Three public-sector unions in Pennsylvania have recently ratified labor contracts allowing their members to resign at any time. Previously, these unions allowed members to resign during an annual 15-day window preceding the expiration of their labor contracts. This provision is referred to as a maintenance-of-membership clause.
Who are the unions, and who do they represent?
The three unions are the Service Employees International Union (SEIU) Local 668, the Pennsylvania State Correctional Officers Association, and the United Food and Commercial Workers (UFCW) Local 1776. Together, these three unions represent approximately 22,500 public-sector workers.
What are the reactions?
- David Osborne, president and general counsel for the Fairness Center, said, “Maintenance of membership restrictions clearly violate our clients’ constitutional rights, and union officials should have dropped those restrictions a long time ago. It’s a big step in the right direction. Our clients had to sue to enforce their rights and the rights of those who are similarly situated, and only then did their union officials start to doubt their constitutional authority to keep members from resigning.” The Pennsylvania-based Fairness Center is a nonprofit law firm that, according to its website, “provides free legal services to those hurt by public-sector union officials.”
- The Fairness Center has filed multiple lawsuits challenging maintenance-of membership clauses since the Supreme Court issued its 2018 ruling in Janus v. AFSCME. The court found that compelling public-sector workers to give any financial support to a union violates workers’ First Amendment rights.
- Wendell Young IV, president of UFCW Local 1776, said, “There’s a very basic element of every contract our union has in both the public and private sector and that is if any provision is found to be inconsistent due to a change in the law or invalidated by changes in the law, they are considered invalidated. So Janus changed the law. The Supreme Court ruled and whether I like the ruling or not contracts have to conform to the law. That’s why we changed them.” This appears to be one of the first instances in which a union representative has indicated that membership opt-out windows are inconsistent with Janus.
What comes next?
According to Osborne, the suits filed by the Fairness Center will proceed because state law does not prohibit the inclusion of maintenance-of-membership clauses in labor contracts. “Our clients are pursuing a court ruling that, among other protections, strikes down the ‘maintenance of membership’ statute as unconstitutional,” he said. Unions are contesting these suits, which are listed below.
- Nguyen v. A&R Local 4200 (case number: 3:19-cv-01351-WWE; filed Sept. 2, 2019, in the U.S. District Court for the District of Connecticut)
- Weyandt v. PSCOA (case number: 3:02-at-06000; filed June 14, 2019, in the U.S. District Court for the Middle District of Pennsylvania)
- Kabler v. UFCW, Local 1776 (case number: 1:19-cv-00395-UN1; filed March 6, 2019, in the U.S. District Court for the Middle District of Pennsylvania)
- James v. SEIU, Local 668 (case number: 2:19-cv-00053-CB; filed Jan. 17, 2019, in the U.S. District Court for the Western District of Pennsylvania)
- Molina v. SEIU, Local 668 (case number: 1:19-cv-00019-YK; filed Jan. 7, 2019, in the U.S. District Court for the Middle District of Pennsylvania)
The big picture
Number of relevant bills by state
We are currently tracking 102 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking.
Number of relevant bills by current legislative status
Number of relevant bills by partisan status of sponsor(s)
Recent legislative actions
No legislative actions have occurred since our last issue.
We #SCOTUS, so you don’t have to
The Supreme Court will hear arguments in four cases this week. Click here to read more about SCOTUS’ current term.
Click the links below to read more about the specific cases SCOTUS will hear this week:
- Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC, concerns the U.S. Constitution’s Appointments Clause. The case is consolidated with Aurelius Investment, LLC v. Puerto Rico, Official Committee of Debtors v. Aurelius Investment, LLC, United States v. Aurelius Investment, LLC, and UTIER v. Financial Oversight and Management Board for Puerto Rico.
In 2016, Congress enacted the Puerto Rico Oversight, Management, and Economic Stability Act. The act created the Financial Oversight and Management Board and authorized the board to begin debt adjustment proceedings on behalf of the Puerto Rico government. After the board began proceedings in 2017, Aurelius Investment, LLC, (“Aurelius”) and the Unión de Trabajadores de la Industria Eléctrica y Riego (“UTIER”) challenged the board’s authority in U.S. District Court, arguing the board members’ appointment violated the Constitution’s Appointments Clause. The District of Puerto Rico ruled against Aurelius and UTIER. On appeal, the 1st Circuit Court of Appeals reversed the district court in part, holding the board members “must be, and were not, appointed in compliance with the Appointments Clause.”
The issue: Whether the Appointments Clause governs the appointment of members of the Financial Oversight and Management Board for Puerto Rico.
- In Kansas v. Garcia, Ramiro Garcia, Donaldo Morales, and Guadalupe Ochoa-Lara were convicted of identity theft in Johnson County, Kansas. In each case, prosecutors used Social Security numbers found on I-9 and W-4 employment forms. Garcia, Morales, and Ochoa-Lara appealed their convictions, arguing the Immigration Reform and Control Act (IRCA) preempted their prosecution. On appeal, the Kansas Supreme Court reversed the three convictions.
The issue: (1) Whether IRCA expressly preempts states from using any information entered on or appended to a federal Form I-9. This includes common information such as name, date of birth, and Social Security number, in a prosecution of any person (citizen or alien) when that same, commonly used information also appears in non-IRCA documents, such as state tax forms, leases, and credit applications. (2) Whether the Immigration Reform and Control Act indirectly preempts Kansas’ prosecution of Garcia, Morales, and Ochoa-Lara.
- In Rotkiske v. Klemm, Kevin Rotkiske accumulated credit card debt between 2003 and 2005. Rotkiske’s bank referred the matter to Klemm & Associates (Klemm) for collection. Someone accepted service for a debt collection lawsuit on Rotkiske’s behalf without his knowledge. Klemm obtained a default judgment of approximately $1,500. Rotkiske sued Klemm for violating the Fair Debt Collection Practices Act (FDCPA), arguing the statute of limitations to file a suit begins when the plaintiff knows of his injury. On appeal, the 3rd Circuit rejected Rotkiske’s argument, affirming the ruling of the Eastern District of Pennsylvania and holding that the statute of limitations begins to run when the defendant allegedly violates the FDCPA.
The issue: Whether the one-year limitation period on a statute of limitations begins to run when a potential plaintiff violates the Fair Debt Collection Practices Act, as the 3rd Circuit has held, or begins to run when a potential plaintiff discovers a violation, as the 4th and 9th Circuits have held.
- In Mathena v. Malvo, Lee Boyd Malvo was convicted in 2004 of committing homicides in 2002, when he was 17 years old. Malvo was sentenced to four life terms without parole. In 2012, SCOTUS held in Miller v. Alabama that juvenile defendants could not be sentenced to life imprisonment without parole. In 2016, SCOTUS held in Montgomery v. Louisiana that the rule it established in Miller was retroactive. After Malvo filed applications for writs of habeas corpus relief, the district court vacated the four terms of life imprisonment and remanded the case for resentencing. On appeal, the 4th Circuit affirmed the district court’s ruling. The issue: Did the 4th Circuit err in concluding—in direct conflict with Virginia’s highest court and other courts—that a juvenile sentenced to life without parole is entitled to a new sentencing proceeding following SCOTUS’ 2016 decision in Montgomery v. Louisiana?
Upcoming SCOTUS dates
Here are the upcoming dates of interest in October:
- October 15:
- SCOTUS will hear arguments in one case.
- SCOTUS will release orders.
- October 16: SCOTUS will hear arguments in three cases.
- October 18: SCOTUS will conference. A conference is a private meeting of the justices.
- October 21: SCOTUS will release orders.
Parties petition SCOTUS to hear a case if they are not satisfied with a lower court’s decision. What do the parties petition the court to grant?
Choose an answer to find out!
Federal court action
The Senate has not confirmed any nominees since our October 7 issue.
The Senate has confirmed 152 of President Trump’s judicial nominees—105 district court judges, 43 appeals court judges, two Court of International Trade judges, and two Supreme Court justices—since January 2017.
President Trump has not announced any new Article III nominees since our October 7 edition.
The president has announced 224 Article III judicial nominations since taking office Jan. 20, 2017. The president named 69 judicial nominees in 2017 and 92 in 2018. For more information on the president’s judicial nominees, click here.
The federal judiciary currently has 107 vacancies. As of publication, there were 40 pending nominations.
According to the Administrative Office of U.S. Courts, an additional 16 judges have announced their intention to leave active judicial status during Trump’s first term.
For more information on judicial vacancies during Trump’s first term, click here.
Vacancies on the Circuit Courts
The following table lists the number of vacancies on the United States Court of Appeals from President Trump’s inauguration to the date of publication.
The Senate Judiciary Committee has not reported any new nominees out of committee since our October 7 edition.
Do you love judicial nomination, confirmation, and vacancy information? We figured you might. Our monthly Federal Vacancy Count, published at the start of each month, monitors all the faces and places moving in, moving out, and moving on in the federal judiciary. Click here for our most current count.
Need a daily fix of judicial nomination, confirmation, and vacancy information? Click here for continuing updates on the status of all federal judicial nominees.
Or, if you prefer, we also maintain a list of individuals President Trump has nominated.
Court in the spotlight
In each issue of Bold Justice, we highlight a federal court you should know more about. Right now, we’re taking a closer look at the 94 U.S. District Courts. The district courts are the general trial courts of the U.S. federal court system.
There is at least one judicial district for each state, and one each for Puerto Rico and the District of Columbia.
In this edition, we’re placing a spotlight on the U.S. District Court for the Northern District of New York. The Northern District of New York has original jurisdiction over cases filed in the following counties in the northern part of the state:
Decisions of the court may be appealed to the 2nd Circuit Court of Appeals.
The Northern District of New York has five authorized judgeships. There is currently one vacancy. The breakdown of current active judges by appointing president is:
- Barack Obama (D): Two judges
- George W. Bush (R): One judge
- Bill Clinton (D): One judge