He Tried to Quit His Union. The Law Didn’t Let Him, and He Lost His Government Job Instead.

Kevin Mooney / May 13, 2019

Francisco Molina, a social worker for more than 12 years in Lehigh County, Pennsylvania, grew dissatisfied with his government employee union and tried to resign from it last summer rather than continue to pay dues. State law wouldn’t let him leave the union, and taking a stand cost him his job.

Although he used to be a shop steward for Service Employees International Union Local 668 and lobbied on the union’s behalf in both Harrisburg and Washington, Molina says, he had decided to break with the SEIU in response to actions he viewed as hostile to free speech rights.

Molina, who was a social services aide in the Lehigh County Office of Children and Youth Services, says he also discovered that fellow union leaders did not provide rank-and-file members with accurate information.

“When I joined the union, I didn’t agree with their principles or values,” Molina, 52, told The Daily Signal in an interview. “But I wanted to make a difference with myself and my co-workers, and I felt that if I got involved, I could make some changes from within as a shop steward.”

“But my personal values never matched the union’s,” Molina said. “The further I got up the chain of command, I realized it was all an illusion and that what they were presenting to the rank and file was not true.”

When SEIU Local 668 asked Molina and co-workers to sign a new membership card in January 2018, he balked after carefully reviewing the language on the card.

Molina, who has three daughters with his wife of 32 years, says he refused to sign because he would be obligated to pay dues regardless of his membership status.

“Even if I wanted to go work for someone else, the union would have the ability to take money straight from my personal account if I had signed,” he told The Daily Signal.

SEIU Local 668 declined to comment for this report.

‘A Pre-Emptive Campaign’

It’s not just that leaders of public sector unions in Pennsylvania are reluctant to allow Molina and other members to resign, but that a state law locks in government employees to pay union dues against their will.

Now a federal court could rule that unconstitutional, or state legislators could amend the law to secure free speech rights.

A section of state law specifies that public employees may resign union membership only during a 15-day window before their contracts expire.

Public sector unions such as the Service Employees International Union stipulate that Molina and other members must submit a resignation letter by certified mail within that 15-day window.

But this “maintenance of membership” provision of Pennsylvania’s Public Employees Relations Act 195 doesn’t require unions to inform workers of the resignation window. And the state’s public payroll systems automatically deduct union dues from paychecks until employees, including Molina, find a way to unwind themselves from membership.

Even then, government workers who choose not to belong to unions have been required to pay “fair share” fees to keep their jobs.

What this means for Pennsylvania civil servants such as Molina—who differ with union leaders on a range of policy questions—is that they must spend part of their work day paying for political activism by the union that they don’t support.

“They had this emergency mandatory meeting in January [2018], where they said the old [membership] cards were invalid and we had to sign new ones,” Molina said of Local 668. “What they were doing was a pre-emptive campaign to avoid the legal ramifications of an unfavorable ruling in the Janus case.”

In that case, the U.S. Supreme Court ruled in June 2018 that “agency shop” laws requiring nonunion government workers to pay union fees violate the First Amendment rights of those who object to the political agenda of the union.

Justice Samuel Alito, author of the court’s opinion in Janus v. American Federation of State, County, and Municipal Employees, cited the First Amendment’s guarantees of freedom of speech and freedom of association in his ruling.

Alito made the point that individuals are not just free to speak, but also free to “refrain from speaking” and to “eschew association for expressive purposes.”

The labor laws at issue in the Janus case violate the “constitutional command” protecting citizens against government coercion, Alito argued: “Compelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command, and in most contexts, any such effort would be universally condemned.”

Lawmakers Respond

Rep. Greg Rothman, a Republican state lawmaker from Pennsylvania’s Cumberland County, introduced a bill to amend the law to allow government employees to resign from a union anytime they like, without a window to do so or any other restrictions.

“The public sector unions in Pennsylvania are extremely political, and collectively they are probably the biggest spender on political campaigns in the state,” Rothman said in a phone interview, adding:

They take political positions, which may not in a lot of cases represent the political views of their workers. Part of the First Amendment isn’t just about what I can say, but what someone says on my behalf, and you shouldn’t have your money going towards opinions that aren’t your own. You should also have a right to resign from an organization that doesn’t reflect your views, and you should not be required to be part of an organization in order to have a job.

Rothman’s bill, HB 506, is one of several that seek to turn the Supreme Court’s Janus ruling into law by amending existing Pennsylvania statutes.

State Rep. Kate Klunk, a York County Republican, introduced a measure, HB 785, that would require public sector employers to notify workers of their rights.

“The notice requirement is very simple and the onus is all on the public sector employer—be it the school district, municipality, or state government—to inform nonunion members that they are not required to make a payment to the union unless they affirmatively consent to do so,” Klunk told The Daily Signal in a phone interview.

“The unions have no express duty in any of these notices, as it’s only the employer that’s required to send out these notices. This is not pro-union or anti-union. This is just about telling employees what their rights are.”

As an attorney, Klunk has expressed concern that Pennsylvania will continue to face costly litigation until state laws are changed to conform with the Supreme Court ruling that struck down mandatory union dues.

Pennsylvania at Epicenter

The Janus ruling provided Molina with the opening he had sought to make a clean break.

In letter dated July 16, 2018, Molina resigned from SEIU Local 668. Although he wanted to quit the union before the high court’s decision, he knew he would have been compelled to pay “fair share” fees as a nonmember.

In his letter, Molina informed the SEIU that he wanted the deductions of dues to stop immediately. But they didn’t.

“Even after the Janus ruling, they continued to take dues out of my paycheck,” Molina said of the union. “According to their definition, after I resigned, I would been a nonunion member. There were others who resigned, but I was the most outspoken. I encouraged other workers to read the new cards carefully.”

The SEIU rejected Molina’s resignation letter, arguing that he had to remain a member under the “maintenance of membership” provision that applies to his contract.

Molina continued to protest, and was dismissed from his Lehigh County government job last summer, a few weeks after resigning from the union. Before 2004, he had worked in the private sector but didn’t belong to a union.

In January, Molina filed a lawsuit against SEIU Local 668, challenging the union’s refusal to allow him to resign and alleging that the union violated his constitutional rights under the First and 14th amendments.

“Under my contract, it says if I don’t pay my dues, the union can ask for my termination,” Molina told The Daily Signal. “That’s what I believe ended up happening in the end. I was terminated. I cannot work as a civil servant again for the state of Pennsylvania until this case is resolved.”

The Fairness Center, a nonprofit, public interest law firm based in Harrisburg, represents Molina.

“What Francisco [Molina] did for himself here was wonderful because he refused to sign a card that would have locked him into paying union dues regardless of his membership,” said David Osborne, president and general counsel of the Fairness Center. “He read the language and decided it didn’t make sense for him. So, what this case is about is a statute in Pennsylvania called ‘maintenance of membership’ that gives unions the right to keep members from resigning for years at a time.”

The Legal Landscape

The Fairness Center filed a separate but related class action lawsuit against Local 668 on behalf of public employees, challenging the “maintenance of membership” law on constitutional grounds. Both cases fit into a larger national picture.

The Daily Signal sought a response from SEIU Local 668 on the specifics of this article. The union responded to the request, but declined to comment.

Two other organizations—Liberty Justice Center, a nonprofit, public interest law center based in Illinois, and the National Right to Work Legal Defense Foundation—also entered the fray in Pennsylvania to challenge the legality of the continued deduction of union dues that have cost government workers thousands of dollars.

This was a significant development because the two legal advocacy groups partnered to represent Mark Janus, a child support specialist for Illinois state government, in the Supreme Court case that overturned mandatory union dues for government workers.

Liberty Justice Center has filed two lawsuits, one in Lebanon County on behalf of four mental health workers, and another in Philadelphia on behalf of a caseworker for the state’s Department of Health and Human Services.

Both of the center’s lawsuits cite the high court’s ruling in Janus v. American Federation of State, County, and Municipal Employees in arguing against the deduction of unions dues on First Amendment grounds. Both cases also challenge the unions’ current standing as the exclusive representative of the government workers who sued.

>>> Related:  Supreme Court Strikes Down Mandatory Union Fees for Government Employees

For its part, National Right to Work Legal Defense Foundation took up the case of a school bus driver in the Wallingford-Swarthmore School District who is asking for a refund of union fees that were withdrawn from his paycheck after he resigned his union membership.

The foundation filed suit against Teamsters Local 312 and the school district on behalf of the bus driver, who resigned from the Teamsters after the Janus ruling. The foundation also set up a website called MyJanusRights.org.

‘A Real Pushback’

The lead plaintiff in the Janus suit has some advice for unions that he shared with The Daily Signal.

“The public sector unions have been spending money on litigation, fighting the Janus decision and fighting workers that are resigning,” Janus said in an email. “Wouldn’t that money be better spent on representing their membership in matters that would better provide for the unions’ original purpose?”

Janus added:

It is cumbersome to resign from public sector unions. Now there is a real pushback by the public sector unions to prevent workers from leaving, in spite of the Janus ruling. What they are doing is denying these workers their First Amendment rights.

Meanwhile, the Fairness Center continues to cut its own path with active Janus-related litigation against AFSCME Council 89 and AFSCME Council 13, both in Pennsylvania.

Another active case that could have reverberations across Pennsylvania concerns a liquor store clerk, John Kabler, who alleges that Local 1776 of the United Food and Commercial Workers gave him false information and misled him into joining the union. Kabler also claims union leaders resisted his efforts to resign, and in March the center filed suit against the union on his behalf.

The public interest firm also settled some Pennsylvania cases in which the union agreed to allow their client to resign without paying more union dues. But these settlements were reached before the constitutionality of the “maintenance of membership” statute faced judicial scrutiny.

Charles Mitchell, president and CEO of the Commonwealth Foundation, a free market think tank based in Harrisburg, said he thinks he knows why.

“There’s a reason why unions like AFSCME and SEIU are relying upon maintenance of membership rules and the window periods in Pennsylvania,” Mitchell said in a phone interview. “It’s because it’s the next obvious piece of coercion available to them.”

“I think it’s very clear that these restrictions are not consistent with workers’ rights and with the First Amendment,” he said. “I also believe one of the many people in Pennsylvania challenging these restrictions will be successful. The Janus opinion is extremely important, and Mark Janus is a hero.”

While the Fairness Center continues to apply pressure in court, Mitchell sees another ace in the hole available to proponents of labor reform in the form of the new legislative proposals.

“There are many lawmakers who are now standing up and saying our laws are inconsistent with the Janus decision and we need to fix them and inform workers of their rights,” he said. “They are doing this despite all the money and influence available to public sector unions, and that’s a very positive development.”

Klunk, the Republican lawmaker from York County, would like to see her bill become law this year. Although Gov. Tom Wolf, a Democrat, has received political support from organized labor, Klunk says she is hopeful the governor will allow the bill to move forward.

Even if Wolf doesn’t the sign the measure, it could become law without his signature if it passes both houses of the Pennsylvania General Assembly.

“Right now, we are clogging up our courts with additional cases over an issue that has already has been settled at the federal level before the Supreme Court,” Klunk said. “This benefits no one, and my bill in its current form repeals an unconstitutional provision of our state law. Wolf is the governor of all the people, not just the unions, and he could sign the bill or choose not to sign it and let it become law.”

The Daily Signal contacted Wolf’s office by phone seeking comment for this story and emailed his press secretary, J.J. Abbott, asking whether the governor has a position on the legislative proposals to amend Act 195.

The Daily Signal also asked Abbott whether the governor had any concerns about the costs of litigation attached to a labor issue that already had been settled at the federal level. Abbott had not responded by publication time.

SEIU Local 668 has filed a motion seeking dismissal of Molina’s case. Osborne, head of the Fairness Center, said he expects the court to make a ruling on the union’s motion within the next month.

“The union has to bear a very heavy burden to demonstrate the case is moot and they will no longer violate the law,” Osborne said. “I don’t think there is any way the union can bear that burden.”