Union leaders can’t predict the future.

That’s what judges around the country are saying in rulings rejecting a batch of lawsuits filed by anti-union groups that are trying to capitalize on a 2018 Supreme Court decision by forcing bargaining groups to pay back fees they collected from non-union workers.

The cases allege that public sector unions should have known the Supreme Court eventually would undo a 41-year-old precedent and forbid them from collecting so-called fair-share fees from non-union workers who benefited from contracts they negotiated.

The court two years ago did just that, ruling in a case known as Janus v. AFSCME that public sector unions could not collect fees from workers who did not want to pay them.

The court’s decision wasn’t a surprise for people who were following the case. But judges have rejected arguments that the expectation created a legal obligation for the unions to return money to non-union workers for fees collected in the years leading up to the Janus decision.

Before Janus, unions relied on the Supreme Court’s 1977 decision in Abood v. Detroit Board of Education, which said unions could collect “fair share fees” from non-union workers to cover collective bargaining costs but not political activity. Judges have said the unions relied in “good faith” on that precedent while awaiting the Janus decision.

“The union was not required to forecast changing winds at the Supreme Court and anticipatorily presume the overturning of Abood,” the Ninth Circuit Court of Appeals wrote in a Dec. 26 opinion. The appeals court rejected a case filed against AFSCME by Washington state worker Dale Danielson.

The opinion listed two dozen rulings from courts around the country rejecting the retroactive argument from groups such as the Virginia-based National Right to Work Legal Defense Foundation and the Washington-based Freedom Foundation.

One of them centered on California state government’s largest union, SEIU Local 1000. The U.S. District Court for the Eastern District of California ruled against Kourosh Hamidi, a compliance representative at the Franchise Tax Board who sought to have his fees returned.

The court ruled against Hamidi, who was represented by a National Right to Work Legal Defense Foundation attorney, in October. Hamidi had filed suit against SEIU Local 1000.

District Court Judge William Shubb said in his ruling that Local 1000 relied in good faith on the Abood decision in continuing to collect fees while awaiting the Janus ruling.

“Reading the tea leaves of Supreme Court dicta has never been a precondition to good faith reliance on governing law,” Shubb wrote in his decision, citing another case. “To find otherwise would force defendants to engage in ‘constitutional gambling’ and ‘decid[e] if they truly agree with the Supreme Court’s reasoning to avoid future liability.’”

Hamidi’s attorneys filed an appeal of Shubb’s decision to the Ninth Circuit in November.

The anti-union groups behind the case have said they plan to appeal some of the cases to the U.S. Supreme Court.

“Ultimately the Supreme Court will probably need to weigh in on this for the workers to get the justice that we believe they’re entitled to,” said Patrick Semmens, a spokesman for the National Right to Work Legal Defense Foundation.

Semmens said the foundation has filed about 20 lawsuits arguing for fees to be returned. Other groups have filed similar lawsuits. In total, about 50 of the lawsuits have been filed around the country, Semmens said.

“Special interests were willing to spend millions supporting Janus to win over a new majority of the Supreme Court,” SEIU Local 1000 spokesman Brian Nash said in an emailed statement. “Their repeated claims — post Janus — are nothing but thinly-veiled ploys to weaken unions and silence the voice of working people. By contrast, unions are proving in cases across the country that they were adhering to the law. Lawsuits that seek to game the judicial system to weaken unions are being rejected and dismissed.”

The lawsuits, often filed as class actions, typically seek two or three years’ worth of fees — however far back they are allowed to go under state statute of limitations restrictions, Semmens said.

This story was originally published February 4, 2020 at 6:00 AM with the headline "Unions should give back millions in fair share fees, groups argue in dozens of failing lawsuits."