(The Center Square) – A Pennsylvania state worker’s discrimination claim against a public union should proceed, a Commonwealth Court says.
Tuesday’s ruling means litigation in the Cambria Court of Common Pleas must resume two years after it was initially dismissed.
The lawsuit, filed in May 2021 by the Fairness Center, accuses Council 13 of the American Federation of State, County and Municipal Employees, or AFSCME, of violating its duty of fair representation when it negotiated an unfavorable settlement without the consent of the worker it involved, Penny Gustafson.
Nathan McGrath, president and general counsel for the Fairness Center, said the court’s decision to remand the case “safeguards the right of public employees to sue a union when it abuses them, and we look forward to helping Penny hold AFSCME officials accountable in court.”
“AFSCME officials thought they could get away with sabotaging Penny’s grievance and openly discriminating against her, but the Commonwealth Court has ensured her complaint will be heard,” he said. “Union officials didn’t want to represent our client because she wasn’t a union member, but Pennsylvania law says public-sector unions have a duty to fairly represent everyone in a bargaining union – members and nonmembers alike.”
Gustafson, a residential aide at the Department of Human Services’ Ebensburg Center, says the AFSCME sidelined her after she asked for its help to reclaim pay lost during a three-week period in October 2019.
According to legal documents, Gustafson was placed on temporary limited duty amid a workplace investigation that never occurred and ended with her full reinstatement without disciplinary action. During that time, however, she couldn’t work overtime – as she often did – and lost wages.
When Gustafson asked for help from AFSCME, she said the union offered few updates over the following eight months and eventually settled the grievance in June 2020 without her consent and without any extra pay.
All because, she said, she wasn’t a union member. This, despite state law that compels the union to intervene in employer disputes on her behalf.
During an en banc hearing held in December before the Commonwealth Court, Gustafson’s attorney, Logan Hetherington, said the union treated her like a “freeloader.”
“There must be something to address what the actual wrong that was done here,” he told the court. “We’re not talking about the grievance process at all. By being the gatekeeper, she couldn’t even get into that process.”
Amy Rosenberger, an attorney representing AFSCME, said decades of case law makes clear the matter should be settled through arbitration, not the judicial system. She also pointed to the county court’s ruling that Gustafson couldn’t seek damages because she failed to prove union officials engaged in conspiracy or collusion.
