Legal challenges to agency fees moving through federal courts
By SHERRY HALBROOK
The federal court case Berman v. PEF that challenges PEF’s constitutional right to collect agency fees from employees who work in bargaining units the union represents, but who choose not to join the union, is moving forward.
This case is generally following in the footsteps of the notorious Friedrichs v. California Teachers Association case that ended up in a 4-4 split vote by the U.S. Supreme Court in 2016 following the death of Justice Antonin Scalia. Because the U.S. Supreme Court split evenly, it affirmed the precedent created in the 1977 U.S. Supreme court decision in Abood v. Detroit Board of Education, which ruled the imposition of such fees is constitutional.
Those who support the Berman challenge to PEF hope it will be appealed to and reviewed by the U.S. Supreme Court and that the addition of Justice Neil Gorsuch to that court will produce a 5-4 decision overturning the Abood precedent and finding the imposition of agency fees to be unconstitutional. That outcome would be potentially devastating to PEF and other public-employee unions nationwide.
On April 4, PEF received the decision on the state’s motion to dismiss in Berman v. PEF from Chief Judge Dora L. Irizarry of federal district court of the Eastern District of New York.
The court granted the state’s motion to dismiss Count 1 with respect to both PEF and the state. This count alleges that Civil Service Law Section 208(3), the provision that allows public-sector unions to collect agency fees from non-union members, is unconstitutional because it violates the first amendment. The federal district court relied on the Abood precedent in finding this provision of the state Civil Service Law is constitutional.
“So called ‘right-to-work’ groups and other plaintiffs, are trying to get this first amendment issue to the U.S. Supreme Court in order to get that court to overturn Abood,” said PEF President Wayne Spence. “Currently, the Janus v. AFSCME District 31 case is on track to be the first such case (since Justice Gorsuch was appointed) to get to the Supreme Court on this issue.”
“Count 2 of the complaint in Berman v. PEF challenges PEF’s agency fee process, including our chargeable/non-chargeable calculations,” said PEF General Counsel Lisa King. “This count, which alleges PEF’s agency-fee procedures are not constitutionally adequate, remains.
“As this is an on-going case, at this time, I can state that we are fully ready to defend our agency-fee process, including our calculations. Finally, you should know that, even if Mr. Berman were successful on this second count, it would not completely and fully prohibit PEF from collecting agency fees.”