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Can Unions Be Sued For Janus Claims?

Surprising fallout from the Supreme Court's decision on agency fees

Last month the Supreme Court held in Janus v. AFSCME that it is unconstitutional for the states to require public employees to pay labor unions if they choose not to become members (these payments were called "agency fees"). There has been plenty written about what this means for the future of public sector unions and what might happen next. But it turns out that there is another important question: 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?

A series of lawsuits have been recently brought in seven states arguing that unions are liable, and now subject to quite significant liability. Noam Scheiber has a story in the New York Times about the suits, (and the lawyer bringing the suits, a former law professor and former Texas solicitor general, Jonathan Mitchell):

Even before the Supreme Court struck down mandatory union fees for government workers last month, the next phase of the conservative legal campaign against public-sector unions was underway.

In March, with the decision looming, lawyers representing government workers in Washington State asked a federal court to order one of the state's largest public-employee unions "to disgorge and refund" fees that nonmembers had already paid. Similar lawsuits were filed in California, New Jersey, New York, Pennsylvania, Minnesota and Ohio.

The complaints could upend the legal system by arguing that states and private parties like unions face liability even though they followed the law as it existed at the time. They could also cost unions hundreds of millions of dollars. ...

I'm quoted in the story (saying "If I were the unions, I'd be really nervous"), but I thought I'd say a little more here. As it happens, Eugene and I are co-writing an article about Janus (to be posted online and discussed here very soon) that discusses this possibility. Here is an adapted exerpt of what we say in the draft:

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. The black letter rule is now:

When this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule.

This means that courts must treat the involuntary collection of agency fees before Janus as unconstitutional.

Second, even though unions are themselves private organizations, not the government, they can still be sued under for constitutional violations because of the way they used the power of the state to collect money. They key precedent is a Supreme Cour 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. Just as with debt collection statutes, there were state statutes allowing the union to collect agency fees, and state officials who would deduct the fees from employee paychecks or otherwise make sure that the employees paid up. Even though they weren't responsible for the existence of the unconstitutional policy, they decided to make use of it, and used state power to do so. So the unions are likely to be liable under the same theory.

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.

Wyatt featured lawsuits against private parties who had made use of unconstitutional replevin, garnishment, or attachment statutes, much like in Lugar. But in Wyatt the Court said that even though the private parties could be sued for unconstitutional conduct, they didn't have the qualified immunity defense that the government would have.

Those three rules together mean that unions are likely to be liable for their pre-Janus conduct, for better or worse.

Moreover, since Janus requires non-members to "affirmatively consent" to all agency fees the damages could be substantial. The only sure limit on such suits is the statute of limitations, which varies by state and is generally 2-3 years.
The unions might have various defenses to mitigate the damages. In Wyatt, the Court reserved the possibility that private parties could make a separate "good faith" defense distinct from qualified immunity, and some lower courts have recognized such a doctrine. And it is a common intuition that such retroactive liability is quite unfair.
But unions should not be too confident that they will have such a defense against Janus suits. First, this good faith defense has never been endorsed by the Supreme Court, and there is little clear authority for it. If one of the cases makes it to the Court, there is no guarantee that the Justices will recognize this defense.

Second, these particular suits may make the Court particularly unsympathetic to such a defense. The Court's opinion in Janus specifically noted that "public-sector unions have been on notice for years regarding this Court's misgivings about Abood" and opined that, since 2012, "any public-sector union seeking an agency-fee provision in a collective-bargaining agreement must have understood that the constitutionality of such a provision was uncertain." So the courts may well conclude that unions were knowingly gambling on the continued validity of Abood, and therefore cannot complain about their losses.

I'm sure there will be more to say about these suits as things develop -- and we'll have much more to say about Janus and the First Amendment itself, quite soon.

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  • Rev. Arthur L. Kirkland||

    The right-wing union-bashing decisions should be the first rulings invalidated by an enlarged Supreme Court.

  • theomore||

    You noticed this was only about public sector unions? Of course you did. This came about when someone got too greedy. Someone in Illinois had the idea to force anyone who helped take care of a relative on disability money to be forced to give up some of that disability money because they were suddenly a "public employee." If someone had not gotten overly greedy and tried to 'force' people who had never asked or knew of a reason why they should join a union. Get too greedy and upset the applecart of everyone else.

    Blame the people who decided they could force relatives to give away some of that disability money.

    I've known of unions that helped their members. I also know of unions that are not run for the member but for a small class of fat pigs sucking down the members wealth. I hope the unions who do help their members are not hurt because someones greed went too far. Someone went too far, and because of that, all those fat cats living large on member dues are gonna take it where they don't want it.

  • The original jack burton||

    yep, trump has 23 more names on his list. Let's confirm all of them and have an "enlarged Supreme Court". I'll go for it.

  • Rev. Arthur L. Kirkland||

    The goobers should have their fun for the next couple of years. Enjoy it while it lasts. Then buckle up for a resumption of American progress, purge-style.

  • Maximus Cunctator||

    Forcing people to pay for pursuits they don't support? That's supposed to be progress? You keep using that word, but obviously you have no clue about what it means. Look, if it isn't (i) constitutional, and (ii) Pareto-sanctioned (both conditions are necessary, mind you), it can't be progress. Get a life, will you?

  • Rev. Arthur L. Kirkland||

    Forcing people to pay for pursuits they don't support?

    No one is forced to pay union dues.

    If you don't like a corporation's activities, find another stock. There are many from which to choose. If you don't like a union's activities, find another job. There are many -- more than there are investments -- from which to choose.

  • Goju||

    And if you don't like the President, leave? Never expected you to be a Love it or Leave it guy

  • DJK||

    "If you don't like a union's activities, find another job."

    Wait. Is The Good Reverend calling for freedom of contract? I never thought I'd see the day. The lack of intellectual honesty and consistency isn't at all surprising, though.

  • Sevo||

    Rev. Arthur L. Kirkland|7.20.18 @ 9:04AM|#
    "No one is forced to pay union dues."

    Government employment is predicated on paying union dues?
    Ever hear of A-1, goober?

  • damikesc||

    If you don't like a union, kill the union and bury it.

    Right?

  • markm23||

    Unlike corporations, unions are free to attempt to monopolize an entire segment of the economy. If you don't like the unions, you are likely to have to change not just your job but your career. That's considerably more of an imposition than selling stocks and buying others.

  • It’s me||

    Isn't that the same as paying taxes you don't agree with???

  • FlameCCT||

    The good Rev appears to fully support the Progressive Plantation (Marxist Utopia) with its Elitist Masters, Uncle Tom Overseers, and Proletariat Serfs. After all, the Elitist Masters know what is best for the Proletariat Serfs and therefore feel justified in using government force.

  • Jim Thom||

    "...buckle up for a resumption of American progress, purge-style."

    Scratch a "progressive" and you'll find a jack booted thug underneath, just about every time.

  • Microaggressor||

    Komrade Kirkland is a fitting nickname.

  • HMI||

    Or, those self-appointed ideological bearers of change who self-anoint their preferences as 'progress' will find themselves permanently engrossed in the circular firing squads they so enthusiastically now embrace.
    So entertaining.

  • SDN||

    The first purgee will be you.

  • TwelveInchPianist||

    "first purgee"

    The correct term is "first motherfucker up against the wall"

  • Sarcastr0||

    Love to see people bringing back the oldies.

  • ravenshrike||

    You went too far there Rev. Now everyone knows you're a parody account. Well, that or a psychopath.

  • Violent Sociopath||

    It's adorable when Democrats imagine that starting another civil war will end well for them.

  • BillyG||

    Once again you are promoting violence and murder of others. Perhaps you should re-evaluate where you stand when you believe murder is acceptable.

    Carry on, Tyrant.

  • Rev. Arthur L. Kirkland||

    Violence? Murder? That's silly.

    I envision peaceful accountability. Removing political appointees who oppose an agency's mission or engaged in mistreatment of career civil servants. Identifying and removing bigots in supervisory positions. Denying accreditation (and taxpayer funding) to "schools" that teach nonsense or reject science to flatter superstition. Protecting children by excluding teachers who disdain science from public schools. No violence. Just peace, love, understanding, truth, and justice.

  • Sevo||

    "I envision peaceful accountability."

    Sure you do; at the end of a gun.

  • FlameCCT||

    IIUC, you are fully on-board with President Trump in draining the swamp?

  • Greg J||

    "reject science"

    Ah, yes, the good old "it's scientific" orgasms from the Left, last seen in the "scientific history" of the Communists.

    I love watching religious zealots babble about "science". One thing you can be sure of, is that someone who never mentions the scientific method, but only rants about "science", has no clue what it is spouting about

  • sparkstable||

    Exactly! The single most scientific thing you can do is NOT trust anything! Skepticism is the bedrock of science. AND... science has never proven a single thing. It has disprove lots of things... but to prove something is an impossibility. We may have a good idea about something... but history is littered with good ideas of science that turned out to be completely wrong. To think that today's "science" is as good as it gets stinks of so much hubris it's not even funny.

    In other words... if 500 years ago people all just "accepted" the "settled truth" by all the "experts" then we would all "know" that it had been "proven" that the earth was at the center of the universe and that it was that way because God Almighty ordained it as such. Good thing some "science deniers" existed then and questioned the "science" of the day.

  • Cranedoc||

    "Denying accreditation (and taxpayer funding) to "schools" that teach nonsense"

    Like African American Studies?

  • Greg J||

    "Then buckle up for a resumption of American progress, purge-style."

    There's > 400 million firearms in private hands in America. American citizens each year buy more guns than, IIRC, every single police agency in the world, combined.

    The vast majority of those guns are in the hands of the people you're planning on "purging".

    You babble about "right-wing Civil War 2 fantasies", while writing about "purges"?

    Are you just a really poor AI?

  • perlchpr||

    Are you just a really poor AI?

    No, that's "Michael Hihn". And it's more like a short perl script than AI.

    Rev. Kirkland is just a mediocre parody account. OBL does a better job.

  • Greg J||

    The honest decisions preventing left wing groups from stealing money are the first decisions that should be overturned ofter left-wing court packing destroys the legitimacy of the "Supreme Court"

    Fixed if for you, Rev

  • Wolf Larsen||

    How's that Blue Electoral Wall holding up?

  • Last of the Shitlords||

    "The right-wing union-bashing decisions should be the first rulings invalidated by an enlarged Supreme Court."

    Stupid bitch. If the court lacking hype gets gunned up then Trump will preemptively do it with HIS picks. Your sorry ass could see an 11-2 origins list majority in everything for the next thirty years.

    So please, keep it up.

    MAGA baby.

  • David Nieporent||

    The right-wing union-bashing decisions should be the first rulings invalidated by an enlarged Supreme Court.

    Why do you hate the first amendment?

  • santamonica811||

    Good. Stupid unions...always trying for higher wages, better working conditions for their middle-class workers. A pox on them, I say. Bankrupt them all...even if they were only following existing laws!!! If I cared about those squishy, soft, pro-worker values, I would not be voting Republican.

    Let market forces rule!!! I doubt anyone can come up with a single example of where a company--when freed from external forces--ever acted against the interests of its employees.

  • Rigelsen||

    Did you miss the part where this was only about public sector unions?

  • theomore||

    " I wasn't promoted because I wasn't a union member" law suit. Is the next line that public unions need to watch out for.

  • Last of the Shitlords||

    "Did you miss the part where this was only about public sector unions?"

    Of course he did. Progtards gotta progtard you know.

  • Chem_Geek||

    Every company acts against the interests of its employees. The 1%er BSD MBA CEO Managers steal profit from the employees' labor.

  • Maximus Cunctator||

    Did you read that in the New Yuck Times?

  • Microaggressor||

    Karl Marx was right all along. What were we thinking, doubting His testimony?

  • sparkstable||

    To steal requires force or fraud. The employee was told UP FRONT under what conditions he would perform his labor, to what expectations, and with what compensation. He was given this compensation (if he wasn't... he already has a legal leg to stand on without unions). Seeing as how a) nothing was hidden, b) he was compensated in accordance to what the employee agreed to and c) he isn't forced BY THE EMPLOYER to stay against his will...by definition he has not been stolen from in any way. If he were being stolen from, then each day he would be worse off because of his job (all other things being equal... meaning he all other variables such as his spending habits etc. have no impact on his status leaving ONLY his employment). But given that it is precisely because he works that he hasn't starved to death in a matter of weeks or died from nature exposure for a lack of shelter and clothes, or any other number of natural ways he would die without his expenditure of labor to improve himself then he has NOT been stolen from but instead has been enriched. You may not like the rate at which he is enriching himself. You may not like the rate does not outpace his other life choices that cause him to lose wealth. But those are very... VERY... different things than his labor being "stolen." That would mean he has no say in the matter. A more accurate, modern example of someone's labor being taken from them, against their will, with no choice in the matter would be... taxes.

  • perlchpr||

    A more accurate, modern example of someone's labor being taken from them, against their will, with no choice in the matter would be... taxes.

    Hey now, that's not fair. I've been assured that you always have the choice to not work, if you don't want to pay taxes.

  • HMI||

    My advice would be for you to look at, say, the public sector union representing teachers in NYC universities (essentially the UFT). You'll be pleased to hear that, at least in the years I was forced to pay them dues, they made almost no attempt to noticeably improve wages or working conditions for their members. So, that's all good. Right?

  • It’s me||

    One Union not all.

  • HMI||

    And yet there I was, forced to pay.

  • gormadoc||

    He's replying to an idiot who said "always trying for higher wages, better working conditions for their middle-class workers". That is a fair counterargument to "always."

  • TwelveInchPianist||

    Yeah, those poor exploited civil servants...

  • Gmama||

    Federal workers are compensated about 17% more than private-sector workers. As a small business owner, I personally would LOVE to have a pension, 6 weeks paid vacation, and an 8 hour work day, however, I bust my ass paying for these things for me (but maybe a week of REAL vacation, and 60 hour work weeks) AND for government workers who cannot be fired, and who can retire young at a large percentage of their pay. The little guy pays for all these things, not fat cats.

  • It’s me||

    Sounds like you need a union job.

  • TwelveInchPianist||

    Yeah, let's give everybody a union job. And a nice, big beach house.

  • Longtobefree||

    And a pony?

  • Rock Lobster||

    A unicorn!

    If you're gonna dream, dream big.

  • Egypt Steve||

    And yet you have time to surf the web and comment on political blogs. You're an iron man.

  • Sevo||

    santamonica811|7.19.18 @ 8:06PM|#
    "Good. Stupid unions...always trying for higher wages, better working conditions for their middle-class workers...."
    And commies always trying to the good of the working man while involved in mass murder.
    Are you stupid enough to confuse the claimed desire with the result, of just hoping no one will notice your mis-direction?

  • markm23||

    santamonica811: Just what did the union do for people taking care of disabled relatives in their home? Nothing besides taking some of their money so union leaders could live high(er). So don't BS us about "trying for higher wages, better working conditions for their middle-class workers."

  • Chem_Geek||

    Any freeloaders who claim Janus fees, should be required to pay to the Union any and all salary, benefits, and other things of value, above and beyond the State or Federal minimum hourly wage, for that time they claim against the Union.

  • Chem_Geek||

    Edit: that time that they were horrifically subject to the greater pay, employee protections, and other collective bargaining benefits.

    Janus claimants should be required to pay the Union for any and all benefits, above and beyond the Federal or State minimum wage, that they received during their "horrific slavery to the Union."

  • DjDiverDan||

    Just windering, when did Chem_Geek become code for Complete_Moron?

  • Maximus Cunctator||

    When he OD'd on LSD.

  • David Nieporent||

    Uh, you realize that the vast majority of Americans are not in a union but get paid far more than minimum wage, right?

  • Microaggressor||

    Socialists, seemingly by definition, don't understand how wages are determined. Hence, they support unions based on the faith that they benefit the working class.

  • Longtobefree||

    Hence they support unions based on campaign contributions.
    If unions were prohibited from political contributions, how many democrats would give the 5 minutes time?

  • Rev. Arthur L. Kirkland||

    Union members should address this issue by treating freeloaders with precisely the level of camaraderie, kindness, and basic human social interaction any freeloader deserves. I've seen a lawyer leave a good partnership when ostracized by colleagues, and it did not take long. No one likes being treated like a non-entity.

  • Smooth Like a Rhapsody||

    That last sentence has the whiff of autobiography.

  • Last of the Shitlords||

    Arty is a high school dropout. No college for him.

  • Maximus Cunctator||

    Note, this is how "progressives" think about anyone who disagrees with them. Boy, do they suck.

  • ||

    Liberals are evil people who seek to use the power of the state to suppress anyone they disagree with. They have no qualms about using violence either, as Charlottesville showed us.

  • Rev. Arthur L. Kirkland||

    Your affinity for parasitic, cheating, thieving freeloaders is noted and disdained, as is your opposition to personal accountability. No wonder conservatives have trouble finding an audience beyond our depleted, uneducated, superstitious, stale-thinking, can't-keep-up backwaters.

  • Greg J||

    "parasitic, cheating, thieving freeloaders"? You mean like union bosses who do nothing of value? You mean like the NY "rubber room" teachers?

    www.newyorker.com/magazine/200.....ubber-room

    You mean like the bottom 1/3 of the bell curve of the employees, who get paid far more than they deserve, because they're paid on seniority, not work quality?

    "opposition to personal accountability" is the sine qua non of a union, any union

  • Get To Da Chippah||

    Quick, everyone! Shun the non-believer!

  • Jim Thom||

    Given what happened in Wisconsin (public sector union membership dropping by >50%), I sure hope the unions try this. Not quite the same as the "Never Trumpers" going from openly planning on who to snub before election day 2016 to being utterly irrelevant and ignored themselves now (other than Bill Kristol, who is still good for a laugh every few days), but in the ball park.

  • HMI||

    My suggestion is that unions who have been given the legal right backed by state force to shanghai the unwilling into paying them dues should, at minimum, be forced by law to hold open plebiscites by secret ballot every several years to see if their members still wish them (or others, or no one) to represent them. Surely that would be a victory for democracy that you would only cheer, nest-ce pas?

  • Goju||

    So, as someone with a legal education, you advocate for violating labor laws prohibiting exactly this behavior?
    Me thinks thou doth troll too much.

  • sparkstable||

    What happened to "love" and "understanding"? Now you want to be a bigot? Do the very things racists did during Jim Crow only for different qualifiers? Should we have "Union water fountains" and "Union lunch counters"? Non-union people should be denied jobs thereby dooming their existence into poverty for them and their family?

    Liberals are the most cognitively dissonant, vile, and reprehensible people to ever walk the earth.

  • Greg J||

    It's not "freeloading" when you're being shanghaied to a port where you don't want to go

    Any Union that wants to give up "sole representation" status and let everyone not in the Union negotiate for themselves, is more than welcome to do so

    Of course, what happens then is everyone in the top 40% bails on the union and negotiates a better deal for themselves, and the union enters a death spiral

    So, keep on talking about "freeloaders". The rest of us understand that the actual freeloaders are the leftist ideologues spend the "union money", and the loser employees getting a cut of the better employee's pay

  • sparkstable||

    And isn't the union freeloading on the people who don't WANT to be members by forcing them to pay dues? Union logic 101: You MUST give me what I want against your will. That's not freeloading. However, if I freely choose to do something that I believe will impact you in a positive way (this is arguable, but we will give them the benefit of the doubt here), and do so without your help anyway, YOU are freeloading.

  • William_Zanzinger||

    What makes you think that employers would give solo negotiators a "better deal" than a union?

  • Greg J||

    The union can only get paid what the average performer is worth.

    If you're a significantly above average performer, and the union doesn't get sole representation powers, then you can negotiate a better deal, or go elsewhere and get a better deal

    Either result lowers the value of the "average worker", decreasing the bargaining power of the union, and pushing more people to leave the union.

    There's only two things that can stop this death spiral:

    1: A workforce where quality of worker doesn't matter, because they're doing things any trained monkey can do

    2: A management that cares more about payoffs to the union than delivering a quality "product" to the customers (taxpayers, citizens, whoever is dealing w/ the Gov't on this)

  • damikesc||

    Any freeloaders who claim Janus fees, should be required to pay to the Union any and all salary, benefits, and other things of value, above and beyond the State or Federal minimum hourly wage, for that time they claim against the Union.

    Public unions only benefit the worst of the employees. They cannot negotiate on salary.

    So...unless you can demonstrate that they are the worst (good luck), the "free loaders" should rape the unions for every penny and laugh as they collapse and die.

  • Stephen Lathrop||

    Wouldn't unions targeted by suits like these mostly end up bankrupt? I get that right wingers think that's the point, to crush the unions. But what's to stop the more-committed members from founding new unions?

    More generally, it's not as if open warfare by government against unions has never been tried in this nation. What makes anyone think if government and business decide to re-play that script, it won't turn out just as successful for unions as before?

    But even if it did, it wouldn't look the same. With little manufacturing to speak of, and less employment in the extractive industries, the foot soldiers available to march for the unions would be less imposing. Many more women than before. But numbers and public sympathy dictated the outcome last time. They probably would again.

  • Bruce Hayden||

    I think, yes, this will probably end up with some union bankruptcies. If WI is any indication, the number of union members is likely to reduce significantly in the future, which likely means significantly fewer members to repay all those agency fees. Simple solution to the problem of having to repay all those agency fees, money that has long been spent, is bankruptcy. One limitation to this is that the new union may not win certification, since non members will be taking home more money than union members. My understanding is that under Obama, at a minimum, it was much harder to decertify a union than to originally certify one. And with union membership costing money, that is not similarly charged non-members, it may be hard to get the required majority for certifying the new union.

  • It’s me||

    How much money do you people unions dues are a month for the trade off? I've worked both Union and non-union, if you work for a good company you don't need a union....but there's not that many good companies left.
    Let's clarify the fight is between the company owners/board, rich, etc.... against labor
    Please safe the argument about union fat cats in comparison to CEO's and state directors wages(no comparison.
    Conservatives side with the rich not labor
    Democrats say they side with labor but sell out labor for a campaign contribution. Don't be blindly loyal to either they both are horrible at this point. We need multiple parties that can actually win.

  • Last of the Shitlords||

    So many things wrong with your way of thinking...........

  • Greg J||

    "But what's to stop the more-committed members from founding new unions?"

    Absolutely nothing. But unless "the more-committed" > 50% of total employees, they don't get to create a Union that has sole representation powers. Which destroys their ability to screw over everyone else

  • sparkstable||

    The horror!

  • Maximus Cunctator||

    Who said anything about crushing unions? I mean, it's clearly the case that public unions are a complete abomination and should be abolished, but that's not what we are discussing here, is it? That's not on the agenda, and no one put it there, unfortunately, so don't go half-cocked making up invalid accusations. What we are discussing is whether public unions should be subject to constitutional limits -- a seemingly radical idea that some bizarre minds on this blog clearly find objectionable. But the case under discussion is not anti-union, it just follows up on previously decided SCOTUS cases. So, can we stick with the facts -- just the facts, please -- and not get off the deep end just because we all hate each other, what?

  • Stephen Lathrop||

    Got it. Nobody among these commenters is anti-union. None of the VC bloggers is anti-union. No libertarians are anti-union. No state attorney generals are anti-union. No Washington think tanks are anti-union. No would-be plutocrats are anti-union. Anyone who thinks otherwise is just making things up and changing the subject. And even though EV himself calls the result, "surprising," it is actually not surprising. Come to think of it, that last bit is true.

  • HMI||

    I'm anti–union. Not against the right to organize, but very much against coerced membership. But maybe that's because of having been forced to join 3, of which 1, possibly, was worth a dime of my money. And because of run–ins with 3 others that were little more than rent–seeking cartels.

  • mpercy||

    All Government employees should realize that the process of collective bargaining, as usually understood, cannot be transplanted into the public service. It has its distinct and insurmountable limitations when applied to public personnel management. The very nature and purposes of Government make it impossible for administrative officials to represent fully or to bind the employer in mutual discussions with Government employee organizations. The employer is the whole people, who speak by means of laws enacted by their representatives in Congress. Accordingly, administrative officials and employees alike are governed and guided, and in many instances restricted, by laws which establish policies, procedures, or rules in personnel matters.

    FDR

  • Rock Lobster||

    Now you've done it... FDR's statues are now on the SJW hit list.

  • Brett Bellmore||

    "First, Janus equally to conduct before it was decided as it does to conduct in the future."

    Was there supposed to be an "applies" in there somewhere? Because the sentence just doesn't parse as is.

  • Michael Cox||

    Yes, these people don't seem to do editing or proofreading...

  • BillyG||

    But unions should not be too confident that they will have such a defense against Janus suits. First, this good faith defense has never been endorsed by the Supreme Court, and there is little clear authority for it. If one of the cases makes it to the Court, there is no guarantee that the Justices will recognize this defense.

    I've generally been for the good faith defense in the past, particularly for where the courts had previously ruled on the topic. I'm thinking back to a Short Circuit where a debt collector in Illinois (Chicago?) was punished for acting within a 20 year old ruling which then was substantially modified by a circuit. The debt collectors were then sued for being in non-compliance with the law, which was only determined after a new ruling changed the interpretation of it.

    While the legislature cannot retroactively change laws (ex post facto), it seems the Judiciary and/or Chevron can.

    At the minimum, the unions should be insulated from damages.

  • FlameCCT||

    The problem with the "good faith" defense for unions is there little problem with using union dues/agency fees for political purposes. If they run with the good faith defense then their books become part of discovery to determine what money was used for union purposes and what money was used for political purposes.

  • William_Zanzinger||

    But they have a First Amendment right to use funds for political purposes, right? So why should their exercise of that fundamental right change the analysis about how they collected those funds?

  • sparkstable||

    Some unions, and this may be all public unions by law, have separate accounts for political activity. The "union due" can ONLY be used for "union business" relating to the employee/employer dynamic. Politics is not covered by that. The union can petition its members to donate to a separate fund to pursue more politically centered activities, but can not use general funds for this as it would violate the freedom of speech of its members who do not hold the same political views as the organization that claims to represent them.

    Ironically... I'm forced to pay taxes to fund political activity I do not agree with and this is somehow seen as legitimate and just and not a violation of my First Amendment rights. Go figure.

  • TxJack 112||

    LMAO!!! If you believe this is true, I have some ocean front property outside Tulsa I would love to sell ya.

  • TxJack 112||

    Members also have a 1st amendment right to free speech. However forced membership means they are being forced to support and finance candidates and initiatives they may oppose. Unions no longer work for the good of their members but rather for the benefit and wealth of the union leadership and organization. I know people who moved to Texas when union jobs evaporated in non-right to work states. If they are contacted by the union and told a job exists, even if it pays less than they are making in Texas, UNDER STATE LAW, they must pack up and move back to their previous home or face being sued and fined thousands.

  • sparkstable||

    And... according to the article... they were warned some time ago that what they were doing may not be above board. To do it anyway can not be said to be done in "good faith" imo.

  • Sarcastr0||

    Also love to see people using RAK posts as proof I'm some kind of steely murderous badass, even as they stroke their own Civil War 2 fantasies.

  • Rev. Arthur L. Kirkland||

    The only thing better than right-wing Civil War 2 fantasies are conservatives' Rapture fantasies -- the time a United States senator told me, earnestly, that he couldn't get worked up about environmental protection debates because 'in the end, the Rapture will take care of all of this' is a favorite memory.

    Guess which political party caucused with that goober (who is now a popular television guest, because he is a strongly representative yahoo)?

  • Sarcastr0||

    I just like the stark evidence of the whole Umberto Eco 'Thus, by a continuous shifting of rhetorical focus, the enemies are at the same time too strong and too weak.'

  • Last of the Shitlords||

    Arty, you progtarded faggots are the ones with the civil war fantasizes. Americans just point out that you proggie traitors will be wiped off the map in about a week. Since none of you can fight and we have a thousand times as many guns far more training.

    At heart, you're just a bunch of dirty cowardly hippies. And fighting doesn't bode well for dirty hippies.

  • adamscales||

    Will,

    I find your first - and main - point a little odd. The rule you describe makes sense in a context of judicial silence preceding the announcement of the new rule. It is a bit hard to understand where the Court itself legitimated the previous practice, and overrules the old rule with a new rule. I may be missing some nuance here - on in the Abood-to-Janus holdings themselves, but perhaps you can clarify things for me.

    This does not seem like a "good faith" defense case. Good faith is when you are forced to guess about what the law permits; Abood told unions what the law, as understood until Janus, permitted.

    I'm grateful for the Janus ruling, as I am a public-sector employee whose contributions were demanded at metaphorical gunpoint. I am enormously tempted by the restitutionary possibilities here, yet this remedy seems frankly extraordinary to me in view of the judge-created settled expectations at issue.

  • sparkstable||

    It may be the interval between the time Abood came into question and Janus that a "good faith" claim could not be made. I agree, if the law was Abood then the unions did nothing wrong. If the next word on the matter was a completed Janus opinion, then a good faith claim would make sense. But given the warning signs that Abood may be in error, it's that intermediate stage that I would not accept "good faith".

  • retiredfire||

    "Janus" came about because the unions in question did everything they could to get around the "Abood" decision.
    If they had complied, and not fought, with every deceptive practice, to limit dues to only what was needed for collective bargaining, a suit like Janus would never have been filed. Instead they continued to extract amounts from those, who didn't want their money going to political causes they didn't agree with.
    Evidence of that would invalidate any "good faith" defense.

  • Thrax2||

    Hmmm. The Supreme Court's decision in Harris v. Quinn in 2014 said that home health care workers can't be forced to pay union dues. Courts since then, notably the Seventh Circuit in Riffey v. Rauner, have declined to let class actions to recover past dues proceed. Why are those decisions wrong?

    (Yes, I'm aware that the Supreme Court remanded Riffey for further consideration, but I don't see anything in Janus that changes the outcome.)

  • Longtobefree||

    There seems to be a direct correlation with the asbestos liability, at least as far a shipbuilding is concerned.
    The companies were building ships using asbestos at the direct instruction of the US government. Yet they were found, after the fact, to be liable for the injury to workers.
    So it would seem, as risky as it is applying logic and reason to a court decision, that unions acting without direct government instruction, but using government authority over payroll deductions, would be liable for repayment of unconstitutionally take monies.

  • Deplorable Victor||

    BRAVO! RUIN THE FILTHY UNIONS! MAGA!

  • Kazinski||

    I think the lack of self awareness is pretty stunning when you have the same cohort arguing that money is so corrupting to our political process that you need strict limits on how much you can spend, when you can spend it, and what you can say, especially when opposing an incumbent, while at the same time enabling politicians and unions to coerce money from public employees to spend on getting politicians elected and keeping them in power.

  • Ben of Houston||

    I don't know. Even if this is the way the Supreme Court is supposed to work, this smacks of a post-hoc law. It's not like, say, the Miranda decision, where we are imposing rights here. This is people, working in good faith that they were complying with the law, being punished for something that was legal at the time.

    Unions need to compete on a level playing field to convince people to join. They shouldn't be able to compel people. However, they shouldn't be retroactively bankrupted either.

    This is why policy and decisions need to be made by Congress, not the courts, to avoid these sorts of issues.

  • Longtobefree||

    It was not legal at the time. The court said exactly that; it was unconstitutional then now and in the future. (unless overturned)
    It is not a post-hoc law because it is not a law. It is a judicial ruling.

  • Hank Phillips||

    So let's restore second amendment rights to folks branded felons on account of plant leaves that (thanks to LP spoiler votes) have since been decriminalized?

  • Ben of Houston||

    Yes, Hank, that is precisely the sort of situation that retroactive judgements should apply to.

    Long, I have to disagree. A judicial ruling of this type is for all intents and purposes, a new law. This is especially since they overturned a prior precedent. The constitutional ban on post-hoc laws SHOULD apply. After all, the entire point of the rule of law is that people know what the law is. Any lawyer consulted in this country would have said that the compulsory dues were legal. Trying to make this change retroactive is to undermine the law.

  • retiredfire||

    The prior precedent said that the unions could require dues from non members only to the extent that it was used for all employees benefit - generally only collective bargaining and especially excluding political contributions.
    When the unions did everything they could to get around that, this "new law" basically said, "if you can't comply with what we said you could do, then we will go further and say you can't collect any money, at all".
    It is the difference between what was actually collected and what they were allowed to collect that would be the subject of claims for restitution. The excess amount having been collected unconstitutionally.
    Nothing retroactive here, at all.

  • Hank Phillips||

    Ha ha ha ha ha! Restitution! Imagine that!

  • Rock Lobster||

    "Those three rules together mean that unions are likely to be liable for their pre-Janus conduct, for better or worse."

    Definitely for the better, as evidenced by the viscerally negative reaction of the resident progressive shills. Who knew that using lawsuits as political weapons might be a double-edged sword?

  • damikesc||

    Aren't public unions unable to do squat when it comes to income? They can only work on things like work conditions?

    I'm not seeing their usefulness. At all. Screw 'em.

  • Lee Moore||

    It's not clear to me why the suit is against the unions rather than the employers.

    The analogy with debt collectors doesn't seem quite right because debt collectors are the folk who actually take your money. But in this case, the employer has promised to pay the employee 100 and has delivered only 90, choosing to give 10 to the union.
    Lucky union and nice work if you can get it. But why would the union be liable to the employee ? It may have received an amount equivalent to the amount by which the employer has underpaid the employee, but it didn't take the money. It was given it by the employer.

    I see EV mentions "qualified immunity" for the state employers, but I can't believe you get qualified immunity for not paying your employees their pay. I'm I'm wrong on that, I have a swamp draining idea.

  • Lee Moore||

    Sorry, I meant WB rather than EV

  • Kelarjian||

    It happened last week, here in California. It's against the far Left SEIU.
    Godspeed.

  • TxJack 112||

    I worked for a major industrial union and was even the shop steward of my collective bargaining unit. The organization I worked for was created to help laid off and disabled union employees learn new job skills and find new employment. When I was hired the organization had been operating for 20 years. Due to finances, we began applying for government grants to fund operations. Shortly after we received our first grants, the union leadership slowly started to take control. The first thing they did was manipulate our retirement accounts moving us out of the pension fund, into a 401K and then back into the pension fund, adding the requirement we had to be employees for 5 yrs after the date we re-entered the pension fund. We were operating on 3 yr grants and were all terminated before we reached 5 yrs so the Union kept the millions they had matched in our retirement accounts. Personally, I lost almost $60K in retirement income. The reason for this lawsuit and others is unions no longer work to represent the people paying dues. They are political organizations who care only about protecting and enriching themselves

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