June 22, 2021

Lawsuit alleges Pennsylvania public sector union failed to properly pursue grievance claim on behalf of nonmember

3 min read

A Harrisburg-based nonprofit public interest law firm has filed another lawsuit against a public sector union, alleging it failed to represent a nonmember employee who had a workplace grievance.

The Fairness Center recently filed a lawsuit with the Court of Common Pleas of Pennsylvania in Cambria County against the American Federation of State, County and Municipal Employees, or AFSCME, Council 13 on behalf of plaintiff Penny Gustafson.

In the legal filing, Gustafson, a residential services aide at the Pennsylvania Department of Human Services’ Ebensburg Center, alleges the local AFSCME failed to provide assistance and represent her during a workplace investigation because she chose not to be a union member.

According to information from The Fairness Center, Gustafson was placed on limited duties at the Ebensburg-based facility she works at in October 2019 because of a supposed workplace investigation.

While no actual probe occurred, Gustafson was placed on limited duties and not allowed to work overtime for a three-week period. She subsequently returned to regular work responsibilities without any discipline from her employer.

Gustafson, who works extensive overtime hours, reportedly earned less during the three-week period and enlisted the services of the AFSCME to file a grievance on her behalf.

In the ensuing eight months after, the lawsuit alleges Gustafson sought updates from Council 13 representatives and received infrequent communication on the status of the grievance. In June 2020, Gustafson said she learned AFSCME had settled her grievance months earlier without securing lost overtime pay.

The lawsuit alleges Gustafson received minimal representation from the union because she is not a paying member of the organization.

In a statement, Nathan McGrath, president of The Fairness Center, outlined why the organization chose to use its resources to file the lawsuit on Gustafson’s behalf. The complaint was filed May 18.

“Because AFSCME is Ms. Gustafson’s exclusive representative under state law, she has no choice in who represents her in her employment,” McGrath said. “Yet it seems that union officials chose to mistreat Ms. Gustafson simply because she chose not to be a union member.”

The role of public sector unions has come under heightened scrutiny in recent years. In 2018, the U.S. Supreme Court delivered its landmark ruling in the case of Janus v. AFSCME. The decision out of the nation’s highest court changed how labor unions could collect dues from non-union members.

Representatives from AFSCME Council 13 did not respond to a request for comment on The Fairness Center’s most recent lawsuit, which is one of multiple against the labor union.

But a statement released three years ago, immediately after the Supreme Court ruling, provides a glimpse into the organization’s view of the federal decision.

In it, Council 13 representatives said the Supreme Court ruling challenges the freedom of employees to galvanize together and protect the rights of American middle class workers.

“The history of the labor movement is full of ups and downs, but we never quit, and we will do whatever it takes to come back from this ruling and grow stronger than ever,” then-Council 13 Executive Director David Fillman said, in reference to Janus v. AFSCME. Fillman retired in November.

But from his vantage point, McGrath said the federal ruling, coupled with Pennsylvania law, make it clear fair representation is required of all public employees, regardless of whether they actively choose to participate in a union.

“(Gustafson) did not deserve to be treated like a second-class employee, merely for exercising her constitutional rights to be a nonmember,” McGrath said.

This article was originally posted on Lawsuit alleges Pennsylvania public sector union failed to properly pursue grievance claim on behalf of nonmember

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