litigation counsel for the Fairness Center, who is representing the plaintiffs.
The Fairness Center is a nonprofit law firm that provides legal services to “those hurt by public employee union leaders,” according to the organization’s website.
For Brough and Cress, Ellwood Area Education Association fair share fees can amount to between $400 and $600 per year, McGrath said.
“These people have brought this lawsuit so they can defend their rights and not be compelled to pay for services they haven’t asked for and don’t want,” McGrath said, adding that his clients would prefer unions bargain on behalf of members only, rather than represent all employees.
The fair share fee simply covers the cost of the services unions are legally required to provide nonmember employees, PSEA President Jerry Oleksiak said in a statement.
“It’s only fair in any walk of life to pay a fee for benefits you receive — and for benefits that unions like PSEA have no choice but to provide to nonmembers,” said Oleksiak, a special-education teacher in the Upper Merion Area School District. “This lawsuit is another attempt to undermine this basic fairness and make it harder for teachers, nurses and other workers to do their jobs.”
In districts that require teachers to pay fair share fees, the union is still legally responsible for representing all teachers during collective bargaining and grievance and disciplinary proceedings. The teachers are also protected by the conditions of their collective bargaining agreement, such as securing the same salary and benefits as other teachers in the district with comparable experience and education.
PSEA’s fair share fees do not contribute to the union’s advocacy and political activities, nor do they ever go directly to political candidates, according to the association’s website.
Federal law prohibits unions from using fair share fees to support the union’s political activities.
Teachers unions are required to file an LM-2 financial document annually with the U.S. Department of Labor, including a detailed report of the year’s “political activities and lobbying,” which must show that no portion of fair share fees have gone toward promoting a political agenda.
Hartnett et al v. Pennsylvania State Education Association et al follows Friedrichs v. California Teachers Association, a 2016 Supreme Court Case filed by a third-grade teacher near Anaheim, Calif., who alleged that her fair share fees paid for the union to promote a political — rather than educational — agenda and violated her First Amendment rights of free speech and association.
Friedrichs v. CTA split the court 4-4 and upheld public employee unions’ right to charge nonmember employees for the union services they benefit from.
If the 2016 decision had gone the other way, it would have reversed Abood v. Detroit Board of Education, a 1977 Supreme Court decision that permits public sector unions to collect fair share fees from all employees the union represents. The court at the time argued these fees are constitutional; they preserve “labor peace” in the public sector and eliminate “free riders” who benefit from the union’s services without paying their “fair share.”
Currently, Pennsylvania is one of 23 states that allow public employee unions to collect fair share fees.
In the majority of the state’s 500 school districts, teachers who decide not to join their district’s union are still required to contribute discounted “agency fees” which go toward collective bargaining costs.
PSEA, an affiliate of the National Education Association, represents about 180,000 current and retired teachers, school employees and health-care workers.