After Supreme Court’s ‘Janus’ decision, Pa. is hub for anti-union lawsuits

Shalea Oliver had been trying to leave her union for more than a year when she found a website offering help.

It had a template resignation letter that she could send to her union, SEIU Local 668, and a form to fill out if the letter were not effective, which she did. Next, an organization called the Liberty Justice Center got in touch.

That was in August, two months after the U.S. Supreme Court issued a ruling that many predicted would savage public-sector unions. In Janus v. AFSCME, a case brought in part by the Liberty Justice Center and championed as one of its most notable successes, the Supreme Court said public-sector unions could not require workers to pay union fees — even though the union still has to bargain on their behalf. Union advocates say the conservative groups that funded the case hope it would cripple organized labor, and its political power, by driving public employees to leave their unions, while those groups say they are just fighting for workers’ rights.

Now, Oliver, 29, a caseworker who serves Southwest Philadelphia for the state’s Department of Human Services, is the face of the lawsuit filed last month by the Liberty Justice Center, which describes itself as a nonpartisan nonprofit that fights to protect economic liberty, private property rights, and free speech. The lawsuit argues that the Janus decision made it illegal for the state to deduct dues from Oliver’s paycheck and that she’s entitled to refunds of the dues, as well as the dues she paid before the Janus decision because she had no choice about joining the union.

If that sounds convoluted, that’s kind of the point: to test the limits of Janus.

Oliver’s legal action is part of a wave of lawsuits filed by groups such as the Liberty Justice Center to find other potential legal weaknesses in how unions operate.

There have been at least nine lawsuits filed on behalf of Pennsylvania workers since Janus.

In one that mirrors Oliver’s case, this one from the National Right to Work Legal Defense Foundation, a bus driver named Michael Mayer, who works for the Wallingford-Swarthmore School District, sued his employer and Teamsters Local 312 for collecting dues from him after Janus.

In another case, from the Fairness Center, a group of workers at Erie Water Works is suing AFSCME, alleging poor representation. And in a class action filed right before Janus against the Pennsylvania State Education Association and others, teachers are alleging that their unions were illegally collecting fees. That was part of a series of class actions filed by lawyer Jonathan Mitchell, described by the New York Times as a “mastermind of the anti-union legal campaign." He’s also a Trump nominee for a federal agency to improve government operations.

>> READ MORE: From 2018: How the Supreme Court ruling on labor unions in Janus vs. AFSCME could upend politics in Pennsylvania

Groups such as the Fairness Center and the Liberty Justice Center, which are backed by funders with business and conservative interests including billionaires Charles and David Koch, have filed similar suits since as early as 2012, but the legal actions have ramped up since Janus. Although some of the suits have been settled with unions refunding dues or fees to plaintiffs, no judge has issued a precedent-setting opinion on any Pennsylvania case.

“Our cases are about protecting workers’ rights — and the right to say no to a union is just as important as the right to say yes,” said Kristen Williamson, a spokesperson for the Liberty Justice Center.

Eric Rosso, who tracks these groups in his role as executive director of Pa. Spotlight, a watchdog for anti-union activity, says the Liberty Justice Center and its counterparts have doubled down on what he calls “busting unions in the legal sense" because their campaigns to get public-sector employees to drop out of their unions have not worked. That’s in large part, unions have said, due to labor’s efforts to counter the anti-union narrative and get members to sign recommitment cards. (Groups such as the Liberty Justice Center argue that’s because unions make it hard for members, such as Oliver, to drop out.) In Pennsylvania, public-sector unions have seen only a tiny fraction of members leave.

SEIU Local 668, which represents about 20,000 state employees, has lost about 100 members since Janus, said president Steve Catanese.

The Pennsylvania State Education Association, which represents about 142,300 teachers across the state, has lost about 1,200 members since Janus, said spokesperson Chris Lilienthal.

The five unions at the School District of Philadelphia represent about 18,000 workers and lost about 600 paying members, according to data from the School District. That number doesn’t distinguish between those who left their jobs in the last nine months and those who chose to leave the union because of Janus.

Rosso said these groups bringing lawsuits against unions are focusing on Pennsylvania because they see it as a swing state. “They think they can find more conservative-leaning union members to carry the water,” he said.

Beyond the Liberty Justice Center, the Fairness Center, and the National Right to Work Legal Defense Foundation, there are several other groups that have spent money on anti-union efforts in the state, he said, including the Commonwealth Foundation, Americans for Fair Treatment, Free to Teach, the Commonwealth Partners Chamber of Entrepreneurs, and MyPayMySay.

Other states that have seen several anti-union lawsuits include Illinois, where Mark Janus of the Janus case is from, and California.

These cases generally follow a formula, Rosso said: Find one person who is disgruntled with the union and use that person to try to “turn the entire union upside down.” Janus, for example, was a child-support specialist who became the face of the attack on public-sector unions and went on to work for the Liberty Justice Center after the Supreme Court ruling.

“Government workers from all across the United States have reached out to us because their newly restored First Amendment rights are being violated," said Williamson of the Liberty Justice Center.

Catanese, the Harrisburg-based president of Local 668, said what lawsuits like these do, other than cost the union time and money, is distract from his union’s involvement in the fight for a higher state minimum wage or broader health-care access.

“Instead, [the story] ends up being somebody suing the union," he said.

Dan Egan, a spokesperson for the state’s Office of Administration, said it does not comment on pending litigation.

As for Oliver, who’s suing Local 668, she said the union did not advocate for her interests as a newer, younger hire, though it did seem to do so for older, longtime employees. Instead of a pension, like her older colleagues, she said, she has a hybrid 401(k). And folks doing her exact same job get paid sometimes $20,000 more because they’ve been there longer. That’s not fair, she said.

“I do believe in the idea of union membership,” she said. “I just don’t support this one.”