Court win gives Pa. employee right to challenge AFSCME over unfair representation

Penny Gustafson alleges that AFSCME officials sabotaged her workplace grievance because she is not a union member, violating its duty of fair representation.

February 21, 2024, Harrisburg, Pa.—The Commonwealth Court has sided with state employee Penny Gustafson, allowing her complaint against AFSCME, Council 13 for intentionally mishandling her workplace grievance to proceed. The court’s decision, issued Tuesday, reinstates Gustafson’s complaint and remands the matter back to the Cambria County Court of Common Pleas where litigation will continue.

“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,” said Nathan McGrath, president and general counsel of the Fairness Center. “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. The court’s ruling 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.”

The Fairness Center is a nonprofit, public-interest law firm representing Gustafson in this suit.


Penny Gustafson is a residential services aide at Ebensburg Center, part of the Pa. Department of Human Services, in Cambria County. In 2019, Gustafson was improperly barred from working overtime and sought to recover her lost wages. When she approached AFSCME, Council 13 (her exclusive representative under the collective bargaining agreement) to file a grievance on her behalf, union officials told her she was a “freeloader” who was “sponging off” the union, and that she would receive minimal representation because she was not a member of the union.

However, Pennsylvania’s “duty of fair representation” law requires public-sector unions to properly represent all employees in their bargaining units regardless of an employee’s union membership status.

Gustafson never heard back from AFSCME officials when she asked for updates on her grievance. She finally learned that officials had resolved her grievance months before without securing her lost overtime pay.

In May 2021, Gustafson filed a lawsuit against AFSCME, Council 13, seeking a judgment against the union, as well as compensatory and punitive damages. The Cambria County Court of Common Pleas dismissed Gustafson’s suit in February 2022. She appealed to the Commonwealth Court which heard en banc oral argument in December 2023 and, this week, reversed the lower court’s decision.

Fairness Center attorneys are available for comment. Please contact Anna Kertland at or 844.293.1001 to schedule an interview.


The Fairness Center is a nonprofit, public interest law firm offering free legal services to those hurt by public-sector union officials. For more information visit