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The Fallout from Janus: is PERA’s Maintenance of Membership Provision Next to Go?

As Published in the June, 2019 Issue of the PELRAS Newsletter

Published on: Mon 17th Jun, 2019 By: Paul N. Lalley

The U.S. Supreme Court’s decision last year in Janus v. AFSCME, Council 31 ended fair share fees for public sector unions as unconstitutional.  A group that has supported litigation against public sector unions in Pennsylvania—the Fairness Center—has taken aim at the constitutionality of the maintenance of membership provision in Act 195, in a lawsuit filed on March 27, 2019 in federal court, Wessner v. AFSMCE, Council 13.

As a quick refresher, Act 195 authorizes “maintenance of membership” provisions in collective bargaining agreements.  This means that the public employer and the union that represents the bargaining unit employees can agree that a bargaining-unit employee who is a dues-paying union member at the beginning of the collective bargaining agreement (“CBA”) must maintain his union membership for the duration of the agreement, with one narrow exception.  The exception is that bargaining-unit employees must have the right to resign their union membership during the last 15 days of the CBA’s term.  In other words, if the CBA has a four-year term from January 1, 2019 to December 31, 2022, the person who is a union member on January 1, 2019, must remain a union member (and pay his union dues) until December 16, 2022, at which date he may finally resign his membership (of course, only if he is aware of his right to do so).  

The plaintiff, Tammy Wessner, is a psychiatric aide at Wernersville State Hospital.  She alleges that she tried to resign her AFSCME membership in 2018 but that AFSCME refused to recognize her resignation.  AFSCME’s CBA with the Commonwealth runs from July 1, 2016 to June 30, 2019, so Ms. Wessner’s resignation did not fall within the 15-day period authorized by Act 195.  Because the CBA also authorizes automatic union dues deductions from her paycheck, Ms. Wessner’s AFSCME dues continued to be deducted from her pay after her attempt to resign her union membership.  As the Fairness Center states in its description of the case:  “Ms. Wessner seeks to establish that her constitutional rights cannot be limited to a 15-day resignation window every three or more years.”  The complaint asks the court to declare that Act 195’s maintenance of membership provision violates Wessner’s First Amendment right to freedom of association, and asks for a permanent injunction barring implementation of the CBA’s “union security” (i.e., maintenance of membership) clause.  

The Wessner case puts the ramifications of the Janus decision front and center.  If, as Janus held, fair share fees unconstitutionally compel a person to associate with the union, then why is compulsory union membership for the duration of a CBA any different?  The issue may very well revolve on whether the court finds that Act 195’s 15-day window to opt out of union membership serves the state’s interests in stability in employer-union relations, or whether it unduly burdens a public employee’s right not to associate with the union when she decides she no longer wants to be a member.  The case is worth following, and we will give updates on its status in future PELRAS presentations.