Pennsylvania Unions End Membership Mandates

Government unions abandon automatic enrollment after suits

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Some of Pennsylvania's most powerful labor unions have removed a key hurdle for workers who wish to resign their membership following a series of class action lawsuits.

Pennsylvania unions have long used maintenance of membership provisions (MMP) embedded in collective bargaining agreements to collect dues from government workers. Workers were only given a two week period to resign from the union ranks if they wished to cut ties. In response, several public-sector workers sued, arguing that the provisions are unconstitutional infringements on their freedom of speech. The unions agreed to suspend MMP, rather than run the risk of a lawsuit—even if they could lose tens of thousands of dollars in dues and fees.

David Osborne, president and general counsel of the Fairness Center, which represented the workers, said the contract provisions infringed on the First Amendment rights of workers. He said the government agencies that negotiated the contracts placed the interests of organized labor ahead of their own employees.

"People should have the First Amendment right not to associate with their unions and they shouldn't have a waiting period before they do that," Osborne said. "First Amendment rights should not be limited to 15 days every three or four years."

Pennsylvania, a traditional union stronghold, is the latest state to see the influence of organized labor recede in the wake of the landmark 2018 Janus v. AFSCME Supreme Court decision, which ruled that mandatory public-sector union membership violates the First Amendment. The decision motivated public-sector workers around the country to resign from their unions and stop paying dues.

Despite the ruling, however, three of Pennsylvania's public-sector unions—local branches of the Service Employees International Union (SEIU), United Food and Commercial Workers (UFCW) union, and Pennsylvania State Correctional Officers Association (PSCOA)—cited MMP to prevent employees from withdrawing their memberships, prompting workers to file suit.

"The narrative … following the Janus ruling was that union memberships would be largely unaffected," said Jessica Barnett, manager of policy research at the Commonwealth Foundation, a free-market think tank. "But union membership [rules show] that even if members want to leave, they are not allowed to." She added that the practice violates the First Amendment right to free association.

None of the unions returned requests for comment.

All three unions agreed to allow workers to leave the unions and stop paying membership fees, according to court documents filed during the summer. In total, 22,500 workers were freed from the MMP restrictions.

"Any employee of the Commonwealth who is or in the future becomes a member of Local 668 ‘may, at any time, resign from the Union, regardless of any window period which may be specified in the collective bargaining agreement or the Public Employee Relations Act,'" read an SEIU court filing. 

Osborne told the Washington Free Beacon that he suspects the unions gave in to the workers' demands to convince the judge to dismiss the lawsuit. However, Osborne said his clients remained committed to the cases because "the promises aren't legally enforceable" unless a court victory definitively declares such provisions unconstitutional.

"They are not looking to settle with our clients," Osborne said. "They are looking to tell the court that ‘we've fixed the problem and there's no need to address it.' I think they are terrified that the maintenance of membership is unconstitutional."

Pennsylvania's branch of AFSCME has also dropped MMP from its 2019 collective bargaining agreement. By pre-emptively suspending MMP, the unions could avoid some of the harsher penalties and settlements that labor organizations have suffered in other states. A Washington state SEIU chapter had to pay back more than $3 million in union dues that it collected from non-consenting home care workers, after losing a post-Janus class-action lawsuit.

"This week's settlement is a long-overdue vindication of caregivers' rights and is one of many steps necessary to hold SEIU 775 accountable for its illegal and unacceptable practices," the Freedom Foundation, a pro-free market organization that launched the lawsuit, said in a press statement.

Osborne is convinced that his clients will convince the court to pursue the case and set a new precedent barring the practice.

"To be clear, these cases are not over," Osborne said. "Pennsylvania really needs a ruling from the courts on the ruling that finally strikes down the maintenance of membership provision as unconstitutional. Everyone knows it already, we need a ruling from the court."