Hartnett v. Pennsylvania State Education Association, No. 19-2391 (3d Cir. 2020)
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Some public-sector employees join their local unions; others do not. If a collective-bargaining agreement contains an “agency-fee” provision, both union members and nonmembers must pay a portion of union dues. A Pennsylvania statute authorizes such a “fair share fee” arrangement, 71 Pa. Stat. 575(b). Nonmembers pay only the amount spent on the union’s collective-bargaining activities and do not subsidize political activity. In 2018, the Supreme Court decided Janus v. AFSCME, holding that forcing nonmembers to pay agency fees violates the First Amendment, striking down an Illinois statute. Janus said nothing about Pennsylvania law but its holding was clear.
Public-school teachers who had to pay agency fees under Pennsylvania law sued, seeking a declaration that the agency-fee provisions in their collective-bargaining agreements, and the Pennsylvania statutes authorizing them, were unconstitutional. When the Supreme Court issued its Janus decision, the Pennsylvania State Education Association instructed public schools to stop deducting agency fees from teachers’ paychecks and set up refund procedures. Pennsylvania’s Department of Labor and its Attorney General notified public-sector employers that they could no longer collect agency fees. The district court dismissed, noting the change in the law and the unions’ compliance with it. The Third Circuit affirmed, finding the case moot. The teachers no longer face any harm. Just because a statute may be unconstitutional does not mean that a federal court may declare it so; without any real dispute over the statute’s scope or enforceability.
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