No refund of pre-Janus fair share payments

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The 6th Circuit held today that a union is entitled to rely on its good faith in following existing Ohio and longstanding Supreme Court precedent permitting fair-share fees, so an objecting employee is not entitled to a refund. Lee v. Ohio Education Association (6th Cir 02/24/2020) [PDF].

In Janus v. AFSCME (2018) the US Supreme Court held that it was unconstitutional to compel public sector employees to pay fair share fees to their union. Now the 6th. 7th, and 9th Circuits have held that the employees cannot recover a refund of payments they made prior to the Janus decision. I did a video [here] on the two earlier decisions.

In Lee v. Ohio Education Association, Plaintiff Lee sought a refund of "fair share" fees she was required to pay to her public-sector union. Shortly thereafter, the Supreme Court held such fees violated the First Amendment as a form of compelled speech, Jones v. AFSCME, Council 31. The trial court granted the union's motion to dismiss, ruling that the union, as a private actor sued under 42 USC Section 1983, was entitled to rely on its good faith in following existing Ohio and longstanding Supreme Court precedent, which had expressly permitted fair-share fees.

The 6th Circuit affirmed the dismissal of plaintiff's federal cause of action because the union's good-faith defense barred the claim. The court held that the trial court properly granted the motion to dismiss plaintiff's section 1983 claim because the union's reliance on existing authority satisfied the good-faith defense as a matter of law.

With respect to plaintiff's state-law conversion claim, the court found that plaintiff was contractually obligated to pay fair-share fees pursuant to the collective bargaining agreement – just as the union was obligated to collect them. It was a condition of plaintiff's employment that she pay fair-share fees. The court concluded plaintiff, therefore, had no right to ownership or possession of them at the time they were taken. Accordingly, the court affirmed the trial court's dismissal of plaintiff's state-law conversion claim.