** WELCOME TO UNION STATION
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** DECEMBER 4, 2020
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Welcome to _Union Station_, our weekly newsletter that keeps you abreast of the legislation, national trends, and public debate surrounding public-sector union policy.
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** FIRST CIRCUIT: NEW HAMPSHIRE WORKERS NOT ENTITLED TO REFUNDS FOR PREVIOUSLY PAID UNION FEES
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On Nov. 30, a three-judge panel of the U.S. Court of Appeals for the First Circuit ruled ([link removed]) that public-sector unions are not liable for refunding fees paid by non-members before _Janus v. AFSCME_.
** PARTIES TO THE LAWSUIT
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The plaintiffs are Patrick Doughty and Randy Severance, New Hampshire state workers. Attorneys from the National Right to Work Legal Defense Foundation represent the plaintiffs. The defendant is the State Employee's Association of New Hampshire (SEA).
** WHAT'S AT ISSUE, AND HOW THE LOWER COURT RULED
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On Jan. 14, 2019, Doughty and Severance filed a class-action lawsuit ([link removed]) against SEA in the U.S. District Court for the District of New Hampshire. Doughty and Severance alleged that SEA had violated their First and Fourteenth Amendment rights "not to associate with or financially support a labor organization and its affiliates as a condition of employment, without their affirmative consent and knowing waiver of their First Amendment rights." They asked that the court order SEA to refund all agency fees that they and others (i.e., non-member employees) had paid before _Janus v. AFSCME ([link removed]) _.
The plaintiffs cited 42 U.S.C. § 1983 ([link removed]) , a federal statute establishing that any person who, "under color of any statute, ordinance, regulation, custom, or usage, of any state or territory," deprives a U.S. citizen of his or her constitutional rights can be held liable in a court of law.
SEA moved to dismiss the suit. On June 6, 2019, Judge Paul Barbadoro, a George H.W. Bush (R) appointee, granted ([link removed]) SEA's motion to dismiss, ruling that SEA had deducted the disputed fees in good faith under the then-controlling precedent established by _Abood v. Detroit Board of Education ([link removed]) _.
ABOUT _JANUS_ AND _ABOOD_: On June 27, 2018, the U.S. Supreme Court issued its 5-4 decision in _Janus v. AFSCME_, ruling that public-sector unions cannot compel the non-member employees they represent to pay fees to cover the costs of non-political union activities. This decision overturned the precedent established in _Abood v. Detroit Board of Education_ in 1977. In Abood, the U.S. Supreme Court held that it was not a violation of employees' free-speech and associational rights to require them to pay fees to support union activities from which they benefited (e.g., collective bargaining, contract administration, etc.). These fees were commonly referred to as agency fees or fair-share fees
** HOW THE FIRST CIRCUIT RULED
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On Nov. 30, the three-judge panel unanimously upheld the lower court's decision. Writing for the court, Judge David Barron ([link removed]) , a Barack Obama (D) appointee, said ([link removed]) :
[A]lthough Doughty and Severance assert that their claim for damages seeks to vindicate their First Amendment right against compelled speech and association and that this right provides protection from harm that the common law itself did not, they ignore the unusual nature of their attempt to secure relief for the violation of that constitutional right. They thus develop no argument -- nor does any occur to us -- why close attention to the values and purposes of the First Amendment right against compelled speech and association supports the conclusion that the Congress that enacted § 1983 must have meant to create a claim for damages for its retroactive violation when the violation results in payments made pursuant to a lawful-when-invoked, state-backed process.
Judges Jeffrey R. Howard ([link removed]) and O. Rogeriee Thompson ([link removed]) , George W. Bush (R) and Obama (D) appointees, respectively, joined Barron's opinion.
** WHAT COMES NEXT?
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Patrick Semmens, vice president of the National Right to Work Legal Defense Foundation, said ([link removed]) his group would appeal the decision to the U.S. Supreme Court.
The case name and number are _Doughty v. State Employees' Association of New Hampshire ([link removed]) _ (19-1636).
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** WHAT WE'RE READING
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* The Alpena News (Michigan), "The woes of state’s largest public union," Dec. 2, 2020 ([link removed])
* The Hill, "What's behind the divisions over Biden's secretary of Labor?" Nov. 22, 2020 ([link removed])
* Competitive Enterprise Institute, "Biden to Focus on Public Sector Unions First?" Nov. 20, 2020 ([link removed])
* Wisconsin State Journal, "Teacher union recertification challenged by COVID-19 pandemic, but participation hasn't dropped," Nov. 20, 2020 ([link removed])
** THE BIG PICTURE
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** NUMBER OF RELEVANT BILL BY STATE
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We are currently tracking 102 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here ([link removed]) for a complete list of all the bills we're tracking.
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** NUMBER OF RELEVANT BILL BY CURRENT LEGISLATIVE STATUS
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** NUMBER OF RELEVANT BILL BY PARTISAN STATUS OF SPONSOR(S)
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** RECENT LEGISLATIVE ACTIONS
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No legislative actions have been taken on relevant bills since our last issue.
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