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Can Public Sector Unions Be Forced to Pay Back Previously Collected Agency Fees?

Precedents in the law are often double edged swords. They can help one ideological side in one case only to harm them in a future case. For example, a decision that helps liberals in one case might harm them in a future case. It is this factor that gives judge made law some semblance of neutrality. The liberals on the court in case one need to think about the consequences of their decision for future cases.

Of course, if a future court can distinguish the two decisions, then this neutrality is defeated. So, if the liberals who decided the matter in case one can distinguish case two, which would harm liberal interests, the neutrality of the law will be undermined.

I thought of this when reading a blog post by Will Baude about the possible liability of the public sector unions after the Janus case. Janus, of course, is the recent Supreme Court case that held it is unconstitutional for the states to require public employees to pay agency fees to labor unions if the public employees choose not to become members.  Baude asks: “what about the agency fees that unions had been collecting before Janus? Are unions liable for collecting them? Can they be forced to pay them back?”

It turns out that a lawsuit is being brought to force the unions to pay back the prior agency fees that were collected. According to Baude:

Janus makes it likely that unions can be sued for agency fees they collected in the past. The case for liability has three key steps.

First, Janus [applies] equally to conduct before it was decided as it does to conduct in the future. Under standard retroactivity doctrine, Supreme Court decisions are taken to state the true law as it has always been, rather than to change the law. . .

Second, even though unions are themselves private organizations, not the government, they can still be sued for constitutional violations because of the way they used the power of the state to collect money. They key precedent is a Supreme Court case called Lugar v. Edmondson Oil. In Lugar, the Court allowed lawsuits against private debt collectors because they had made use of an unconstitutional state statute that allowed the attachment of property without due process. Even though the debt collectors were private, they could be sued because they had used an unconstitutional statute passed by the state, and had “invok[ed] the aid of state officials to take advantage of state-created attachment procedures.” Union collection of agency fees appears to be analogous.

Third, unions do not have the qualified immunity defense that is available to government Section 1983 defendants. Most government officials have a qualified immunity defense when they were doing something that was thought to be constitutional at the time. But in a sequel to Lugar, called Wyatt v. Cole, the Supreme Court said that private entities do not get the same kind of defense.

It is interesting to think about the alignment of the justices in these cases. In Janus, it was the conservatives, in a 5-4 decision, who held that the collection of agency fees by public employer unions was unconstitutional. But in Lugar v. Edmondson Oil, it was the liberals, in a 5-4 decision, who held that private debt collectors could be sued for the unconstitutional action. In Lugar, a White opinion was joined by Brennan, Marshall, Blackman and Stevens. The dissenters were Burger, Powell, Rehnquist, and O’Connor.

It is not surprising that liberals would have opposed private debt collectors, whereas conservatives would have supported them. But if the nature of the parties and the issues between them influenced the justices, would they have had the same position if they knew the case would be applied to public employer unions in the future?

Perhaps the vote of the liberals yesterday will come back to haunt the liberals of today. And perhaps the loss of the conservatives of yesterday will provide a victory to the conservatives of today.

Of course, this type of analysis of Supreme Court decisions – based on ideology and of the identity of the parties rather than the relevant law – is only part of the story. But it is interesting.

Reader Discussion

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on July 20, 2018 at 09:55:36 am

I would question if the necessary nexus between union fee deduction and "state action" could be sufficiently established, however, it would be interesting to also consider which types of damages plaintiffs would be entitled.

Would they be entitled to compensatory for the fee's mandatorily, but unwillingly paid AND punitive for a violation of their Constitutional rights, per Janus, or would they ONLY be entitled to punitive? If you benefit from something even against your will, have you still suffered a loss deserving of compensatory relief?

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Paul Binotto
on July 20, 2018 at 14:04:07 pm

But of course it's a good thing for unions to be forced to represent members who don't pay bills, right? I foresee a suit by unions to not have to represent non-dues-payers. Those who want agency fees back are perfectly happy to have received the benefit of union contracts.

Surely it would be fair for unions to represent *only* dues paying members?

All of this smells ex post facto to me. Still, the actual Constitution must not get in the way of punishing unions.

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excessivelyperky
on July 20, 2018 at 15:01:59 pm

Absolute gibberish!

Sounds like an ex post facto silly argument to me.

Child, do you really think that any union wants to have another body of employees within a factory that the employer can choose to work with? The whole power of the union was its monopolization of the work force and the threat that posed to the employer.

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gargamel rules smurfs
on July 23, 2018 at 20:43:50 pm

Employers would prefer not to see any unions at all, or minimum wage laws, or safety regulations. Why should unions have to represent people who don't pay the fees? Why, soon you'll be saying that hospitals will have to pay for the care of people who don't intend to pay...

Don't call me child, sir, I'm probably older than you.

But again, penalizing unions for representing their workers sounds like something you would like anyway.

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excessivelyperky
on July 23, 2018 at 20:44:58 pm

And one more point--if workers get their fees back, they then should have to pay back the benefits they received.

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excessivelyperky
on July 23, 2018 at 23:25:55 pm

Then again, they may have received greater benefits without the *surcharge* to the union.

And Oh BTW, I have probably been in more unions than you.

And why do you look upon employers as some evil Dickensian overlords out of a 19th century sweat house.
Those days are long gone. Modern management has replaced the Scrooge types (except, of course, for the bloated salaries of bloated CEO's (male and female, BTW).

Have you ever run a major corporation? Have you ever managed real, live working people or does all this animosity towards the employer who provides a decent wage / living come from your *extensive* reading - or is that listening to people of the ilk of Alexandra Occasionally Cortex (but not very often) and her economic theorizing. Yep, the same moron who stole her co-workers tips!

Only I can abuse Smurfs in this fashion. I resent this!

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gargamel rules smurfs
on July 24, 2018 at 06:49:54 am

"[E]xcept, of course, for the bloated salaries of bloated CEO’s (male and female, BTW)" - You might also add, bloated Union Leaders (mostly male, btw)… not to step on your smurf, Mr. Gargamel...

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Paul Binotto

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