To attorney David Osborne, the treatment of Pennsylvania state worker John Kabler by his union is a vestige of a bygone age.
“This is, in many ways, sort of a throwback to the 1940s, because closed shop – a requirement that you have to join a union to have a job – that was effectively outlawed in 1947,” Osborne, the president and general counsel of the Fairness Center, said during a phone interview this week.
The Fairness Center is representing Kabler, a clerk at one of the state-owned liquor stores, in a lawsuit against his union, the United Food and Commercial Workers Union. The lawsuit was filed in the U.S. District Court for the Middle District of Pennsylvania.
According to the lawsuit, when Kabler was hired in April 2017, he was immediately informed that he was required to join the union as a condition of his employment. Although he had no interest in being a union member, he complied so that he could take the job.
In addition to a verbal instruction that he had to join the union, Kabler received a letter that reiterated the requirement.
“It is a condition of employment with this company that you become a member in good standing with [UFCW] Local 1776,” the letter stated.
The letter also indicated that if Kabler were fail to maintain “good standing” with the union, the union would then contact his employer and demand that he be removed from the work schedule.
Osborne was careful to note that the Taft-Hartley Act of 1947, which outlawed closed shops in the U.S., at the time applied specifically to private sector unions.
“That was private sector, but to my knowledge, the public sector has never really adopted a closed shop because it was long dead,” he said. "So in many ways, this is sort of like going back to the beginning.”
In July 2018, after learning of the landmark Janus v. AFSCME Supreme Court decision that reaffirmed the First Amendment rights of public sector union workers, Kabler sought to leave the UFCW.
“John first reached out to, I think, the folks that he trusts the most on this, which is his employer,” the Pennsylvania Liquor Control Board, Osborne said. “And so, he sent an email to payroll and said, ‘how do I make these deductions stop?’ The answer that he got, and again, most state employees are getting the same answer, is ‘you have to talk to your union about it.’”
That left Kabler with no choice but to reach out to the very union representatives who had initially told him he had to be a union member to remain employed. The union did not respond to his resignation and continues to withdraw dues from his pay.
“One of the claims that we made in his lawsuit was not only that closed shop is unconstitutional, and maintenance of membership, which keeps people in unions for long periods of time, years at a time, is unconstitutional,” Osborne said. “We also made the claim that he's been denied due process. And we thought that was important because Mr. Kabler, like many other public employees, is really without any information as to how he can exercise his rights. And … the adjudicator of the dispute happens to have a conflict of interest.”
The lawsuit, Kabler v. UFCW, seeks to have Kabler declared a nonmember and to have all of the dues that he paid to the union since he was hired returned to him, plus interest, punitive damages and attorney fees. It also seeks an injunction against unions from communicating to new hires that they are required to become members when they begin employment.