//  7/19/18  //  Commentary

The ink was barely dry on the pages of the Supreme Court’s 5-4 decision in Janus v. AFSCME, Council 31 before anti-union groups went for the jugular. 

Janus invalidated the decades-old practice by which public sector unions collected “fair share fees” from all workers in a given unit to support the union’s bargaining-related costs.  As a result, everyone agrees that as of June 27, 2018—the date Janus was decided—unions may no longer collect fair share fees from objecting workers.  

But within a week, lawyers representing anti-union workers in California filed a class action lawsuit that would go much, much further.  The complaint argues that not only must unions stop collecting fees moving forward, they must also refund all of the fees paid by objecting teachers “for as far back as the applicable statutes of limitations will allow.”  To give a sense of how catastrophic this would be for unions, a similar suit brought against a single union, SEIU Local 1000, seeks a refund of all fees collected since 2012—upwards of $100 million.

The existence of these lawsuits is certainly not surprising given right-to-work’s track record of going after unions.  But do the suits have any merit?

From the objecting worker’s perspective, the argument for a refund goes like this.  Janus says that the First Amendment forbids a public employer to deduct a fee from my paycheck and send it to a union.  That means my employer and the union violated the First Amendment every time they did so, for the duration of my employment.  And so to remedy that violation, the union must refund me the full amount of money that was wrongfully withheld (plus interest!).

The problem with this argument is that it fails to understand the concept of time.  True, after Janus, the collection of fair share fees violates the First Amendment, and so any attempt to do so would warrant a refund of the fees collected.  But before June 27, 2018, the controlling law was Abood v. Detroit Board of Education, a 1977 case that explicitly permitted fair share fees.  That means the Supreme Court itself had declared until June 27, 2018 that fair share fees didn’t violate the Constitution at all.

It can’t be overstated how fundamental the basic notion of time is to the rule of law.  If social actors can’t rely on existing, binding Supreme Court decisions to guide their decisions, the result would be disastrous.  To give an example, the Supreme Court held in a 1982 case called Lee v. United States that people have to pay social security taxes even if they hold a religious objection.  Ever since then, the federal government has collected those taxes without fail.  But if the Court were to reverse that ruling, would the federal government have to cut a refund to every objector for all of the taxes they’ve paid over the past 40 or 50 years, at the cost of billions (or perhaps trillions) of dollars? 

The plaintiffs in one of the Janus refund suits try to cabin the stunning reach of their argument by pointing out that the Supreme Court had raised some questions about Abood’s vitality back in a 2012 case called Knox v. SEIU Local 1000.  That means public sector unions and employers were “on notice” that Abood might one day be overruled.  And so, the plaintiffs argue, the union should only be on the hook for fees collected after Knox. 

There are any number of problems with this argument, too.  Start with what Knox actually said.  Far from overruling Abood (which is what would actually trigger a duty not to collect fair share fees and thus an obligation to refund any wrongfully withheld amounts), Knox merely called Abood an “anomaly—one that we have found to be justified by the interest in furthering ‘labor peace.’”  It would be beyond unfair to require unions to pay back over millions in fees they continued accepting because they took Justice Alito at his word when he described the practice as constitutionally “justified.”

In any case, there is a indisputable doctrine that easily resolves these refund actions in the unions’ favor: the good faith defense to § 1983 claims.  (The plaintiffs in the refund actions sue under § 1983 because they allege that the unions acted under color of state law in collecting fair share fees).  As Judge Shah of the Northern District of Illinois recognized in the course of rejecting a materially identical refund suit brought by objecting home healthcare workers after Harris v. Quinn,every single federal court of appeals to consider the doctrine has held that private parties cannot be held liable under § 1983 when they act in good faith.  See Pinsky v. Duncan, 79 F.3d 306, 311–12 (2d Cir. 1996); Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1275–78 (3d Cir. 1994); Wyatt v. Cole, 994 F.2d 1113, 1118–21 (5th Cir. 1993); Vector Research, Inc. v. Howard & Howard Attorneys P.C., 76 F.3d 692, 698–99 (6th Cir. 1996); Clement v. City of Glendale, 518 F.3d 1090, 1096–97 (9th Cir. 2008).

Here, of course, public sector unions were acting in the utmost good faith when they collected fair share fees before Janus: they were relying on the Supreme Court’s own binding case law.  If that is not good enough, we have bigger problems than the impending losses to public sector unions.  Sending unions into bankruptcy because they mistakenly trusted the Supreme Court when it stood by Abood in 2012 (and declined to overrule it again in 2014) would be more than a blow to middle class workers; it would be a serious danger to the rule of law.

Follow me on Twitter: @AaronTangLaw

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